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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 2
The People &c.,
            Respondent,
        v.
Anthony Jones,
            Appellant.




          Kristina Schwarz, for appellant.
          Sheila L. Bautista, for respondent.




RIVERA, J.:
          Defendant claims that his due process rights were
violated when the sentencing court refused to consider his
request to defer payment of a mandatary surcharge imposed upon
him pursuant to Penal Law § 60.35.    We conclude that the
applicable statutory scheme provides no such discretion to the

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                                - 2 -                             No. 2

sentencing court, and therefore we affirm the Appellate Division.
                                 I.
            Defendant pled guilty to criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1])
and criminal sale of a controlled substance in the third degree
(Penal Law § 220.39 [1]).   At sentencing, Supreme Court imposed
two concurrent six-month terms of imprisonment, and a $300
mandatory surcharge pursuant to Penal Law § 60.35.     The court
rejected defendant's request to defer the surcharge, concluding
that it lacked authority to do so.      The Appellate Division
affirmed and, as relevant here, held that because defendant was
sentenced to a term of incarceration longer than 60 days he could
seek relief from the surcharge only in postsentencing
proceedings, by way of a motion to resentence, pursuant to CPL
420.10 (5) (115 AD3d 490, 490-491 [1st Dept 2013]).     A Judge of
this Court granted defendant leave to appeal (23 NY3d 1038
[2014]).
            Defendant claims that CPL 420.40 establishes the
procedure for deferral of mandatory surcharges, and because that
section does not limit when a person may seek such relief, the
sentencing court had authority to consider his request for a
deferral.   The People counter that a request to defer may only be
considered after sentencing by way of a motion to resentence, and
in defendant's case only at the end of his incarceration.        We
agree that a court lacks authority at sentencing to consider a


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request to defer the mandatory surcharge, but find no statutory
support for the People's position that defendant may only seek
such relief upon release from confinement.
          As discussed more fully below, the relevant statutes
prohibit judicial waiver of a mandatory surcharge, require
collection of any unpaid amounts from an inmate's funds as of the
moment of confinement and throughout the period of incarceration,
and provide for deferral under limited circumstances, namely an
inability to pay that is not solely due to incarceration.    A
person subject to a mandatory surcharge may seek to defer payment
at any time after sentencing, by way of a motion to resentence
under CPL 420.10 (5).    In addition, persons sentenced to
confinement of 60 days or less, may avoid filing such motion, and
instead present information in support of a request to defer on
the appearance date set forth on a summons issued pursuant to
Penal Law § 60.35 (8).   Under either procedural mechanism, if the
court grants a deferral it must place its reasons on the record
(CPL 420.40 [4]; 420.10 [5] [d]), and issue a written order,
which shall be treated as a civil judgment in accordance with
CPLR 5016 (CPL 420.40 [5]; 420.10 [5] [d]).   This statutory
scheme is structured to further the legislative goals of raising
revenue and ensuring payment of the mandatory surcharge by
persons convicted of crimes.




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                                II.
          Mandatory surcharges are referenced throughout the
Penal Law and the Criminal Procedure Law, which require close and
careful reading to harmonize the various interconnected and
cross-referenced provisions.   Indeed, the statutes governing
mandatory surcharges have been characterized as "poorly drafted
and difficult to follow" (Preiser, Practice Commentary,
McKinney's Cons Laws of NY, Book 11A, CPL 420.40).   We now turn
to these statutes, cognizant that "our primary consideration is
to ascertain and give effect to the intention of the Legislature"
(People v Ballman, 15 NY3d 68, 72 [2010], quoting Matter of
DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal
quotation marks and citation omitted]), and that "when the
statutory language is clear and unambiguous, it should be
construed so as to give effect to the plain meaning of the words"
used (People v Williams, 19 NY3d 100, 103 [2012]).
          Penal Law § 60.35 (1) states, with exceptions not
relevant to this appeal, that for anyone convicted of a felony,
misdemeanor or violation "there shall be levied at sentencing a
mandatory surcharge . . . in addition to any sentence required or
permitted by law, in accordance with the . . . schedule" set
forth in this provision.   The statute further provides that
          "when a person who is convicted of a crime or
          violation and sentenced to a term of
          imprisonment has failed to pay the mandatory
          surcharge, . . . the clerk of the court
          shall notify the superintendent or the
          municipal official of the facility where the
          person is confined. The superintendent or
          the municipal official shall cause any amount

