Issues In NY Criminal Law--Vol. 7, #8

Issue: New and Higher Surcharges for Crimes, Traffic Charges

When a criminal defendant or motorist is convicted of an offense, a variety of penalties may be imposed. Aside from punishment such as incarceration or probation, there is a burgeoning list of financial sanctions.

When first enacted in 1982 (L 1982, ch 55, § 81), the “penalty assessment,” as originally called, was $75 for a felony, $25 for a misdemeanor and $15 for a violation. The law was changed a year later, now called a “mandatory surcharge,” to reinforce that judges lack authority to not impose them.

Bellicose words

At the time, Joseph Bellacosa wrote: “It is difficult to imagine how the financial benefits to be achieved will justify the cost of implementing this ‘p.r.’ gimmick. Even if relatively successful, the use of the criminal court system to produce additional State revenues is a troubling concept which deserves reevaluation. Moreover, the amounts imposed have the potential to trivialize the seriousness with which society’s outrage at the commission especially of malum in se crimes should be expressed.” See former Practice Commentary to McKinney’s CPL 420.35.

This observation now has a quaint quality to it, like 30 cents for a gallon gasoline. Times have changed, and the State Legislature has increasingly found “taxing crime” as a way to seemingly balance the state budget.

Traffic infractions did not initially come within the statute’s ambit. Surcharge laws have since been expanded so that errant motorists now come within the mandatory surcharge.

Different Types of Fees

Some fees went into effect as of July 1, 2008, others as of August 1, 2008. The list of financial sanctions that courts impose include: mandatory surcharge, additional surcharge, second additional surcharge, crime victim assistance fee (CVAF), sex offender victim fee, supplemental sex offender victim fee, and sex offender registration fee, as well as DNA databank fee.

If the conviction is in a town or village court, there is an additional $5. Penal Law § 60.35(9), VTL § 1809(9).

DNA AND DNA AND DNA

The $50 DNA databank fee applies to many misdemeanors and all felonies. Penal Law § 60.35(10); Exec L § 995(7). New York State estimates that nearly half of all persons convicted of Penal Law offenses will require the DNA sample and consequent fee. See http://www.criminaljustice.state.ny.us/forensic/dnaoffenses.htm

Y.O., Adrian

Youthful Offenders must now also pay the mandatory surcharge and CVAF, a statutory change that occurred effective February 2005. Penal Law § 60.35, VTL § 1809.

A person adjudicated as a Y.O. does not pay the DNA databank fee, SORA registration fee, or sex offender victim fee. Penal Law § 60.02(3).

Restitution and Reparation

If restitution or reparation has already been made, no mandatory surcharge or CVAF is imposed. Penal Law § 60.35(6), VTL § 1809(6).

That’s Fine for You

With the plethora of fees, and their mushrooming size, an offender really need be less concerned about a fine, which is usually discretionary with the court. After all the assessments are assessed, a judge who feels the need to include a discretionary fine may be perceived as engaging in “piling on.”

Excelsior (“Ever Upward”)

Thus, where a driver pleads guilty to a traffic ticket, a town or village justice may conclude that an “unconditional discharge” or “conditional discharge” is appropriate. But the person doesn’t leave the courthouse without paying a mandatory surcharge ($55), additional surcharge ($20), crime victim assistance fee ($5), and the fee ($5) that town and village court charge. Total: $85.

An equipment violation will require $55 in mandatory fees.

It is unclear who the crime victim is with an equipment violation. Or how that ostensible victim is being assisted.

Sex Offenses

Of course, truly bad people must be penalized, particularly sex offenders. What is interesting in the list of fees is that the State Legislature has imposed a “supplemental sex offender victim fee.” But one should not assume that the sex offense victim receives this; rather, the victim fee goes to the state’s coffers.

As does the aforementioned crime victim assistance fee.

Drinking-driving Offenses

Next on the list of those to be penalized are those convicted of drinking-driving offenses, of any level. They will pay a (largely mandatory) fine. Plus the surcharge. Plus the crime victim assistance fee. Plus, after the court case is concluded, for the next three years an annual $250 Driver Responsibility Assessment (DRA). VTL §§ 503(4), 1199. A person who refuses to take the chemical test also pays the DRA. VTL § 1199(1).

