New York Law Review

Tag: Mandatory Surcharge

  • People v. Guerrero, 12 N.Y.3d 46 (2009): Mandatory Surcharge Need Not Be Orally Pronounced at Sentencing

    12 N.Y.3d 46 (2009)

    A mandatory surcharge and crime victim assistance fee, mandated by Penal Law § 60.35(1), are not part of a ‘sentence’ requiring a judge to pronounce them in the defendant’s presence during sentencing, as per CPL §§ 380.20 and 380.40.

    Summary

    Defendant Guerrero pleaded guilty to second-degree murder and was sentenced to 19 years to life. While the judge stated the agreed-upon sentence at the hearing, he did not mention the mandatory surcharge and crime victim assistance fee, though they were listed on sentencing documents. The New York Court of Appeals held that these assessments are not a part of the ‘sentence’ as defined by the Criminal Procedure Law (CPL). Therefore, the judge wasn’t required to pronounce them aloud during sentencing. The court reasoned the statute imposing these assessments describes them as distinct from any sentence, reinforcing their non-punitive, revenue-raising nature.

    Facts

    Felix Soriano Guerrero pleaded guilty to second-degree intentional murder. At his sentencing hearing, the judge confirmed the agreed-upon sentence of 19 years to life. However, the judge did not verbally mention the mandatory surcharge of $150 and a crime victim assistance fee of $2. These fees were included on the written sentencing documents signed by the clerk and the judge.

    Procedural History

    Guerrero appealed, arguing the surcharge and fee should have been pronounced in open court. The Appellate Division affirmed his conviction and sentence. The New York Court of Appeals granted leave to appeal to review the claim, ultimately affirming the Appellate Division’s order.

    Issue(s)

    Whether the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35(1) are part of a ‘sentence’ that must be pronounced by a judge in the defendant’s presence under CPL §§ 380.20 and 380.40.

    Holding

    No, because the mandatory surcharge and crime victim assistance fee are not considered part of the sentence itself, but rather are additional assessments levied at sentencing.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Sparber, where post-release supervision (PRS) was deemed an element of the sentence because the statute explicitly stated it was ‘a part thereof.’ Here, Penal Law § 60.35(1)(a) states the surcharge and fee are levied ‘in addition to any sentence required or permitted by law,’ indicating they are separate from the sentence itself. The Court also cited People v. Nieves, noting that orders of protection were not considered part of the sentence because the statute didn’t characterize them as such. The court reasoned that the legislative history of § 60.35 supports the view that the surcharge and fee were intended to raise revenue, not to be an additional punishment component. The court emphasized that the statute refers to a ‘surcharge’ or ‘fee,’ not a ‘penalty.’ Originally, the statute was titled ‘Mandatory penalty assessment,’ but the legislature changed it to ‘mandatory surcharge,’ eliminating the implication that it was punitive. The court quoted the legislative memo stating the change aimed to correct problems raised by attorneys and judges, clarifying implementation and minimizing confusion. In essence, the Court focused on the explicit language of the statute and its legislative intent to determine whether the surcharge and fee were integral to the sentence or merely ancillary financial obligations. They stated, “there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law (emphasis added), rather than as ‘a part’ of the sentence itself”.

  • People v. Quinones, 95 N.Y.2d 349 (2000): Permissibility of Simultaneous Restitution and Mandatory Surcharge

    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.

  • People v. J.K., 62 N.Y.2d 895 (1984): Mandatory Surcharge Cannot Be Applied to Youthful Offender Adjudication

    People v. J.K., 62 N.Y.2d 895 (1984)

    A mandatory surcharge cannot be imposed upon a defendant who receives a youthful offender adjudication because such an adjudication is not a judgment of conviction.

    Summary

    The New York Court of Appeals addressed whether a mandatory penalty assessment (now a surcharge) can be imposed following a youthful offender adjudication. The court held that it cannot. Because a youthful offender adjudication is not a judgment of conviction under New York Criminal Procedure Law, the plain meaning of the statute mandating the surcharge upon conviction for felonies, misdemeanors, or violations does not apply. The court reasoned that vacating the conviction and replacing it with a youthful offender finding has the practical and legal effect of a reversal, precluding the penalty assessment.

    Facts

    The facts of the underlying criminal offense are not specified in the opinion. The salient fact is that the defendant, J.K., was given youthful offender status.

    Procedural History

    The County Court ordered the imposition of a penalty assessment. The Court of Appeals reviewed the order, modifying it to vacate the penalty assessment and affirming the order as modified.

    Issue(s)

    Whether a mandatory penalty assessment (now a surcharge) can be imposed upon a defendant who receives a youthful offender adjudication, given that a youthful offender adjudication is not considered a judgment of conviction under New York law?

    Holding

    No, because a youthful offender adjudication is not a judgment of conviction; therefore, the statute mandating a surcharge upon conviction does not apply. Additionally, the vacatur of the conviction mandated by a youthful offender finding has the practical and legal effect of a reversal, which precludes the imposition of a penalty assessment.

    Court’s Reasoning

    The court’s reasoning centered on the interpretation of two key provisions of New York law: Penal Law § 60.35(1), which mandates a penalty assessment upon conviction for a felony, misdemeanor, or violation, and CPL § 720.35(1), which states that a youthful offender adjudication is not a judgment of conviction. The court applied the principle that when statutory language is clear and unambiguous, it must be given its plain meaning. Since a youthful offender adjudication is explicitly not a conviction, the mandatory surcharge provision does not apply. The court further reasoned that CPL 720.20(3) requires the conviction to be vacated when a youthful offender adjudication is made. Since Penal Law § 60.35(4) allows for a refund of the surcharge if the conviction is reversed, and the vacatur of the conviction pursuant to CPL 720.20(3) has “the practical and legal effect of a reversal,” the court concluded that imposing the surcharge in the first place would be inconsistent with the statutory scheme. The court cited People v. Gruber, 118 Misc.2d 363, for further support of this conclusion. The Court emphasized the plain language of the statute, stating, “When the language of a statute is clear and unambiguous, the court is constrained to give effect to the plain meaning of the statute’s words.”