People v. Jones

• Decision Date: 18 February 2016
• Docket Number: No. 2.,2.
• Citation: 26 N.Y.3d 730,47 N.E.3d 710,2016 N.Y. Slip Op. 01208,27 N.Y.S.3d 431
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony JONES, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 730

47 N.E.3d 710

27 N.Y.S.3d 431

2016 N.Y. Slip Op. 01208

The PEOPLE of the State of New York, Respondent

v.Anthony JONES, Appellant.

No. 2.

Court of Appeals of New York.

Feb. 18, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York City (Kristina Schwarz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Sheila L. Bautista and Alan Gadlin of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

Defendant claims that his due process rights were violated when the sentencing court refused to consider his request to defer payment of a mandatory surcharge imposed upon him pursuant to Penal Law § 60.35. We conclude that the applicable statutory scheme provides no such discretion to the sentencing court, and therefore we affirm the Appellate Division.

I.

Defendant pleaded guilty to criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). At sentencing, Supreme Court imposed two concurrent six-month terms of imprisonment, and a $300 mandatory surcharge for each conviction pursuant to Penal Law § 60.35. The court rejected defendant's request to defer the surcharge, concluding that it lacked authority to do so. The Appellate Division affirmed and, as relevant here, held that because defendant was sentenced to a term of incarceration longer than 60 days he could seek relief from the surcharge only in postsentencing proceedings, by way of a motion to resentence, pursuant to CPL 420.10(5) ( 115 A.D.3d 490, 490–491, 982 N.Y.S.2d 309 [1st Dept.2014] ). A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1038, 993 N.Y.S.2d 252, 17 N.E.3d 507 [2014] ).

Defendant claims that CPL 420.40 establishes the procedure for deferral of mandatory surcharges, and because that section does not limit when a person may seek such relief, the sentencing court had authority to consider his request for a deferral. The People counter that a request to defer may only be considered after sentencing by way of a motion to resentence, and in defendant's case, only at the end of his incarceration. We agree that a court lacks authority at sentencing to consider a request to defer the mandatory surcharge, but find no statutory support for the People's position that defendant may only seek such relief upon release from confinement.

As discussed more fully below, the relevant statutes prohibit judicial waiver of a mandatory surcharge, require collection of any unpaid amounts from an inmate's funds as of the moment of confinement and throughout the period of incarceration, and provide for deferral under limited circumstances, namely an inability to pay that is not solely due to incarceration. A person

subject to a mandatory surcharge may seek to defer payment at any time after sentencing, by way of a motion to resentence under CPL 420.10(5). In addition, persons sentenced to confinement of 60 days or less may avoid filing such motion, and instead present information in support of a request to defer on the appearance date set forth on a summons issued pursuant to Penal Law § 60.35(8). Under either procedural mechanism, if the court grants a deferral it must place its reasons on the record (CPL 420.40[4] ; 420.10[5] ), and issue a written order, which shall be treated as a civil judgment in accordance with CPLR 5016 (CPL 420.40[5] ; 420.10[6][a] ). This statutory scheme is structured to further the legislative goals of raising revenue and ensuring payment of the mandatory surcharge by persons convicted of crimes.

II.

Mandatory surcharges are referenced throughout the Penal Law and the Criminal Procedure Law, which require close and careful reading to harmonize the various interconnected and cross-referenced provisions. Indeed, the statutes governing mandatory surcharges have been characterized as “poorly drafted and difficult to follow” (Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 420.40 ). We now turn to these statutes, cognizant that “our primary consideration is to ascertain and give effect to the intention of the Legislature” (People v. Ballman, 15 N.Y.3d 68, 72, 904 N.Y.S.2d 361, 930 N.E.2d 282 [2010], quoting Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] [internal quotation marks and citation omitted] ), and that “when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v. Williams, 19 N.Y.3d 100, 103, 945 N.Y.S.2d 629, 968 N.E.2d 983 [2012] ).

