PEOPLE v. BRIAN (2007)

The defendant, who is barely sentient enough to perceive the difference between right and wrong legally (having an i.q. of less than 60) admitted to a violation of attempted forcible touching, PL 100.130.52.

The defense argues that because the defendant has a permanent mental and/or physical disability that keeps him from ever engaging in income-producing activity, the Court should not assess the various fees outlined in Penal Law 60.35 at the time of sentence.   The People and the Attorney General's Office Bureau of Appeals and Opinions have declined to respond regarding the issue of the constitutionality of the law.

In order to respond to this question raised by the defense Penal Law Section 60.35 and Criminal Procedure Law Sections 420.10, 420.35 and 420.40 should be reviewed in light of the facts of the case in consideration of the issue of whether an apparently disabled defendant would be entitled to a hearing before being sentenced to determine if such disability is a permanent bar to him being able to engage in income-producing activity to earn income from which to ever pay the PL 60.35 fees;  and, whether such laws as applied to him would be a due process violation of his constitutional rights.

Law

In People v. Dunn, 254 A.D.2d 511, 680 N.Y.S.2d 125 (1998), lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451, cert. denied 527 U.S. 1024, 119 S.Ct. 2372, 144 L.Ed.2d 775, the Court observed that “[I]t has been repeatedly held that Penal Law Section 60.35 and CPL 420.35 treats all persons convicted of Penal Law offenses similarly, and that the penalties imposed pursuant thereto bear a reasonable relationship to the State's legitimate intent in raising revenues (see, People v. Barnes, 62 N.Y.2d 702, 476 N.Y.S.2d 528, 465 N.E.2d 35 ․)” (id. p. 512, 680 N.Y.S.2d 125).

In People v. Amorosi (2001), 96 N.Y.2d 180, 726 N.Y.S.2d 339, 750 N.E.2d 41, the Court stated “․ depriving probationers of conditional freedom based simply on their indigence would be an invidious denial to one class of defendants of a substantial benefit available to another (Bearden v. Georgia, 461 U.S. 660 [103 S.Ct. 2064, 76 L.Ed.2d 221] ․)” (id. p. 184, 726 N.Y.S.2d 339, 750 N.E.2d 41).

 In Bearden v. Georgia (1983), 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221, the Court found that when a person has made a bona fide effort to pay a Court ordered fine and to “deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.   Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment” (id. pps. 672-673, 103 S.Ct. 2064).

 In Ross v. Moffitt (1974), 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, the Court said the due process clause of the Fourteenth Amendment “․ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated” (id. p. 609, 94 S.Ct. 2437).

 In Grossman v. Baumgartner, 17 N.Y.2d 345, 271 N.Y.S.2d 195, 218 N.E.2d 259, the Court stated that “[A] statute ․ will be upheld as valid if it has a rational basis, that is, if it is not unreasonable, arbitrary or capricious.  (See, e.g., United States v. Caroline Prods. Co., 304 U.S. 144, 152 [58 S.Ct. 778, 82 L.Ed. 1234] et seq. ․” id. p. 349, 271 N.Y.S.2d 195, 218 N.E.2d 259).

In People v. Pergament, 87 Misc.2d 1098, 387 N.Y.S.2d 791, the Court concluded that “․ as long as the relationship between the means used and the end desired to be accomplished is not arbitrary, capricious or unreasonable our courts cannot substitute their judgment over that of the legislative body see Grossman v. Baumgartner, 17 N.Y.2d 345, 271 N.Y.S.2d 195, 218 N.E.2d 259” (id. p. 1100, 387 N.Y.S.2d 791).

 In Railroad Retirement Board et al. v. Alton Railroad Co. et al., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468, the Court said “[W]hen the question is whether the Congress has properly exercised a granted power the inquiry is whether the means adopted bear any reasonable relation to the ostensible exertion of the power [citations omitted].   When the question is whether legislative action transcends the limits of due process ․ decision is guided by the principle that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained [citation omitted]” (id. p. 348, 55 S.Ct. 758).

Decision

The decision of the legislature to deny a waiver of these fees by the Court after 1995 was based either on overlooking those people subject to them who, due to mental and/or physical disability, could not engage in any income-producing activity and had no other assets that could be used to pay them or the false premise that all criminal defendants could engage in income-producing activity from which sooner or later these assessments could be paid.

 Until 1995 CPL 420.35(2) the law provided that “the judge ․ may waive all or any part of the mandatory surcharge, when, because of the indigence of the offender, the payment of said surcharge would work an unreasonable hardship on the person ․”

In 1995, the legislature changed the statute and made it quite clear the court could no longer waive the mandatory surcharge (with one “ “minor” exception), the crime victim assistance fee, the Sex Offender Registration Fee or the DNA Databank fee.   The legislative language instructs that the “court shall be mindful of the mandatory nature of [such assessments]” and the important criminal justice and victim services sustained by such fees” (CPL 420.40 [3] ) in making a decision to defer the payment of them and that “․ under no circumstances shall [such assessments] be waived ․” (CPL 420.35[2] ).

