                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   106480
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRIAN HAKES,
                    Appellant.
________________________________


Calendar Date:   September 12, 2016

Before:   Egan Jr., J.P, Lynch, Devine, Clark and Mulvey, JJ.

                             __________


     Donna Maria Lasher, Youngsville, for appellant.

      James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Sullivan
County (McGuire, J.), rendered December 4, 2013, which revoked
defendant's probation and imposed a sentence of imprisonment.

      In April 2013, defendant was convicted of driving while
intoxicated, a class E felony, and sentenced to five years of
probation, the first six months of which defendant was required
to serve in county jail. The sentence of probation included a
special condition requiring defendant to wear a Secure Continuous
Remote Alcohol Monitoring (hereinafter SCRAM) bracelet and to pay
the Rocky Mountain Offender Management System (hereinafter RMOMS)
the costs and fees associated with its monitoring of that
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bracelet.1 Although defendant wore the SCRAM bracelet for
several months and two payments were made to RMOMS, in September
2013 the SCRAM bracelet was removed because defendant informed
RMOMS that he was unable to make the payments required for
continued use of the bracelet. Thereafter, a violation of
probation petition was filed against defendant, alleging that
defendant had failed to make the necessary payments to RMOMS for
continued use of the SCRAM bracelet and that he was over $700 in
arrears. Following an evidentiary hearing, County Court found
that defendant violated the cited terms of his probation based
primarily upon his failure to make adequate efforts to pay the
costs required for his continued use of the SCRAM bracelet and
revoked his probation. The court sentenced defendant to a prison
term of 1 to 3 years and imposed certain conditions relative to
defendant's postrelease supervision, including that he maintain
employment, satisfy certain financial obligations and abide by
drug and alcohol conditions. Defendant now appeals, contending
that his violation of probation and sentence of imprisonment were
improperly based upon his indigence and that he had made
sufficient good faith efforts to pay the costs required of him.

      We reverse. Initially there is no dispute that, at the
time of sentencing, defendant did not protest the condition of
his sentence that required the SCRAM bracelet, and, at the time
that defendant received the SCRAM bracelet, he acknowledged that
he was financially responsible for the cost of the device. He
raised no objection to that obligation, ceased making payments,


    1
        A SCRAM bracelet is a transdermal alcohol detection
device that continuously measures the alcoholic content of
perspiration. The device is "an ankle bracelet that gathers
information and transfers that information to a computer for
purposes of analysis. Essentially the role of a SCRAM device is
to provide the equivalence of ongoing breathalyzers. The
fundamental difference between a breathalyzer and a SCRAM
[device] is that a breathalyzer analyzes the gas within an
individual's lungs, while the SCRAM [device] analyzes the gas [or
vapors] leaving an individual's skin" (Matter of Angel P., 39
Misc 3d 264, 265 n 1 [Fam Ct, Clinton County 2013]; see Matter of
Ashley E. [Mark E.], 68 AD3d 1185, 1187 [2009]).
                                -3-                106480

never applied for resentencing (see CPL 420.10 [5] [d]), or
requested a modification of the conditions of his probation (see
CPL 410.20 [1]). Although not raised by defendant in his brief,
we are compelled to find "that County Court did not have
statutory authority for requiring [defendant] to pay for the cost
of the electronic monitoring program" (People v Bennor, 228 AD2d
745, 745 [1996]). While County Court can require a defendant to
submit to the use of an electronic monitoring device if it
determines that such a condition would advance public safety (see
Penal Law § 65.10 [4]), it could not require a defendant to pay
the costs associated with such monitoring since such costs do not
fall within the category of restitution, but are more in the
nature of a law enforcement expense (see People v Bennor, 228
AD2d at 745).2

      Although we are reversing the judgment rendered December 4,
2013, we note that, because only the Board of Parole is
authorized to impose the conditions of postrelease supervision
(see Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i;
People v Monk, 21 NY3d 27, 32 [2013]; People v Curry, 123 AD3d
1381, 1383-1384 [2014], lv denied 25 NY3d 950 [2015]), County
Court also erred to the extent that it imposed certain conditions
of defendant's postrelease supervision at sentencing (see People
v Curry, 123 AD3d at 1383-1384).

        Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur.




    2
        We note that, at the time of defendant's sentencing in
2013, County Court was concerned about the safety of the
community if defendant was on probation and in community based
treatment, given defendant's extensive history of alcohol abuse
and multiple driving while intoxicated charges. Despite the
recommendations of the Probation Department and the People who
both sought a sentence of prison time, County Court considered an
alternative to incarceration and sentenced defendant to probation
"because he was being monitored 24/7."
                              -4-                  106480

      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Sullivan County for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
