People v. Morrison

• Decision Date: 21 May 2012
• Citation: 949 N.Y.S.2d 570,2012 N.Y. Slip Op. 22192,36 Misc.3d 880
• Parties: The PEOPLE of the State of New York v. John MORRISON, Defendant. The People of the State of New York v. Shevon Johnson, Defendant. The People of the State of New York v. Charles Jay, Defendant. The People of the State of New York v. Simeon Olmos, Defendant.
• Court: New York Supreme Court

36 Misc.3d 880

949 N.Y.S.2d 570

2012 N.Y. Slip Op. 22192

The PEOPLE of the State of New York

v.John MORRISON, Defendant.

The People of the State of New York

v.Shevon Johnson, Defendant.

The People of the State of New York

v.Charles Jay, Defendant.

The People of the State of New York

v.Simeon Olmos, Defendant.

Supreme Court, New York County, New York.

May 21, 2012.

The motions were all filed pro se.

There was no response by the People.

LEWIS BART STONE, J.

These four applications raise similar issues of law in an area where there is little precedent, various practices, and a controlling statute which the official commentary to McKinney's New York Criminal Procedure Law (“CPL”) characterizes as “poorly drafted and difficult to follow.” Preiser's Commentary to CPL § 420.40.

Defendant John Morrison (“Morrison”) moved, pursuant to CPL § 420.40, for an order of this Court to defer mandatory surcharges imposed upon him, pursuant to Penal Law (“PL”) § 60.35, when Morrison was sentenced on November 17, 2011, to a term of imprisonment in state prison, following his conviction to one count of AttemptedBurglary in the Second Degree and two counts of Burglary in the Third Degree, under three separate indictments.

Defendant Shevon Johnson (“Johnson”) moved pursuant the same provision for a similar order to permit him to defer similar surcharges imposed on him when he was sentenced on November 10, 2011, to a term of imprisonment in state prison, following his conviction by plea to Criminal Possession of a Forged Instrument in the Second Degree.

Defendant Charles Jay (“Jay”) moved pursuant to the same provision for a similar order to permit him to defer similar surcharges imposed upon him when he was sentenced on December 8, 2011, to a term of imprisonment in state prison following his conviction by plea to Attempted Criminal Sale of a Controlled Substance Near School Grounds.

Defendant Simeon Olmos (“Olmos”) moved pursuant to CPL § 420.35, for a waiver of a surcharge imposed upon him when he was sentenced on July 1, 2010, to a term of imprisonment in state prison, after conviction by plea to one count of Attempted Burglary in the Second Degree, on the grounds of indigence.

Each of these defendants were sentenced to prison terms in excess of sixty days, were convicted by plea, and waived their rights to appeal. While CPL § 420.40 establishes a procedure which “governs the deferral of the obligation to pay all or part of a mandatory surcharge, sex offender registration fee or DNA data bank fee imposed pursuant to ... [PL § 60.35] ... and financial hardship hearings relating to mandatory surcharges,” no provision of the CPL provides for a waiver of all such surcharges. CPL § 420.35(3).

Under CPL § 420.40, a defendant upon whom surcharges are imposed pursuant to PL § 60.35 is accorded an opportunity to seek deferral (but not waiver) of the collection of such surcharges on the grounds of “unreasonable hardship” at a hearing “on an appearance date set forth in a summons issued pursuant to subdivision three ¹ of Section 60.35 of the penal law.” However, PL § 60.35(8)also expressly provides: “The court shall not issue a summons under this subdivision to a person who is not being sentenced to a term of confinement in excess of sixty days in jail or in the department of correctional services.”

In none of the four cases here had such summons been issued to these defendants and no summons may be issued as each was sentenced to state prison. Accordingly, the Court has no jurisdiction under CPL § 420.40 to hold a deferral hearing, which hearing is the sole statutory route authorizing a court to defer the collection of a surcharge.

The CPL treats surcharges differently than fines, restitution or reparation, imposed or to be imposed on a convicted defendant. The term “mandatory” is used to distinguish surcharges from fines, restitution or reparations imposed where the imposition of the latter involves the substantial discretion of the sentencing court. Two express provisions of the CPL reinforce the mandatory nature of surcharges. CPL § 420.30, which provides a procedure for a post sentence remission of fines, restitution or reparation imposed in the case of financial hardship, expressly excludes “mandatory surcharges” from this procedure. CPL § 420.30(2). Further, CPL § 420.35(2), added to the CPL by Chapter 3 of the Laws of 1995 (“Chapter 3”), expressly provides that mandatory surcharges may not be waived.² For this reason alone, Olmos' motion for a waiver of surcharges must be denied.