Penal Law Section 60.35(8) that “․ at the time [these fees are] imposed ․ [the] Court;  shall issue and cause to be served upon the person required to pay [such fees] a summons directing that such person appear before the Court regarding the payment of [them], if after sixty days from the date it was imposed it remains unpaid” and the “․ summons shall state that the person served must appear at a date, time and specific location specified in the summons if after sixty days [any of these fees] remains unpaid.”

The sole criteria allowed to be used by the Court in determining whether to grant a deferment, jail the defendant for nonpayment or a waiver (of crime victim fee) is whether at the time the Court makes its ruling it finds these payments would “work an unreasonable hardship upon [the defendant]” (CPL 420.35 [1], [2], and CPL 420.40[2] ) due to the defendant's “indigence.”

CPL 420.35(1) states that “[T]he provisions of Section 420.10 ․ and the provisions of Section 420.40 ․ governing deferral of [the fees] ․ and the provisions of Section 430.20 ․ governing the commitment of a defendant for failure to pay a fine shall be applicable to [these fees];” and “[W]hen a Court directs that the defendant be imprisoned until [these fees are] satisfied, it must specify a maximum period of imprisonment not to exceed fifteen days.”

In the case where a deferment of the payment is allowed or a jail term is imposed for nonpayment (CPL 420.35[1] ) a civil judgment for the amount due “shall” be filed against the defendant for the amount due (CPL 420.40[5] ).

The Court finds that before and after 1995 Penal Law 60.35 assessments had to be imposed on all defendants without exception based on a premise that each defendant had the ability to pay the total due within an initial 60 day period by making a reasonable effort.   Before 1995 CPL 420.35(1) qualified this premise by allowing a judge the right to waive all or part of a PL 60.35 assessment when “because of the indigence of the offender, the payment would work an unreasonable hardship on the person ․”

It is clear that in the case of a defendant whose mental and/or physical disabilities made it impossible to engage in income-producing activities and who had no other assets at the time of sentence, such person was indigent per se and would be granted an automatic waiver of the assessments by the judge as these payments “would work an unreasonable hardship on the person” suffering such disabilities.

It can be said, then, that while the legislature did not specifically exclude a disabled person who had no means to earn a livelihood because of an inability to engage in income-producing activity, the general waiver power encompassed that situation giving relief to one who was indigent solely due to mental and/or physical disabilities.

After 1995 the legislation was changed to state that “[U]nder no circumstances shall the mandatory [PL 60.35 assessments] be waived” (with one “minor” exception) (CPL 420.35[2] ).   This made the basic premise that each defendant had the ability to pay the total due within a 60 day period after it was ordered by the Court by making a reasonable effort, unmodified by the ability of the judge to waive the assessments in the case of an individual whose permanent mental and/or physical disabilities prohibited such person from engaging in income-producing activities (making him per se indigent), a false premise.

It would be counter-intuitive to assume the legislature would expect a person whose permanent mental and/or physical disabilities precluded any ability to engage in income-producing activity who had no other asserts and who is totally dependent to survive on Federal and/or State programs supported by tax revenue, nonetheless to be able to make the same effort as others without impairments so assessed under PL 60.35 to make any payment ever, much less 60 days.

The Court finds that the Legislature simply overlooked this class of disabled defendants when abolishing a full waiver of the obligation to pay PL 60.35 assessments after 1995 because they were not singled out for relief before 1995 as they were subsumed in the general waiver available to others before the change of the statute so consideration of them went unnoticed.

 That being the finding of the Court, the Court also finds PL 60.35 was never meant to be applied to a person so permanently mentally and/or physically disabled that such a person could never engage in income-producing activity.   To rule otherwise would create a question of whether the enactment was constitutional for “[I]t is hornbook law that a Court will not pass upon a constitutional question if the case can be disposed of in any other way ․ McKinney's Cons. Laws of N.Y., Book 1, Statutes, Section 150 ․” (People v. Felix (1983), 58 N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 N.E.2d 757).

There is a constitutional issue in this case as well that would support the relief requested by the defense.   In reviewing the constitutionality of this law the Court is guided by the guidelines explained by the Court in Brady et al. v. A Certain Teacher, (1995), 166 Misc.2d 566, 632 N.Y.S.2d 418:

“[A]t the outset, the Court observes that there are several principles of statutory construction and interpretation as pertain to constitutional challenges which are applicable here.   First that [t]he courts should not strike down a statute as unconstitutional unless such statute clearly violates the Constitution' (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 150 [a] ).   Second, that [s]tatutes are presumed valid and constitutional and the one challenging the statute has the burden of showing to the contrary' (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 150[c] ).

