| People v Parkison |
| 2017 NY Slip Op 04615 [151 AD3d 1647] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RyanParkison, Appellant. |
Robert Tucker, Palmyra, for defendant-appellant.
Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered October8, 2015. The judgment convicted defendant, upon his plea of guilty, of burglary in the thirddegree and grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of burglary in the third degree (Penal Law § 140.20) and grand larceny in the thirddegree (§ 155.35 [1]). At sentencing, County Court ordered, inter alia, thatdefendant pay $9,000 in restitution, a $300 mandatory surcharge and a $25 crime victimassistance fee (CVAF). Defendant contends that, because the court told him prior to his guiltyplea that he would have to pay $9,000 in restitution but did not inform him of the mandatorysurcharge and CVAF until after the plea, the court had the discretionary authority to waive theimposition of the mandatory surcharge and CVAF and abused its discretion in imposing them.We reject that contention.
Notwithstanding certain exceptions that are inapplicable here, Penal Law§ 60.35 (1) (a) provides that, "whenever proceedings in . . . a court ofthis state result in a conviction for a felony . . . , there shall be levied atsentencing a mandatory surcharge . . . and a [CVAF] in addition to any sentencerequired or permitted by law" (emphasis added). The statute further provides that "a personconvicted of a felony shall pay a mandatory surcharge of [$300] and a [CVAF] of [$25]"(§ 60.35 [1] [a] [i]). Here, defendant was convicted of two felonies. Given the plainlanguage of the statute, the sentencing court did not have the discretion to waive the mandatorysurcharge and CVAF, nor does this Court. Defendant's reliance on Penal Law§ 60.35 (6) is misplaced. That statute provides that, "where a person has maderestitution . . . pursuant to [Penal Law § ] 60.27 . . . , suchperson shall not be required to pay a mandatory surcharge or a [CVAF]," and there is noindication in the record that defendant has made restitution.
We reject defendant's contention that, under People v Quinones (95 NY2d 349[2000]), the mandatory surcharge and CVAF may be waived where restitution is ordered but hasnot yet been paid. In Quinones, the Court of Appeals addressed a split in the appellatedivisions, two of which prohibited courts from simultaneously imposing both restitution and themandatory surcharge/CVAF, and two of which allowed that practice. The Court determined thatthe statutory language of Penal Law §§ 60.27 and 60.35 (6) supported thelatter position (see Quinones, 95 NY2d at 351-352). Thus, contrary to defendant'scontention, the language in Quinones that, "until a defendant has in fact made restitution,a sentencing court has the power to impose an order to pay both restitution and themandatory surcharge/[CVAF]" (id. at 352 [emphasis added]) did not implicitly grantsentencing courts discretionary authority to waive the mandatory surcharge/CVAF whenrestitution is ordered but remains unpaid. Indeed, CPL 420.35 (2) provides that "[u]nder nocircumstances shall the mandatory surcharge . . . or the [CVAF] be waived," with anexception that is not applicable here. Moreover, although a defendant may seek "deferral of theobligation to pay all or part of a mandatory surcharge" (CPL 420.40 [1]) when, "due to theindigence of [the defendant,] the payment of said surcharge . . . would work anunreasonable hardship on the [defendant] or his or her immediate family" (CPL 420.40 [2]), thereis no evidence in the record that defendant has sought such relief. Nor did the court have thediscretion at the time of sentencing to entertain such an application, which a defendant may bring"at any time after sentencing, by way of a motion for resentence under CPL 420.10 (5)" (People v Jones, 26 NY3d 730,732-733 [2016]). Present—Whalen, P.J., Smith, Centra, Peradotto and Scudder, JJ.