Under PL § 60.35(5) the collection of mandatory surcharges from incarcerated prisoners is to be achieved by a deduction from prisoners' accounts, including moneys earned by prisoners and funds placed in such accounts by friends and relatives. As prisoners' “wages” are often trivial, a prisoner without external contribution from friends or relatives or personal resources may find himself or herself without spending money. For example, Olmos notes that his “only source of income is my prison wages of $3.72 per week.” At that rate, absent other funds in his account, it would take him about two years to pay off his mandatory surcharge obligation.

While a court may not remit or waive Penal Law surcharges, this Court is aware that from time to time, courts purporting to act in their discretion, have entered judgment upon a mandatory surcharge or have deferred the collection of a mandatory surcharge to a date following the completion of a sentence. Several Fourth Department decisions, both decided before and after the enactment of Chapter 56 of 2004, seem to recognize this power, but in none of such decisions has the Fourth Department actually deferred the surcharges, therefore rendering the language of such cases effectively dicta rather than holding. Further, this Court has found no decision articulating any standard for a decision to exercise, or to refuse to exercise such discretion, to defer a surcharge on a defendant sentenced to more than sixty days or any decision finding such an exercise or lack of exercise to be reviewable, on appeal, on the grounds of abuse of discretion.

On the other hand, the Court of Appeals in People v. Furet, 12 N.Y.3d 740, 876 N.Y.S.2d 696, 904 N.E.2d 832 (2009) and in People v. Harris 12 N.Y.3d 741, 876 N.Y.S.2d 696, 904 N.E.2d 832 (2009), held that mandatory surcharges being mandatory, were automatic and were conditions resulting from a sentence, and thus respectively did not have to be pronounced by a Court at the time of sentence and could properly be entered by the Clerk of the Court. On the same date the Court of Appeals decided Furet and Harris, the Court in People v. Hoti, 12 N.Y.3d 742, 878 N.Y.S.2d 645, 906 N.E.2d 373 (2009) (a case in which this Court took Hoti's plea and sentenced him) held that the failure to advise a defendant of the imposition of surcharges “did not deprive the defendant of the opportunity to knowingly, voluntarily and intelligently” enter into a plea, distinguishing People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005]. In making such determinations, that Court distinguished surcharges from post release supervision, which is a component of a sentence and not a mere consequence.

Under CPL § 420.30, which requires a court to defer a surcharge in a hearing on the return of a summons to pay a surcharge in the case of “unreasonable hardship” upon a defendant “or his immediate family,” there is a clear standard for review of a court's determination. The lack of any standard elsewhere is a strong indication that under the statutory scheme no deferral authority exists for a court to defer a surcharge except under § 420.30. This conclusion follows from the “universal principle in the interpretation of statutes that expressio unis est exclusio alterius. That is to say, the specific mention of one person or thing implies the exclusion of other persons or things. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded.” McKinney's New York Statutes § 240.

Further, as all defendants here agreed to pleas which did not provide for a deferral or remission of their surcharges, none has preserved any right to raise such issue on appeal. Further, as each defendant also waived his rights to appeal, such waiver, even under the dicta of the Fourth Department cases, precludes any considering a deferral of the surcharges on a post judgment motion. People v. Camacho, 4 A.D.3d 862, 771 N.Y.S.2d 481 (4th Dept.2004).

The collection of surcharges from prisoners, painful though it may be for prisoners with little money, is a clear and intentional judgment of the legislature to do so. In People v. Guerrero, 12 N.Y.3d 45, 49, 876 N.Y.S.2d 687, 904 N.E.2d 823 (2009) the Court of Appeals noted, “Section 60.35 was originally enacted as part of a massive revenue-raising bill meant to “avert the loss of an estimated $100 million in State tax revenues.” (Legislative Memo. in Support, Bill Jacket, L. 1982, ch. 55, at 6); see also People v. Quinones, 95 N.Y.2d 349, 352, 717 N.Y.S.2d 86, 740 N.E.2d 231 [2000] ( [“The mandatory surcharge/crime victim assistance fee is paid to the State to shift costs of providing services to victims of crime from law abiding taxpayers and toward those who commit crimes” (internal quotations marks omitted) ] ); and People v. Barnes, 62 N.Y.2d 702, 703, 476 N.Y.S.2d 528, 465 N.E.2d 35 [1984] ( [mandatory surcharge levied and collected following every criminal conviction “appear(s) to be related ... to the State's legitimate interest in raising revenues”] ).

Further, even the post-Chapter 3 Fourth Department cases state that the mere fact that an incarcerated defendant is indigent does not itself create any basis for deferring a surcharge. Clearly these decisions imply that the mere indigence of an...