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Supreme Court, Bronx County, New York.

The PEOPLE of State of New York, v. Joseph HAZEL, Defendant.

Decided: September 28, 2006

Bronx Defenders (Robin G. Steinberg and Lily J. Shapiro of counsel), for defendant. Robert T. Johnson, District Attorney (Jean Soo Park and David S. Weisel of counsel), for plaintiff.

Defendant moves pursuant to Section 420.40(2) of the Criminal Procedure Law to defer payment of the mandatory surcharge, crime victim assistance fee and DNA databank fee imposed in this case (collectively “the surcharges”).   The People take the position that the Court lacks authority to defer payment of the surcharges associated with state prison inmates under the statute, and the papers of both sides illustrate that there is a split of authority among the lower courts concerning that question.   Compare People v. Hopkins, 185 Misc.2d 312, 712 N.Y.S.2d 796 (Sup.Ct. Kings Co.2000) with People v. Huggins, 179 Misc.2d 636, 685 N.Y.S.2d 881 (County Ct. Greene Co.1999);  see also People v. Allen, 13 Misc.3d 1208(A), 2006 WL 2663756 (Sup.Ct. N.Y. Co.2006);  People v. Bailey, 6/1/2001 N.Y.L.J. at p. 20, col. 5 (Sup.Ct. Queens Co.2001) (Rotker, J.);  People v. Llanos, 8/4/2000 N.Y.L.J. at p. 28, col. 2 (Sup.Ct. Bronx Co.2000) (Price, J.);  People v. Parker, 183 Misc.2d 737, 704 N.Y.S.2d 790 (Sup.Ct. Kings Co.2000).

This Court has located one decision in which the Appellate Division, Fourth Department, held that a lower court had “erred in determining that it lacked authority pursuant to CPL 420.40(2) to defer the mandatory surcharge” in a case involving an inmate.   See People v. Kistner, 291 A.D.2d 856, 736 N.Y.S.2d 924 (4th Dept.2002).   While the opinion in Kistner does not contain an extensive analysis of the reasons for that holding, there can be little question that the Fourth Department considered the precise issue involved here.   This Court is required to follow the Kistner decision.   Indeed, absent contrary authority from the Court of Appeals or the First Department, this Court is always bound by principles of stare decisis to follow the Appellate Division decisions issued by the other Judicial Departments of this State.   See People v. Turner, 5 N.Y.3d 476, 482, 806 N.Y.S.2d 154, 840 N.E.2d 123 (2005);  Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664-65, 476 N.Y.S.2d 918 (2nd Dept.1984).

Nevertheless, the Court is required to deny defendant's motion to defer the surcharges here.   Both the language of Section 420.20(2) and the cases applying the statute demonstrate that, in order to obtain deferral of the surcharges, an inmate is required to provide “credible and verifiable information” demonstrating that collection of these fees “would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates.”   See People v. Abdus-Samad, 274 A.D.2d 666, 712 N.Y.S.2d 63 (3rd Dept.), leave denied, 95 N.Y.2d 862, 715 N.Y.S.2d 217, 738 N.E.2d 365 (2000);  accord, People v. Kistner, 291 A.D.2d at 856, 736 N.Y.S.2d 924.   Defendant has not made the requisite showing.

Defendant claims that seven of the eight dollars that he receives each month are “deducted for payment of the surcharge.”   See Affidavit of Joseph Hazel, sworn to August 4, 2006, ¶ 2. Defendant asserts that he is “generally left with only twenty-five cents per month,” but does not explain what happens to the remaining seventy-five cents of the dollar that is not allegedly deducted for the surcharge.   See id.   That discrepancy is significant here;  after all, three of the four “necessary items” identified in defendant's affidavit cost less at the commissary than seventy-five cents.   See id.

Next, defendant nowhere explains why it is that fully 7/8 of his funds are removed from his account each month to pay the surcharge.   It appears to be a long-standing policy of the Department of Correctional Services recognized in several reported cases to deduct only twenty percent of an inmate's earnings for a given surcharge, and only fifty percent of any funds that are obtained as gifts from friends and relatives.   See, e.g., Matter of Begun v. Goord, 249 A.D.2d 861, 671 N.Y.S.2d 1026 (3rd Dept.1998);  People v. Parker, 183 Misc.2d 737, 704 N.Y.S.2d 790 (Sup.Ct. Kings Co.2000);  People v. Holmes, 10/1/93 N.Y.L.J. at p. 26, col. 2 (Sup.Ct. Kings Co.1993);  People v. Scantlebury, 4/26/91 N.Y.L.J. at p. 26, col. 1 (Sup.Ct. Kings Co.1991).   The Court cannot simply assume, without further explanation, that defendant is being treated differently from other inmates and that prison officials are departing from well-settled standards for his case alone.

Finally, no one can doubt that the four items identified by defendant a toothbrush, toothpaste, soap and shampoo are necessary for personal hygiene.   Yet, defendant has not made the showing that the appellate courts in our state require that his purported inability to purchase these articles constitutes an unreasonable hardship when compared to the hardships ordinarily imposed on other inmates who are indigent.   See People v. Abdus-Samad, 274 A.D.2d at 667, 712 N.Y.S.2d 63.   That is particularly important here, for the Court is entitled to presume, absent a showing otherwise, that corrections officials are providing for defendant's basic needs, including any essentials for appropriate hygiene in a prison setting.   See, e.g., Corrections Law § 137;  accord, People v. Parker, 183 Misc.2d at 738, 704 N.Y.S.2d 790.   While defendant claims that he is unable to buy the items that he has identified, his affidavit lacks any firm claim that appropriate substitute articles are not already being provided to him, and he has not explained how his inability to make his desired purchases sets him apart from other indigent inmates.

For all of the reasons set forth above, defendant's motion is denied.

The foregoing constitutes the Decision and Order of the Court.


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