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          owing to be collected from such person during
          [the person's] term of imprisonment from
          moneys to the credit of an inmates' fund or
          such moneys as may be earned by a person in a
          work release program [as provided for under
          the correction law]"
(see Penal Law § 60.35 [5]).
          In the case of a person sentenced to confinement for 60
days or less,
          "at the time that the mandatory surcharge, .
          . . is imposed a town or village court may,
          and all other courts shall, issue and cause
          to be served upon the person required to pay
          the mandatory surcharge, a summons directing
          that such person appear before the court
          regarding the payment of the mandatory
          surcharge, . . . if after sixty days from the
          date it was imposed it remains unpaid"
(Penal Law § 60.35 [8]).   The summons must set an appearance date
for the first day court is in session after the sixtieth day.
The statute specifically prohibits issuance of such summons "to a
person who is sentenced to a term of confinement in excess of
sixty days," and instead provides that "[t]he mandatory
surcharges for those persons shall be governed by the provisions
of section 60.30" of the Penal Law.    That section states,
          "This article does not deprive the court of
          any authority conferred by law to decree a
          forfeiture of property, suspend or cancel a
          license, remove a person from office, or
          impose any other civil penalty and any
          appropriate order exercising such authority
          may be included as part of the judgment of
          conviction"
(Penal Law § 60.30).
          Initially, courts had authority to waive the


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surcharges, but in 1992, in response to apparent judicial laxity
in granting such waivers, and in order "to limit what ha[d]
become perceived as the routine remission and waiver in some
cases of surcharges . . . intended to be mandatory," (Approval
Memorandum, Bill Jacket, L 1992, ch 794 at 14 [NY Senate Bill
9031]), the legislature amended CPL 420.35 and included language
that courts be "mindful" that the surcharge was mandatory, and of
"the important criminal justice and victim services" sustained by
the surcharge and other fees (id. at 8 [Recommendation of Senate
Committee on Rules]).    Thereafter, with the enactment of the
Sentencing Reform Act of 1995, the legislature greatly cabined
judicial authority to waive and remit the mandatory surcharge
(see L 1995, ch 3).     As amended, CPL 420.35 (2) reads that
"[u]nder no circumstances shall the mandatory surcharge . . .      be
waived," except in cases involving a statutorily defined, albeit
discrete, category of defendants, not relevant here.1 (see CPL
420.35 [2], as amended by L 1995, ch 3, eff. July 1, 1995).      In
the same vein, the relevant language in 420.30 (3) provides that


     1
      The court "shall" waive the mandatory surcharge when: "(i)
the defendant is convicted of loitering for the purpose of
engaging in prostitution [Penal Law § 240.37] . . .; (ii) the
defendant is convicted of prostitution [Penal Law § 230.00];
(iii) the defendant is convicted of a violation . . . in lieu of
a plea to or conviction for loitering for the purpose of engaging
in prostitution [Penal Law § 240.37] . . . or prostitution [Penal
Law § 230.00]; or (iv) the court finds that a defendant is a
victim of sex trafficking under [Penal Law § 230.34] or a victim
of trafficking in persons under the trafficking victims
protection act (United States Code, Title 22, Chapter 78)" (CPL
420.35 [2]).