Penal Law § 60.35(1)(a) states, with exceptions not relevant to this appeal, that for anyone convicted of a felony, misdemeanor or violation “there shall be levied at sentencing a mandatory surcharge ... in addition to any sentence required or permitted by law, in accordance with the ... schedule” set forth in this provision. The statute further provides that

“[w]hen a person who is convicted of a crime or violation and sentenced to a term of imprisonment has failed to pay the mandatory surcharge ... the clerk of the court ... shall notify the superintendent or the municipal official of the facility where the person is confined. The superintendent or the municipal official shall cause any amount owing to be collected from such person during [the person's] term of imprisonment from moneys to the credit of an inmates' fund or such moneys as may be earned by a person in a work release program [as provided for under the Correction Law]” (see penal law § 60.35[5][A] ).

In the case of a person sentenced to confinement for 60 days or less,

“at the time that the mandatory surcharge ... is imposed a town or village court may, and all other courts shall, issue and cause to be served upon the person required to pay the mandatory surcharge ... a summons directing that such person appear before the court regarding the payment of the mandatory surcharge ... if after sixty days from the date it was imposed it remains unpaid” (Penal Law § 60.35[8] ).

The summons must set an appearance date for the first day court is in session after the sixtieth day. The statute specifically prohibits issuance of such summons “to a person who is being sentenced to a term of confinement in excess of sixty days,” and instead provides that “[t]he mandatory surcharges ... for those persons shall be governed by the provisions of section 60.30” of the Penal Law (Penal Law § 60.35[8] ). That section states,

“This article does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty and any appropriate order exercising such authority may be included as part of the judgment of conviction” (Penal Law § 60.30 ).

Initially, courts had authority to waive the surcharges, but in 1992, in response to apparent judicial laxity in granting such waivers, and in order “to limit what ha[d] become perceived as the routine remission and waiver in some cases of surcharges ... intended to be mandatory” (Governor's Approval Mem., Bill Jacket, L. 1992, ch. 794 at 14, 1992 Legis. Ann. at 503 [1992 N.Y. Senate Bill S9031] ), the legislature amended CPL 420.35 and included language that courts be “mindful”

that the surcharge was mandatory, and of “the important criminal justice and victim services” sustained by the surcharge and other fees (Mem. of Div. of Budget, Bill Jacket, L. 1992, ch. 794 at 8, 1992 Legis. Ann. at 502). Thereafter, with the enactment of the Sentencing Reform Act of 1995, the legislature greatly cabined judicial authority to waive and remit the mandatory surcharge (see L. 1995, ch. 3). As amended, CPL 420.35(2) reads that “[u]nder no circumstances shall the mandatory surcharge ... be waived,” except in cases involving a statutorily defined, albeit discrete, category of defendants, not relevant here. (See CPL 420.35 [2 ], as renum. and amended by L. 1995, ch. 3, §§ 67–68 [eff. July 1, 1995].)^* In the same vein, the relevant language in 420.30(3) provides that “[i]n no event shall a mandatory surcharge ... be remitted.” Thus, the legislature could not be clearer in communicating its intent to restrain the judiciary from discharging a person's obligation to pay the statutorily imposed amount.

As part of the same 1995 legislative reform package, the legislature enacted CPL 420.40, titled “[d]eferral of a mandatory surcharge; financial hardship hearings,” which governs, inter alia, deferral of mandatory surcharges imposed pursuant to Penal Law § 60.35(1) (see CPL 420.40, as added by L. 1995, ch. 3, § 70 [eff. July 1, 1995] ). This section in no way signaled a legislative retreat from its commitment to securing payment of these surcharges and its interest in directing the exercise of judicial authority. Quite to the contrary. For example, CPL 420.40 includes explicit language similar to that previously contained in CPL 420.35 and 420.30, that when assessing a request to defer payment “the superior court shall be mindful of the mandatory nature of the surcharge ... and the important criminal justice and victim services sustained by such fees” (CPL 420.40[3] ; see L. 1995, ch. 3, §§ 67–70).

By its terms, CPL 420.40 “governs the deferral of the obligation to pay all or part of a mandatory surcharge ... imposed

pursuant to subdivision one of section 60.35 ... and financial hardship hearings relating to mandatory surcharges” (CPL 420.40[1] ). According to the statute's procedural requirements, in those cases “[w]here a court determines that it will defer part or all of a mandatory surcharge,” the court's “statement of such finding and of the facts upon which it is based shall be made part of the record” (CPL 420.40[4] ). Furthermore, a court may only defer the mandatory surcharge by written order, and “[s]uch order shall not excuse the person from the obligation to pay the surcharge” (...