| People v Hakes |
| 2019 NY Slip Op 00324 [168 AD3d 1214] |
| January 17, 2019 |
| Appellate Division, Third Department |
[*1](January 17, 2019)
| The People of the State of New York,Respondent, v Brian Hakes, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Mulvey, J. Appeal (upon remittal from the Court of Appeals) from a judgment of the CountyCourt of Sullivan County (McGuire, J.), rendered December 4, 2013, which revoked defendant'sprobation and imposed a sentence of imprisonment.
As conditions of his probation, defendant was required to wear a Secure Continuous RemoteAlcohol Monitoring (hereinafter SCRAM) bracelet and to pay Rocky Mountain OffenderManagement System (hereinafter RMOMS) the costs associated with it monitoring that bracelet.The SCRAM bracelet was ultimately removed because defendant informed RMOMS that he wasunable to make the payments required for continued monitoring of the bracelet. After a violationof probation petition was filed against defendant and an evidentiary hearing was held, CountyCourt found that defendant knowingly violated the cited terms of his probation based upon hisfailure to make adequate efforts to pay the costs required for continued SCRAM monitoring,revoked his probation and resentenced him to a prison term of 1 to 3 years. This Court reversed,based on our finding that a sentencing court may not require a defendant to pay for the costassociated with an electronic monitoring program (143 AD3d 1054 [2016], revd32 NY3d 624 [2018]). On appeal by the People (29 NY3d997 [2017]), the Court of Appeals reversed, concluding that requiring defendant to wear and payfor a SCRAM bracelet as a condition of probation was "well within County Court's statutoryauthority under Penal Law § 65.10 (4)" (32 NY3d 624, 632 [2018]), and remitted to this Court to address in the first instance"defendant's challenge[ ] to County Court's finding that he was in willful violation of a conditionof his probation" (id. at 633).[FN1]
At a probation revocation hearing, "the People have the burden of proving by apreponderance of the evidence that [the] defendant violated a condition of his [or her] probation"(People v Songa, 132 AD3d1071, 1072 [2015]; see CPL 410.70 [3]; People v Turner, 136 AD3d 1111, 1112 [2016], lv denied27 NY3d 1140 [2016]). Where the basis for a defendant's violation of probation is premisedupon, as here, his or her failure to make a court-ordered payment, " 'a sentencing courtmust inquire into the reasons for the failure to pay' " (People v Songa, 132 AD3dat 1073, quoting Bearden v Georgia, 461 US 660, 672 [1983]). If thecourt—following a hearing where the defendant is afforded the opportunity to be heard inperson and present evidence to establish that he or she made sufficient bona fide efforts to pay(see CPL 410.70 [1], [3]; People v Amorosi, 96 NY2d 180, 185[2001])—determines that "the probationer willfully refused to pay or failed to makesufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probationand sentence the defendant to imprisonment within the authorized range of its sentencingauthority" (Bearden v Georgia, 461 US at 672; accord People v Songa, 132 AD3dat 1073; see32 NY3d at 632-633). If, however, theprobationer cannot pay "despite sufficient bona fide efforts to acquire the resources to do so, thecourt must consider alternate measures of punishment other than imprisonment" (Bearden vGeorgia, 461 US at 672; accord People v Amorosi, 96 NY2d at 184; People v Souffrance, 94 AD3d1024, 1024 [2012]; see 32 NY3d at 632-633;People v Songa, 132 AD3d at 1073), as "depriving probationers of conditional freedombased simply on their indigence would be an invidious denial to one class of defendants of asubstantial benefit available to another" (People v Amorosi, 96 NY2d at 184; seeBearden v Georgia, 461 US at 672-673; 32 NY3d at 632-633 People v Souffrance, 94 AD3d at 1024).
We agree with defendant that County Court erred in finding that the People established by apreponderance of the evidence that defendant violated the terms and conditions of his probationby willfully refusing to pay or failing to make sufficient good faith efforts to pay the cost of theSCRAM monitoring. Initially, the record reflects that when defendant received the SCRAMbracelet in June 2013, he acknowledged that he was financially responsible for the $11 daily costassociated with monitoring that device, that he raised no objection to that financial obligation andthat his mother, using money from her savings, made an initial payment on his behalf of $160and a subsequent payment of $300 in August 2013. Upon his release from jail in June 2013,defendant's sole source of food, shelter and transportation was his mother, who testified that, as aresult of being laid off from her employment, her monthly income was derived from meagerSocial Security benefits, which she used for car, insurance and cable television payments. Sheused her $150-$175 in monthly disposable income to pay for groceries and the transportation thatboth she and defendant required.
Defendant testified that, after being released from jail, he assisted his former boss with oddjobs to make money, which he would give to his mother. In late August 2013, however, hesustained a broken arm and wrist while assisting his former boss. After his injury and relatedsurgery, defendant continued to seek employment, but was unable to find suitable work due tohis injuries and the fact that a previous employer had ceased operations. On September 24, 2013,defendant met with his case manager at RMOMS and informed her that he had no income andthat he was unable to pay the $717 balance that he owed to RMOMS. Although defendant wasafforded the opportunity at that time to fill out a financial waiver form that could have reducedthe daily cost of the SCRAM monitoring to no less than $4, he was also told that he couldcontinue to wear the device only if he could make a payment within the next two weeks, whichdefendant—who still had his arm in a cast at that time—explained he would beunable to do.[FN2] Further,defendant's mother testified that she was unable to make any additional payments on defendant'sbehalf given her financial circumstances and that her attempts to solicit financial help from herrelatives were unsuccessful due to those relatives' own financial difficulties.[FN3] In view of the foregoing, therecord lacks a basis to substantiate a finding that defendant willfully refused to make the requiredpayments. Moreover, the hearing testimony establishes that defendant made sufficient bona fideefforts to acquire the fiscal resources to pay the costs associated with SCRAM monitoring andthat he could not do so as a result of his indigence, which resulted, at least in part, from theserious injuries that he sustained in August 2013. In our view, County Court was thereforerequired to "consider alternate measures of punishment other than imprisonment" and erred infailing to do so (Bearden v Georgia, 461 US at 672; see People v Amorosi, 96NY2d at 184). Accordingly, we reverse the judgment revoking defendant's probation andimposing a sentence of imprisonment.
Egan Jr., J.P., Lynch, Clark and Devine, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Sullivan County for further proceedingsnot inconsistent with this Court's decision.
Footnote 1:In our previous decision, we alsoheld that County Court erred by imposing at sentencing certain conditions relative to defendant'spostrelease supervision (143 AD3d at 1056). On appeal to the Court of Appeals, the People didnot challenge that holding (32 NY3d at 628 n 2).
Footnote 2:We find it significant that, whendefendant first met with his RMOMS case manager in June 2013, she failed to mention todefendant that he could apply for a financial waiver, even after defendant's mother inquiredwhether Medicaid could be used to cover the costs of SCRAM monitoring.
Footnote 3:We note that relatives, includingdefendant's mother, have no obligation to support defendant, who is an adult. These requestsmade to relatives are relevant, however, to the extent that they pertain to good faith efforts toacquire resources to make the required payments.