People v. Hakes

• Decision Date: 13 December 2018
• Docket Number: No. 139,139
• Citation: People v. Hakes, 32 N.Y.3d 624, 94 N.Y.S.3d 221, 118 N.E.3d 883 (N.Y. 2018)
• Parties: The PEOPLE of the State of New York, Appellant, v. Brian HAKES, Respondent.
• Court: New York Court of Appeals Court of Appeals

32 N.Y.3d 624

118 N.E.3d 883

94 N.Y.S.3d 221

The PEOPLE of the State of New York, Appellant,

v.Brian HAKES, Respondent.

No. 139

Court of Appeals of New York.

Decided December 13, 2018

OPINION OF THE COURT

FEINMAN, J.

The principal question presented in this case is whether, as a condition of probation, sentencing courts can require a defendant to wear and pay for a Secure Continuous Remote Alcohol Monitoring ("SCRAM") bracelet that measures their alcohol intake.We hold that they can.

In enacting Penal Law § 65.10(4), the legislature specifically authorized sentencing courts to require defendants to wear an electronic monitoring device.Similar to other statutorily-authorized conditions of probation that implicitly require defendants to pay certain costs (seePenal Law § 65.10[2] ), the costs associated with wearing a functioning SCRAM bracelet are part and parcel of satisfaction of the condition itself.However, if a defendant demonstrates—either at the time the sentence is imposed or during the probationary period—that they are unable to afford the costs attached to a condition despite bona fide efforts to do so, the sentencing court must attempt to fashion a reasonable alternative to incarceration.Conversely, if a defendant willfully refuses to pay the costs associated with a condition when able to do so, a sentencing court is justified in revoking the defendant's probationary sentence and imposing a sentence of incarceration.

In December 2012, defendantBrian Hakes pleaded guilty to felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle, an unclassified misdemeanor.County Court sentenced defendant to a term of six months' incarceration, concurrent with five years' probation.As a condition of his probation, the court required defendant to wear and pay for a SCRAM bracelet¹ upon his release from jail.Defendant made several payments for the SCRAM bracelet, but then stopped, resulting in the bracelet's removal by the monitoring company.Defendant claimed that an injury interfered with his ability to work and earn the income necessary to pay the monitoring fee.After a hearing on the matter, County Court revoked defendant's probation upon its determination that defendant had violated a condition of his probation because he was no longer wearing the SCRAM bracelet and imposed an indeterminate state prison term of one to three years.The Appellate Division, among other things, reversed the judgment of County Court on the basis that the sentence imposed was illegal because sentencing courts cannot require a defendant to pay for the cost of electronic monitoring ( People v. Hakes , 143 A.D.3d 1054, 1056, 39 N.Y.S.3d 299[3d Dept.2016] ).Thereafter, a Judge of this Court granted leave to appeal (29 N.Y.3d 997, 57 N.Y.S.3d 719, 80 N.E.3d 412).We now reverse.²

"To a greater or lesser degree, it is always true of probationers ... that they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions’ "( Griffin v. Wisconsin , 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709[1987], quotingMorrissey v. Brewer , 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484[1972];seePeople v. Hale , 93 N.Y.2d 454, 461, 692 N.Y.S.2d 649, 714 N.E.2d 861[1999]["In New York, as in other jurisdictions, a sentence of probation is an option among various sentencing alternatives short of confinement [and] ....[t]he probationer, although not physically confined, remains in the legal custody of the court for the probationary period"] ).Keeping in mind that probation is the product of statute, "our inquiry must focus solely on whether, having determined that probation was the appropriate criminal sanction for defendant, County Court acted within the parameters of the probationary sentencing structure authorized by Penal Law § 65.10"( People v. Letterlough , 86 N.Y.2d 259, 265–266, 631 N.Y.S.2d 105, 655 N.E.2d 146[1995] ).³

In 1965, section 65.10 was added to the Penal Law, providing, "[i]n general" that "[t]he conditions of probation and of conditional discharge shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so"( Penal Law § 65.10[1], as added by L 1965, ch 1030).Subdivision 2 of section 65.10 went on to enumerate conditions of probation that a court could impose on a defendant, including, among other things, that a defendant shall

"[r]efrain from frequenting unlawful or disreputable places[,] ...

‘‘[w]ork faithfully at a suitable employment ... or pursue a course of study or of vocational training[,] ...‘‘[u]ndergo available medical or psychiatric treatment[,] ...

‘‘[s]upport [their] dependents[,] ...

‘‘[m]ake restitution or make reparation, in an amount [they] can afford to pay ... [and]

‘‘[p]ost bond or other security for the performance of all conditions"( Penal Law § 65.10[2], as added by L 1965, ch 1030).

