The defendant Daniel Nater moves this Court for an order under CPL 420.20 deferring or waving surcharges upon his conviction by negotiated plea to two counts of attempted robbery in the second degree in full satisfaction of the indictment in return for a promised sentence of six years. No element of the plea agreement referenced the mandatory surcharges. The defendant submits that the surcharges would work an unreasonable hardship on the defendant while incarcerated. The basis for the application is that in light of the defendant’s almost continuous history of incarceration due to crimes committed while drug addicted he is functionally penniless at this point. The defendant urges that whatever the amount aid to inmates who work while incarcerated it is too minimal to meet the demands of the surcharge amounts. The defendant contends that the result will be that there will be no money available out of his prison labor in his commissary for him to provide himself with what are determined to be “basic” hygienic necessities. Therefore the defendant seeks to have his surcharges waived until after his incarceration. While the defendant does not proposed any means by which he will be able after his term of incarceration to pay those surcharges, that factor may not be relevant as to the People’s position in the instant application. Addressing first the defendant’s request that “any and all mandatory surcharges be waived, the court notes that the Criminal Procedure Law does not authorize the outright waiver of any of the mandatory surcharges, DNA databank fees or the crime victim assistance fees for this defendant. See, CPL §420.35 (2); People v. Morrison, 36 Misc.3d 880. 882 [Sup Ct, NY County 2012]; but see, People v. Brian L, 17 Misc.3d 724 [Watertown City Ct. 2007 --- finding lack of waiver provision for disabled persons unconstitutional]. 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]). The legal standard regarding an application is whether the payment of the surcharge ” ‘would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates’ ” People v. Kistner, 291 AD2d 856, 856 [2002], quoting People v. Abdus-Samad, 274 AD2d 666, 667 [2000], lv denied 95 NY2d 862 [2000]; see CPL 420.40 [2]). In the sole case decided in this jurisdiction, People v. Hazel, 13 Misc.3d 728, 730-731 (Sup Ct, Bronx County 2006), Judge Dawson addressed the need for items of hygiene, in the context of the surcharges, the Court held the following on the same type of application: [D]efendant 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 AD2d at 667). That is particularly important here, for the court is entitled to presume, absent a showing otherwise, that correction officials are providing for defendant’s basic needs, including any essentials for appropriate hygiene in a prison setting (see, e.g., Correction Law §137; accord, People v. Parker, 183 Misc.2d at 738). 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. While waiver of the fees is barred by law, deferral is not. The official New York State form UCS-854, titled “Uniform Sentence & Commitment,” that is filled out in this court when a defendant is sentenced to incarceration on a felony, has special boxes about, among other things, fees imposed at sentencing, including the mandatory surcharge, the DNA databank fee, and the crime victim assistance fee. The choices for each of these and other fees are “Paid,” “Not Paid” and “Deferred — court must file written order [CPL §420.40 (5)].” Thus the deferral possibility is fully contemplated as part of the sentencing process. Further the evidence is that it must collect the fees from the defendant’s prison funds unless payment of the fees is marked “deferred” on the sentencing commitment. People v. Greenhalgh, 48 Misc.3d 755 (Cty Ct, Nassau County 2015). If deferred, the amount owed must be entered in an order, and become a judgment, by a procedure set forth in CPL §420.40(5) that tracks the language of CPL §420.10(6). While the State is entitled to the collection of the fees, there is no urgency to the collection of monies from a person under supervision. Nor is the State in such financial straits that the fees are of immediate need. In a recent calendar year it collected over $20 million from the formerly incarcerated according to a recent Comptroller’s Report. Fundamentally upon a conviction such fees are in essence “found money”. Whether it is taken from the prisoner’s commissary or collected later is, for the State, of no moment. But this deferral raises a fundamental issue. Should the Court defer the fees then the defendant is free to use his monies earned to purchase commissary but thereby insure that when the defendant finishes his sentence, he begins his re-entry hobbled by a civil judgment in default of which he could be further incarcerated. While money is debited from the meager commissary accounts prisoners use to buy snack food and toiletries, it fulfills the right of the state to collect fees. But even after release from prison, the court system slaps defendants with civil judgments to secure payment of surcharges. Thus upon reentry they begin with ruined credit and driven toward bankruptcy merely to meet the surcharge obligation. According to the City Comptroller in 2017 alone, “the city’s criminal courts issued more than 103,000 civil judgments for failure to pay court fees and fines. In 11,200 cases, courts issued a warrant for nonpayment, and in 161 cases, New York City defendants were ordered to be immediately incarcerated for nonpayment.” Errol Louis, NY Daily News Op-Ed p. 25 col. 1, Sept. 16, 2019. While the case law expands the legal requirement, the statute merely requires an assessment of the effect of such a levy upon the defendant. Courts have grafted on to the legislative language the requirement that the hardship be greater than any other prisoner as the standard. But the issue of financial hardship requires an assessment of the financial condition of the prisoner prior to imposition of the surcharge and subsequent to it.Further the standard of hardship as to a prisoner is also particular to each prisoner, otherwise the right is functionally empty. This defendant was incarcerated for almost 20 years. He was at liberty for about a year. He has a life long history of severe drug addiction that has not been remediated. The instant offenses, within a short time, appear to be a pattern of behavior like an old time brickie or the guy who threw a brick to get back to the security of jail or to obtain drug treatment. This practice is commonly done in order to take advantage of the benefits of free housing, meals, etc. provided while being incarcerated. See Urban Dictonary, https://www.urbandictionary.com/define.php?term=throw percent 20a percent 20brick. The defendant’s life long history of drug abuse has all but prevented him from ever earning a living outside a prison wall. This Court believes that to defer his surcharges until he leaves prison, given that his prospects are already difficult enough, would be the most unreasonable hardship. The addition of a civil judgment against him with possible wage garnishment or re-incarceration would in fact be the greater unreasonable hardship on the person. CPL 420.20. Accordingly, defendant’s motion is denied. This constitutes the decision and order of the Court. Dated: October 3, 2019 Bronx, New York