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"[i]n no event shall a mandatory surcharge, . . . be remitted."
Thus, the Legislature could not be clearer in communicating its
intent to restrain the judiciary from discharging a person's
obligation to pay the statutorily imposed amount.
          As part of the same 1995 legislative reform package,
the legislature enacted CPL 420.40, titled "deferral of a
mandatory surcharge; financial hardship hearings," which governs,
inter alia, deferral of mandatory surcharges imposed pursuant to
Penal Law § 60.35 (1) (see CPL 420.40, as amended by L 1995, ch
3, eff. July 1, 1995).   This section in no way signaled a
legislative retreat from its commitment to securing payment of
these surcharges and its interest in directing the exercise of
judicial authority.   Quite to the contrary.   For example, CPL
420.40 includes explicit language similar to that previously
contained in CPL 420.35 and 420.30, that when assessing a request
to defer payment "the superior court shall be mindful of the
mandatory nature of the surcharge . . . and the important
criminal justice and victim services sustained by such fees" (CPL
420.40 [3]; see L 1995 ch 3, §§ 67-70).
          By its terms, CPL 420.40 "govern[s] the deferral of the
obligation to pay all or part of a mandatory surcharge, . . .
imposed pursuant to subdivision one of section 60.35 . . .   and
financial hardship hearings relating to mandatory surcharges"
(CPL 420.40 [1]).   According to the statute's procedural
requirements, in those cases "[w]here a court determines that it


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will defer part or all of a mandatory surcharge," the court's
"statement of such finding and of the facts upon which it is
based shall be made part of the record" (CPL 420.40 [4]).
Furthermore, a court may only defer the mandatory surcharge by
written order, and "[s]uch order shall not excuse the person from
the obligation to pay the surcharge" (CPL 420.40 [5]).    The order
shall be filed and entered as a civil judgment, in accordance
with CPLR 5016, and subject to collection "in the same manner as
a civil judgment" (id.).
          CPL 420.40 makes special provision for a person issued
a summons under Penal Law § 65.30 (8).   In those cases, CPL
420.40 (2) requires that on the appearance date set forth in the
summons, such person
          "shall have an opportunity to present on the
          record credible and verifiable information
          establishing that the mandatory surcharge . .
          . should be deferred, in whole or in part,
          because, due to the indigence of such person
          the payment of [the] surcharge . . . would
          work an unreasonable hardship on the person
          or [the person's] immediate family."
          The procedural mechanism of CPL 420.40 does not
otherwise provide for a time frame in which a person may seek to
defer the mandatory surcharge.    However, CPL 420.35 (1) provides
that "[t]he provisions of section 420.10 . . . governing the
collection of fines . . . shall be applicable to a mandatory
surcharge . . . imposed pursuant to subdivision one of section
60.35 of the penal law."   Thus, a person subject to a mandatory
surcharge, which includes those persons, like defendant,

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sentenced to confinement in excess of 60 days and who is unable
to pay the surcharge, may apply for resentencing, pursuant to
420.10 (5), at any time after the initial sentence has been
imposed.   Under that provision, "[i]n any case where the
defendant is unable to pay . . . [the person] may at any time
apply to the court for resentence.     In such case, if the court is
satisfied that the defendant is unable to pay" the court may
"[a]djust the terms of payment" (CPL 420.10 [5] [a]).    The power
to change the terms necessarily encompasses the power to defer,
that is to delay, payment.
           Here too, the legislature has been careful to limit
judicial discretion to defer payment for those persons who are
incarcerated.   The resentencing provision states that a court
           "shall not determine that the defendant is
           unable to pay . . . solely because of such
           defendant's incarceration but shall consider
           all the defendant's sources of income
           including, but not limited to, moneys in the
           possession of an inmate at the time of []
           admission into such facility, funds earned by
           [an inmate] in a work release program . . .,
           funds earned by [an inmate as compensation
           for work performed while incarcerated] and
           any other funds received by [an inmate] or on
           [the inmate's] behalf and deposited with
           [personnel] of the facility where the person
           is confined"
(CPL 420.10 [5]).
           Thus, CPL 420.40 and 420.10 together permit any person
with an unpaid mandatory surcharge to request a deferral by
moving at any time for resentencing pursuant to CPL 420.10 (5),
even during a period of incarceration.    If the movant satisfies

