Citation Numbers: 185 Misc. 2d 312, 712 NYS2d 796
Judges: Demarest
Filed Date: 7/14/2000
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Petitioner moved pro se pursuant to CPL 420.40 for deferral of the mandatory surcharge imposed at the time of his sentence. Petitioner was sentenced on April 22, 1999, to a term of incarceration of 10 years, following a conviction by plea of guilty to rape in the first degree on April 12, 1999. At that time
The People submitted a four-sentence paragraph in opposition to petitioner’s motion, contending that he fails to provide any compelling evidence of unreasonable hardship, and adding that he is regularly supplied with items deemed necessary to maintain proper standards of hygiene, and that nonessentials are available at reasonable prices at the prison commissary. The People did not address the petitioner’s argument that he needs to provide financial Support to his family.
Every inmate may receive compensation for work performed during his or her imprisonment (Correction Law § 187 [1]). Inmates may also earn an “incentive allowance” for the efficient and willing performance of duties assigned or for progress and achievement in educational, career and industrial training programs (Correction Law § 200). Funds earned by inmates are required to be deposited by the warden or superintendent of the institution at least once in each week to the inmate’s credit in banks designated by the comptroller (Correction Law § 116). The Department of Correctional Services is required to provide for the establishment of a credit system for each inmate and the manner in which such earnings shall be paid to the inmate or his dependents or held in trust for him until his release (Correction Law § 187 [3]).
The Commissioner of Correctional Services has broad administrative and discretionary authority over inmates’ access to wages during imprisonment (Matter of Cowart v Coombe, 247 AD2d 729 [3d Dept 1998]). “The amount of such compensation to the credit of any prisoner may be drawn by the prisoner during his imprisonment, only upon approval of the commissioner to aid dependent relatives of such prisoner, or for such other purposes as the commissioner may approve” (Correction Law § 189 [1]). The Department of Correctional Services may retain 20% of an inmate’s weekly earnings and 50% of any earnings received from any outside source to cover
Penal Law § 60.35 provides for imposition of the mandatory surcharge and crime victim assistance fee. Provisions concerning the collection, remission, and consequence of the failure to pay the surcharge are set forth in CPL 420.35. In 1995, the Criminal Procedure Law was amended to provide that under no circumstances shall the mandatory surcharge be waived (CPL 420.35 [2], as amended by L 1995, ch 3, eff July 1, 1995). The 1995 legislation also provided for deferral of the mandatory surcharge upon a finding that it will work an unreasonable hardship (see, CPL 420.40). The statute provides for a hearing to determine hardship for persons whose sentences do not exceed 60 days’ imprisonment. The procedure for the hearing is set forth in CPL 420.40 (2) and Penal Law § 60.35 (8).
The procedure for collecting the mandatory surcharge from incarcerated persons is found in Penal Law § 60.35 (5). In the
Scrutiny of the statutory scheme relating to collection of the mandatory surcharge reveals that the law does not provide a mechanism for deferral for incarcerated persons. Whether or not it was the intent of the Legislature to preclude deferral for such persons is difficult to determine. The legislation is “poorly drafted and difficult to follow” (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 420.40, 2000 Cumulative Pocket Part, at 111). Clearly, the statute specifically limits the availability of a hearing regarding deferral to persons who were not sentenced to imprisonment or who were sentenced to less than 60 days, suggesting that deferral for hardship is available only for those who would be self-supporting residents in the community. Moreover, the statute fails to specify what information or documentation an inmate would have to supply to the court in order to demonstrate entitlement to a deferral, or what procedure would have to be followed by incarcerated persons seeking to obtain a deferral. Significantly, as pointed out heretofore, the law does provide a mechanism to collect the surcharge from incarcerated individuals, as well as for collection of the surcharge in the event of nonpayment by nonincarcerated individuals in the same manner as a civil judgment (see, CPL 420.35 [1]; 420.10, 420.40 [5]). In view of all the foregoing, it would appear that the statutory scheme did not contemplate deferral as an option for incarcerated individuals.
The policy considerations underlying such a conclusion are supported to some extent by case law. Prior to the 1995 amendments prohibiting waiver of the surcharge, prevailing authority consistently held that prisoners could not obtain waivers until the expiration of their term of incarceration “since the de
The statutory language providing for waiver, before it was repealed in 1995, was nearly identical to the current statutory language providing for deferral. The waiver provision in CPL 420.35 (2) provided that the court may waive all or part of the mandatory surcharge “where, because of the indigence of the offender, the payment of said surcharge would work an unreasonable hardship on the person convicted or his or her immediate family” (language added by L 1983, ch 15, § 3; amended and designated as subd [2] by L 1990, ch 190, § 320; subd [2] repealed by L 1995, ch 3, § 67 and subd [4] redesignated [2] by L 1995, ch 3, § 68, and as so redesignated, prohibits the waiver of the mandatory surcharge). CPL 420.40 (2) provides that persons upon whom a mandatory surcharge was levied shall have an opportunity to establish that it should be deferred “because, due to the indigence of such person the payment of said surcharge would work an unreasonable hardship on the person or his or her immediate family.” In light of the authority holding that prisoners are not indigent, the absence of a mechanism in the law for incarcerated persons to obtain deferrals of the mandatory surcharge is logical.
Two nisi prius courts presented with applications for deferral by incarcerated individuals since the 1995 enactments have reached contrary results, although neither court questioned the availability of deferral. In People v Parker (183 Misc 2d 787 [Sup Ct, Kings County 2000]), the court denied the inmate’s application for deferral, holding that he had not demonstrated unreasonable hardship to himself or established that he was in any way responsible for the support of any immediate family member who has been adversely affected by the deductions from his jail earnings. The court did not address the failure of the statute to specify a procedure for seeking deferral by incarcerated individuals.
In People v Huggins (179 Misc 2d 636 [Greene County Ct 1999]), the court concluded that the mechanism for deferral set forth in Penal Law § 60.35 (8) and CPL 420.40 (2) is not available for persons sentenced to a term of confinement. The Huggins court nevertheless granted the deferral, interpreting Penal Law § 60.30, applicable to those incarcerated, as providing discretionary authority for the court to defer the mandatory surcharge to a definite future date in the case of incarcerated individuals. The court in Huggins did not address the extent to which an inmate is required to establish unreasonable hardship or indigence.
It is this court’s opinion that neither appellate authority, nor the provisions of the statute, authorize the granting of an application for deferral of the mandatory surcharge in the case of a person incarcerated in excess of 60 days. Moreover, the petitioner herein has not demonstrated that withholding a per
. CPL 420.40 (2) references subdivision (3) of Penal Law § 60.35. It is clear from the context that this is a misprint.
. While Penal Law § 60.35 (5) (a) provides that upon failure to pay, the clerk of the court is required to notify the superintendent of the facility to collect the surcharge from inmates’ funds, the statute does not specify a time within which the incarcerated individual is required to pay the surcharge, upon the expiration of which the warden may commence collection of the surcharge and fee. As a result, a direction by the court to the warden of the prison facility to collect the mandatory surcharge and crime victim assistance fee from inmates’ funds is commonly issued at the time of sentence, and such collection begins at the commencement of the confinement.