A drinking-driving defendant will also pay an “additional surcharge” of $25, and a “second additional surcharge” of $170.

Thus a defendant convicted of misdemeanor DWI will henceforth typically pay six separate assessments: a fine of $500 to $1000, surcharge of $175, additional surcharge of $25, second additional surcharge of $170, a crime victim assistance fee of $25, and a town/village court fee of $5. And afterwards, the $250 DRA for each of three years.

Counties also may adopt a local law to add a $30 monthly administrative fee for probation for VTL article 31 (drinking-driving) convictions. This shall not constitute a condition of probation. Exec L § 257-c.

Traffic

Another group who must pay are those who commit traffic infractions. Such an offender must pay the (possible though not mandatory) fine, plus the newly increased surcharge, as well as the crime victim assistance fee. And, a driver who has accumulated more than six points on a driver’s license must pay the Driver Responsibility Assessment. If six or more points are accumulated within an 18-month period, the driver must pay $100 for a three year period, plus an additional $25 per year for each additional point above six that remains on the license. VTL §§ 503(4), 1199.

The new surcharges that are now in effect (pursuant to L 2008, ch 58, Part DD), are found in Penal Law § 60.35 and VTL §§ 1809 et seq. For further information, see http://www.communityalternatives.org/pdfs/fees%20chart.pdf

Don’t Scoff

Where a driver’s license has been suspended for failure to appear or pay a fine, the suspension remains in effect until a $35 termination of suspension fee is paid. The fee is paid for each suspension terminated, up to a total of $200. VTL § 503(j-a)( i).

	Mandatory Assessments
	Surcharge	Additional surcharge	Second additional surcharge	CVAF	Town Village fees	Total
Felony	300			25		$325
Misdemeanor	175			25	5	$205
Violation	95			25	5	$125
DWI felony	300	25	170	25		$520
DWI misdemeanor	175	25	170	25	5	$400
DWAI	55	25	170	5	5	$260
VTL infraction (except standing, parking, pedestrian, bicyclist)	55	20		5	5	$85
VTL equipment violations (VTL§ 375)	25	20		5	5	$55
Non-Penal Law misdemeanor	175			25	5	$205

Refund of an improper surcharge may be had with the state comptroller. VTL § 1809(4). Rather few may be expected to apply.
The erroneous imposition of fees can be a fertile ground for appellate litigation, e.g., where the fee was not in effect at the time the offense was committed. See, e.g., People v Febres, 11 AD3d 319, 783 NYS2d 545 (1st Dept 2004). As an example, assigned appellate counsel and prosecutorial response as well as judicial review by five judges resulted in a $50 DNA fee being removed. People v Moses, 19 AD3d 248, 798 NYS2d 12 (1st Dept 2005). Is the juice worth the squeeze?

“Sentencing for Dollars”

Many people are able to pay fines and all these other assessments. But a legislator who ever visited a typical courthouse would find it largely dealing with indigent defendants. Public defenders and assigned counsel represent most defendants, whose ability to pay these fees is largely illusory.

Where the defendant is incarcerated, the state may need to obtain these sums via a judgment, to be deducted from whatever is earned while incarcerated. Penal Law § 60.35(5)(a). A judge may also specify in the “Remarks” section of commitment papers that fees are not to be collected from inmate funds.

Or, the court may be burdened with the need to conduct a “financial hardship hearing” – not for waiver of a fee but deferral. The court must set forth findings and facts on the record. CPL 420.40(4). The CPL stresses that “Under no circumstances shall the mandatory surcharge . . . be waived,” CPL 420.35(2), and adjures the judge that “In assessing such information the superior court shall be mindful of . . . the important criminal justice and victim services sustained by such fees.” CPL 420.40(3).

Keeping track of which of these fees applies to which offenses and the applicable time period for the applicable fee may be daunting for any clerk or judge or attorney seeking to advise a client. The state, in its efforts to ensure that no fee is left behind, has a password-protected website for checking these fees: www.nycourts.gov/justicecourts

Making these multiple fees mandatory and non-waivable may be turning the courts of this state from a system of justice into a bill collection agency, akin to the DMV’s administrative adjudication bureau. VTL § 225.

Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.

Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.

Gary Muldoon
144 Exchange Boulevard
Rochester, NY 14614
(585) 262-5130