 Applying these principles it has been held that it is with great reluctance and as a last resort that the courts will strike down a solemn legislative enactment on the ground that it conflicts with the State or Federal Constitution (see, Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545 [104 N.E.2d 898] [1952] ).   It has also been held that every presumption will be indulged in to support and sustain legislation, and it will be assumed that the Legislature intended to enact a statute which is in harmony with the Federal and State Constitutions (see, People v. Epton, 19 N.Y.2d 496 [281 N.Y.S.2d 9, 227 N.E.2d 829] [1967], mot. to amend remittitur granted 19 N.Y.2d 1017 [281 N.Y.S.2d 1015, 228 N.E.2d 908] [1967];  People v. Arez, 64 Misc.2d 723 [314 N.Y.S.2d 504] [1970], affd. 28 N.Y.2d 764 [321 N.Y.S.2d 372, 269 N.E.2d 915] [1971] ).   It has been further held that the party alleging the unconstitutionality of a statute has the heavy burden of demonstrating the infirmity beyond a reasonable doubt (see, Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358 [413 N.Y.S.2d 357, 385 N.E.2d 1284] [1978];  Matter of Schultz Mgt. v. Board of Stds. & Appeals, 103 A.D.2d 687 [477 N.Y.S.2d 351] [1984] affd. 64 N.Y.2d 1057 [489 N.Y.S.2d 902, 479 N.E.2d 247] [1985] ).

 Significantly, it has been held that courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases involving life and liberty and where the invalidity of the act is apparent on its face (see, People v. Norris, 46 Misc.2d 44 [258 N.Y.S.2d 967] [1965];  National Psychological Assn. for Psychoanalysis v. University of State of NY, 18 Misc.2d 722 [188 N.Y.S.2d 151] [1959], affd. 10 A.D.2d 688 [199 N.Y.S.2d 423] [1960], affd. 8 N.Y.2d 197 [203 N.Y.S.2d 821, 168 N.E.2d 649] [1960], appeal dismissed 365 U.S. 298 [81 S.Ct. 691, 5 L.Ed.2d 688] [1961] ), and that this rule is particularly to be applied in a case where the court of Appeals has rendered decisions in the area covered by the statute (see, Matter of Excelsior Pictures Corp. v. Regents of Univ. of State of NY, 2 A.D.2d 941 [156 N.Y.S.2d 800] [1956], affd. 3 N.Y.2d 237 [165 N.Y.S.2d 42, 144 N.E.2d 31] [1957];  Blye v. Globe-Wernicke Realty Co., 68 Misc.2d 948 [328 N.Y.S.2d 257] [1972], appeal dismissed 30 N.Y.2d 749 [333 N.Y.S.2d 174, 284 N.E.2d 158] [1972] ) or where the Court of Appeals has implicitly, if not, explicitly upheld the validity of the statute (see, Blye v. Globe-Wernicke Realty Co., 68 Misc.2d 948 [328 N.Y.S.2d 257], supra;  People v. Norris, 46 Misc.2d 44 [258 N.Y.S.2d 967], supra).”  Id. pps. 571-572, 632 N.Y.S.2d 418.

The Dunn Court ruled “that Penal Law Section ․ CPL 420.35 treats all persons convicted ․ similarly” (id. p. 511, 680 N.Y.S.2d 125). It does not.  CPL 420.35 incorporates CPL Sections 420.10 and 430.20 as being “applicable” to hearings on the failure to pay PL 60.35 assessments.   The underlying assumption in which these laws are based is that any person assessed under PL 60.35 has the financial ability at the time of sentence to pay what is due or will be able to do so within 60 days of the date of sentence by engaging in income producing activity.

The defendant whose permanent mental and/or physical disabilities keep him from engaging in income-producing activities present at the time of sentencing deprive him of the opportunity all able bodied defendants have to engage in income-producing conduct to pay the assessment before 60 days to avoid the entry of a civil judgment or to show evidence of such efforts to a court to avoid jail and be granted a deferral of the payments if not paid within 60 days.

So, if the whole constitutional foundation for PL 60.35 and CPL 420.35 is that “all persons” are treated “similarly” in that all are initially assessed the same amounts and that they are expected to pay the same in full within 60 days and for those who do not their efforts to do so will be reviewed as a basis to avoid jail or be granted a deferral of the payments, while the debt imposed is equal in amounts, the right to avoid a civil judgement and/or jail after it is not paid within 60 days is a benefit denied to the disabled individual and given the non-disabled defendant.

