95 N.Y.2d 349 (2000)
A sentencing court may simultaneously impose a sentence of restitution to the crime victim and a mandatory surcharge/crime victim assistance fee, consistent with Penal Law § 60.35 (6), until the defendant has actually made restitution.
Summary
The New York Court of Appeals addressed whether a sentencing court could simultaneously order restitution to a crime victim and impose a mandatory surcharge/crime victim assistance fee under Penal Law § 60.35(6). The Court held that such simultaneous imposition is permissible until the defendant has actually made restitution. This interpretation favors and encourages payment of restitution to the crime victim while ensuring the state recovers costs for victim services. The Court affirmed the Appellate Division’s order, finding no merit in the defendant’s additional claims.
Facts
The defendant was convicted of robbery charges stemming from two separate incidents. In the first, he and others robbed a taxicab driver at knifepoint, taking $100 and the cab itself. The second incident involved robbing another victim of 25 cents and a stick of gum, also at knifepoint. The defendant’s accomplices pleaded guilty and testified against him at trial.
Procedural History
The robberies were charged in separate indictments but joined for trial. After a jury found the defendant guilty on all robbery counts, the County Court imposed prison terms for each conviction. The court also ordered the defendant to pay $100 in restitution to the cab driver and imposed the mandatory surcharge and crime victim assistance fee for both robberies. The Appellate Division affirmed the County Court’s decision, and a Judge of the Court of Appeals granted the defendant leave to appeal.
Issue(s)
Whether, under Penal Law § 60.35 (6), a sentencing court may order a defendant who has not yet made restitution to pay both restitution and a mandatory surcharge/crime victim assistance fee.
Holding
Yes, because the plain language of Penal Law § 60.35(6) permits the imposition of both restitution and the mandatory surcharge/crime victim assistance fee until the defendant has actually made restitution.
Court’s Reasoning
The Court’s reasoning centered on the interpretation of Penal Law § 60.35(6), which states that “where a person has made restitution or reparation pursuant to section 60.27 of this chapter, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee.” The Court emphasized the use of the past tense “has made,” indicating that the exemption from the surcharge only applies after restitution has been completed. The Court noted that the Legislature could have prohibited the simultaneous imposition of both but chose not to. The Court stated, “The Legislature could have prohibited the imposition of both outright, but instead employed the past tense with regard to the payment of restitution and reparations under Penal Law § 60.27, thus indicating that until restitution has been paid a defendant can be ordered to pay the mandatory surcharge/crime victim assistance fee.” The Court also pointed to Penal Law § 60.35 (4), which provides a mechanism for a refund of the surcharge and fee if they are ultimately “not required” after restitution is made. This interpretation aligns with the legislative intent to prioritize restitution to victims while also ensuring funding for victim services through the surcharge. The Court acknowledged the split in Appellate Division Departments on this issue, siding with the Second and Fourth Departments’ view. The Court agreed with the Practice Commentary to Penal Law § 60.35 (6), noting the effect is to prefer and encourage payment of restitution to the crime victim.