Subdivision 2 also provided a catchall provision which allowed sentencing courts to set "any other conditions reasonably related to [a probationer's] rehabilitation"( Penal Law § 65.10[2][l][former (i) ] ), as added by L 1965, ch 1030).While additional conditions were subsequently added to subdivision 2(seePenal Law § 65.10[2][a]-[k], L 1995, ch 40), the legislature did not substantially change section 65.10 until 1996, following two decisions of this Court regarding a sentencing court's ability to impose specific conditions of probation.

In People v. Letterlough , the first of these decisions, this Court reviewed a sentencing court's authority to require, as a condition of probation, that a defendant"affix to the license plate of any vehicle he drives a fluorescent sign stating ‘CONVICTED DWI’ "( 86 N.Y.2d at 260, 631 N.Y.S.2d 105, 655 N.E.2d 146[emphasis in original] ).The Court held that the imposition of this condition was beyond the authority of the sentencing court because " Penal Law § 65.10 quite clearly restricts probation conditions to those reasonably related to a defendant's rehabilitation"( id. at 265, 631 N.Y.S.2d 105, 655 N.E.2d 146, citingPenal Law § 65.10[2][l][the "catchall" provision] ).Thus, the legislature plainly intended to authorize conditions that are "rehabilitative in nature," even though "many—such as those requiring a probationer to make restitution, refrain from frequenting ‘disreputable places’ or to participate in an alcohol or substance abuse program ... may have incidental punitive and deterrent effects"( Letterlough , 86 N.Y.2d at 264–265, 631 N.Y.S.2d 105, 655 N.E.2d 146;see 65.10[2][a]-[k] )."Despite the inherent overlap and the difficulty in drawing lines between rehabilitative and punitive or deterrent sanctions, the Legislature did not mention punishment or deterrence as goals to be obtained through the imposition of probationary conditions pursuant to Penal Law § 65.10"( id. ).

A year later, in People v. McNair , this Court again examined the authority of a sentencing court to set a condition of probation—this time the requirement that a defendant, who had pleaded guilty to felony driving while intoxicated, wear an electronic monitoring device for a year ( 87 N.Y.2d 772, 774, 642 N.Y.S.2d 597, 665 N.E.2d 167[1996] ).The Court held that the condition was once more beyond the authority of the sentencing court, stating that the case was "remarkably similar to Letterlough in that the sentencing court's ‘true design was not to advance defendant's rehabilitation, but rather to warn the public of,’ or in this case protect the public from, ‘the threat presented by [defendant's] presence behind the wheel’ "( id. at 775, 642 N.Y.S.2d 597, 665 N.E.2d 167[some internal quotation marks omitted], quotingLetterlough , 86 N.Y.2d at 266, 631 N.Y.S.2d 105, 655 N.E.2d 146 )."Because the sentencing court's true aims in this case were public safety and surveillance, not rehabilitation, Letterlough requires that the condition of electronic monitoring be invalidated"( McNair , 87 N.Y.2d at 775, 642 N.Y.S.2d 597, 665 N.E.2d 167 ).The Court opined that the use of electronic monitoring was "the province of the Legislature, not the Judiciary"( id. ).

In 1996, in direct response to Letterlough and McNair(seeMemorandum in Support, Bill Jacket, L 1996, ch 653 at 7), the legislature added subdivision 4 to Penal Law § 65.10, authorizing a sentencing court to require "the defendant to submit to the use of an electronic monitoring device ... where the court, in its discretion, determines that ... such condition will advance public safety, probationer control or probationer surveillance"( Penal Law § 65.10[4], as added by L 1996, ch 653).The legislature commented that contrary to this Court's holding in McNair ,"[a] rational criminal justice system should insist that judges ... be scrupulously concerned about public safety in making sentencing decisions[,] ... particularly [ ] with respect to drunk driving, given its high recidivism rate and the awful carnage it causes"(Memorandum in Support, Bill Jacket, L 1996, ch 653 at 7).The legislature noted that when sentencing courts are "making the often difficult choice between imposing a sentence of probation or jail, the availability of electronic monitoring may be decisive"(Mem in Support, Bill Jacket, L 1996, ch 653 at 7).

The decision to sentence a defendant to probation as an alternative to jail or prison reflects a determination by the sentencing court that both society and the defendant would be better served by the individual's closely supervised release into the community, provided that certain reasonable conditions are met."Utilized in conjunction with these conditions, [ ] electronic monitoring was designed to allow defendant[s] to remain in the privacy of [their] own home with [their] family—instead of in prison—while learning to control [themselves] in the presence of alcohol"( ...