The Court finds that this statutory outcome “would be an invidious denial to one class of defendant [disabled] of a substantial benefit available to another [non-disabled defendants]” (Amorosi, supra, p. 184, 726 N.Y.S.2d 339, 750 N.E.2d 41).-the “substantial benefit” being able to avoid the consequences of a failure to pay PL 60.35 assessments within 60 days a totally disabled defendant could not enjoy due to not having an income protecting capacity.

There is a violation of the Due Process Clause of the Fourteenth Amendment which “emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated” (Ross v. Moffitt, supra, p. 609, 94 S.Ct. 2437).

To uphold a statute “․ as valid [it must have] a rational basis, that is, if it is not unreasonable, arbitrary or capricious ․” (Grossman, supra, p. 349, 271 N.Y.S.2d 195, 218 N.E.2d 259) and the “question of whether legislative action transcends the limits of due process ․ [the inquiry] is guided by the principle that the law shall not be unreasonable, arbitrary or capricious (Alton R.R. Co., supra, p. 348 [55 S.Ct. 758] );  and, if it is determined” “․ the relationship between the means used and the end desired to be accomplished is not arbitrary, capricious or unreasonable Courts cannot substitute their judgment over that of the legislative body” (Pergament, supra, p. 1111, 387 N.Y.S.2d 791).

The Court finds that while PL 60.35 treats “all persons convicted of Penal Law offenses similarly” (Dunn, supra, pps. 511-512, 680 N.Y.S.2d 125) in that all defendants are subject to equal assessments, the “relationship between the means used and the end desired” (Pergament ) is arbitrary and unreasonable and thus “․ transcends the limit of due process” (Alton R.R. Co., supra, p. 348, 55 S.Ct. 758) because the law allows able bodied persons 60 days to pay what is due to avoid the consequences of not making the payment while denying the same opportunity to other members of this class of defendants [this] “substantial benefit” (Amorosi, supra, p. 184, 726 N.Y.S.2d 339, 750 N.E.2d 41) who cannot engage in income-producing activity due to a permanent mental and/or physical disability.

In People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 913, Chief Judge Breitel in his dissenting opinion observed the “[W]hile justice and law may not be coextensive, and indeed they are not, a divergence too great is not tolerable or acceptable under constitutional limitations based on due process of law, equal protection of the law and cruel and unusual punishment.   Margin for discrepancy there may be between law and justice but not an ocean's breadth justified only by adherence to the letter” (id. p. 701, 385 N.Y.S.2d 525, 350 N.E.2d 913).

In this case the Court finds that the “divergence” between “justice and law ․ is too great ․ under constitutional limitations based on due process of law” because the margin for discrepancy [is] an ocean's breath “justified only by adherence to the letter” (id. ).   So regardless of how other defendants are treated by these laws due process “emphasizes fairness between the state and the individual dealing with the state” (Ross, supra, p. 609, 94 S.Ct. 2437).   To “justify” expecting the disabled defendant to make effort of non-disabled individuals within 60 days to pay these assessments without any consideration of his ability to do so before such are assessed “justified only by adherence to the letter” of the law amounts to the state treating him as an individual unfairly in violation of due process for making unreasonable and arbitrary demands of him he can not comply with due solely to a permanent disability.

Conclusion

The Court finds that the legislature overlooked persons too disabled to engage in gainful employment when it charged CPL 420.35(2) allowing a waiver of PL 60.35 fees in their cases by a Court to prohibiting such a waiver in 1995-the allowance of a deferral in payment of such assessments again did not deal with the fact certain permanent disabled individuals would never by able to earn income from which to pay such assessments at the time of sentence or in the future.

The defendant in this case is so mentally and/or physically permanently disabled he will never be able to engage in income-producing activities in order to raise funds to pay the PL 60.35 assessments to be made against him at the time of sentence or in the 60 day period thereafter allowed by statute.

This defendant, unlike others subject to the PL 60.35 assessments who are not permanently disabled at the time of sentence, is thereby deprived of this 60 days opportunity to earn the money to pay it a “substantial benefit” (Amorosi ) they enjoy giving them an opportunity to avoid jail and/or the consequences of a civil judgment entered against them.

The permanently disabled defendant is thus placed in a sisyphen conundrum as he is burdened with an ordeal impossible for him to complete which he cannot be relieved of by waiver of the PL 60.35 fees prohibited by statute.   The Court finds in such case the law is an unconstitutional violation of the due process cause of the Fourteenth Amendment under Bearden and Amorosi.

The defendant is granted a hearing by this Court to determine if the defendant's mental and/or physical disabilities permanently bar him from engaging in income-producing activity.

This decision shall serve as the judgment and order of the Court.

JAMES C. HARBERSON, J.