Opinion
No. 1394–2010.
2012-07-2
The PEOPLE of the State of New York, v. David COFFMAN, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County, (Jennetta G. Philbert, Esq., of Counsel), for the People of the State of New York. David Coffman, Pro Se.
Robert T. Johnson, Esq., District Attorney, Bronx County, (Jennetta G. Philbert, Esq., of Counsel), for the People of the State of New York. David Coffman, Pro Se.
DOMINIC R. MASSARO, J.
Pursuant to CPL § 420.40, Defendant David Coffman, appearing pro se, moves to defer the mandatory surcharge imposed by the Court at the tine of sentencing in the above indictment. Defendant seeks relief upon grounds he lacks sufficient funds, income and property at this time to pay the surcharge. Defendant asks the Court to determine his eligibility to defer the mandatory surcharge, which is in an unspecified amount.
The prosecutor reports that the mandatory surcharge amount is $300.00.
The parties do not further specify the amount, allocation, or nature of the mandatory surcharges and fees involved in this motion. At various times, Defendant refers to his inability to pay both surcharges and fees.
Background
According to the District Attorney, on June 24, 2010, Defendant pled guilty to Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.39). On September 22, 2011, this Court sentenced Defendant to a term of three years incarceration, two years post-release supervision, and a mandatory surcharge of $300. Defendant asks the Court to defer payment of the mandatory surcharge.
Defendant's Position
Defendant wants the Court to consider the following circumstances in determining whether relief is available concerning the mandatory surcharge and presumably any fees. First, Defendant says that due to incarceration, he has no way to pay a mandatory surcharge because as an inmate he receives no money other than prison wages of $35.20 monthly. Further, the mandatory surcharge works an unreasonable hardship upon him, above that imposed upon other inmates, because any money remaining after paying the surcharge and fees is insufficient to meet his basic hygienic needs. Most significantly, Defendant feels the surcharge is being applied differently to him than to other inmates under similar circumstances (see generally, People v. Nolley, 219 A.D.2d 882 [4th Dept.1995] ).
Prosecutor's Position
The District Attorney opposes the application because Defendant is not entitled to relief because he fails to present credible and verifiable evidence establishing the mandatory surcharge should be deferred due to Defendant's indigence and/or upon his unreasonable hardship (see, CPL 420.40[2] ). Defendant fails to prove that his hardship is any different from that of other inmates or otherwise unreasonable (see generally. People v. Hazel, 13 Misc.3d 728 [Sup Ct. Bronx 2006] [inability to purchase hygienic products no different from other inmates] ). Further, Defendant's request for relief is too vague to satisfy the requirements of CPL § 420.40 (see generally, People v. Abdus–Samad, 274 A.D.2d 666 [3rd Dept.2000] ). Significantly, he does not claim responsibility for anyone's support; thus, no indication exists that timely payment would cause unreasonable hardship beyond ordinary hardship experienced by other similarly situated inmates (see generally, People v. Hazel, supra ).
Legal Discussion
Article 60 of the Penal Law authorizes, among other things, sentences which include a mandatory surcharge and a crime victim assistance fee in addition to any sentence required or permitted by law (see, Penal Law § 60.35[1][a] [I] ). Article 420 of the Criminal Procedure Law provides the Court with various options concerning payment and collection of the mandatory surcharge (see generally, CPL § 420.10[1]; CPL § 420.35 and CPL § 420.40).
Defendant correctly seeks deferral of the mandatory surcharge independent of appeal of his sentence (see generally, People v. Nolley, supra ). In this regard, payment deferment for either the mandatory surcharge or the crime victims' assistance fee is not given simply for the asking (see, People v. Sabino, 2010 N.Y. Slip Op 31291U [Sup Ct. Kings 2010] ).
To qualify for deferment, Defendant must provide credible and verifiable evidence that shows that, because of indigence, payment of the surcharge would work an unreasonable hardship upon him or his family (see generally, People v. Pierce, 16 Misc.3d 1126A [Sup.Ct. New York 2007] ). At least one trial court found that while no explicit statutory authority exists for deferring the mandatory surcharge for a defendant imprisoned more than 60 days, trial courts have implicit authority under CPL § 420.40 to defer payment in accordance with the standards set forth in CPL § 420.40(2) (see generally, People v. Taylor, 2008 N.Y. Slip Op 30900U [Sup Ct. Kings 2008] ).
Turning to case law under CPL § 420.40(2), the Court finds that an inmate must provide credible and verifiable evidence showing that collection of the surcharge and/or fees would work an unreasonable hardship upon him over and above the ordinary hardship suffered by other indigent inmates (see, People v. Kistner, 291 A.D.2d 856 [4th Dept.2002] ). Surcharge deferment is not appropriate upon this record because there is no credible and verifiable information establishing that the surcharge would cause any hardship upon Defendant over and above ordinary hardship suffered by other indigent inmates (see generally, People v. Abdus–Samad, supra.). Moreover, Defendant fails to show, or even allege, that he is responsible for supporting an immediate family member adversely affected by the deductions from his prison earnings (see, People v.. Taylor, supra.). Even allowing Defendant the benefit of treating his submission in the best possible light in view of the fact that he is pro se and not a person familiar with legal procedure, the Court cannot find that he alleges any adequate facts or alleges any theory upon which it is possible for the Court to suspend payment at this time.
Upon this record,
the Court finds that Defendant sets forth no grounds upon which to set aside or defer the surcharge and fee. Accordingly, Defendant's motion is DENIED, with leave to renew, upon submission of appropriate evidence in accordance with the requirements discussed above.
In deciding the instant motion, the Court read the following documents: (1) Notice of Motion to Defer Payment of a Mandatory Surcharge, Defendant's Affidavit in Support of Motion to Defer Payment of Mandatory Surcharge, and (2) Affirmation in Opposition of Jennata G. Philbert, Esq.
If the motion is renewed, parties are to submit a copy of the judgment or other documents specifying the mandatory surcharge and any fees.
The foregoing constitutes the Decision and Order of the Court.