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the burden of establishing an inability to pay, and a court
determines it is appropriate to defer part or all of the
mandatory surcharge, the court must place on the record its
findings and facts in support thereof and issue a written order
in accordance with CPL 420.40 (4) and (5).   An individual subject
to a summons under Penal Law § 60.35 (8) may similarly request a
deferral by motion to resentence or, alternatively, may seek this
relief at the scheduled summons appearance date, in accordance
with the specific procedure set forth in CPL 420.40 (2).     If the
court decides to grant a deferral, that decision is also subject
to the requirements of CPL 420.40 (4) and (5).
          This construction of the statutory framework is
supported by the various amendments intended to limit judicial
discretion, and to increase the collection of surcharges from
persons during periods of confinement and upon release from
incarceration.   As this Court has previously stated, the fees
imposed under Penal Law § 60.35 are related to the "State's
legitimate interest in raising revenues" (People v Barnes, 62
NY2d 702, 703 [1984]), and the mandatory surcharge "is paid to
the State to shift costs of providing services to victims of
crime from 'law abiding taxpayers and toward those who commit
crimes' " (People v Quinones, 95 NY2d 349, 352 [2000], quoting
Mem of State Executive Dept, 1983 McKinney's Session Laws of NY,
at 2356, and citing Penal Law § 60.35 [3]; State Finance Law §
97-bb; Barnes, 62 NY2d 702).   That goal is facilitated by


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ensuring that collection will be attempted even during periods of
confinement.
                               III.
          The People contend that CPL 420.40 is limited to
persons sentenced to confinement for 60 days or less, thus
excluding defendant, who was sentenced to an incarceration period
in excess of 60 days.   We reject this interpretation because it
is contrary to the express language of CPL 420.40 (1), which
states, without limitation, that CPL 420.40 governs deferrals
imposed pursuant to Penal Law § 60.35 (1).   Nevertheless, the
People point to CPL 420.40 (2) as the proper basis to discern the
coverage of the statute.   That paragraph applies to persons
subject to a summons issued pursuant to Penal Law § 60.35 (8),
meaning any person with an unpaid mandatory surcharge who was
sentenced to incarceration for 60 days or less and issued a
summons to appear on the first court date after the sixtieth day.
Rather than serving to establish, a fortiori, that the entirety
of the procedures set forth in CPL 420.40 are unavailable to
defendant and those similarly situated, CPL 420.40 (2) merely
affords persons at liberty the opportunity upon their appearance
date to request a deferral of the mandatory surcharge, thus
avoiding further penalties, possible incarceration for
nonpayment, and civil liability (see CPL 420.35 [1] [permitting
incarceration for failure to pay the mandatory surcharge]; CPL
430.40 [5] [providing that the unpaid balance of the mandatory


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surcharge, "may be collected in the same manner as a civil
judgment"]).   Nor is it proper to treat 420.40 (1) as a single,
aberrational reference given that CPL 420.35, titled "Mandatory
surcharge and crime victim assistance fee; applicability to
sentences mandating payment of fines," states that the provisions
of CPL 420.40 "shall be applicable to a mandatory surcharge."
These provisions clearly demonstrate the legislative intent to
make the procedure set forth in CPL 420.40 applicable to all
deferral requests.
          Apart from these text-based reasons for rejecting the
People's reading of CPL 420.40, the People's interpretation of
the statute would contravene the legislative goals by relieving a
court in certain cases from compliance with the procedures and
guidance contained in CPL 420.40, based on no more than the
incarceratory period of the sentence imposed.   It would make
little sense for the legislature to enact a statute that exhorts
judicial restraint (CPL 420.40 [3]), imposes procedural
requirements that mandate creation of a record and issuance of a
written order of deferral (CPL 420.40 [4], [5]), further provides
that deferral does not excuse the person from the obligation to
pay the surcharge, and ensures payment by directing the filing
and entry of a civil judgment, but then decline to apply these
requirements to all deferral requests.   There is no logical basis
for this anomalous result when the overall statutory scheme is
structured to secure payments, regardless of the period of time a


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person is confined.
          The People also argue, again relying on CPL 420.40 (2)
and its application to persons who appear after the end of their
confinement, that a court is without discretion to consider a
request to defer until the end of a defendant's incarceration.
This argument fares no better textually.   Neither CPL 420.40 nor
420.10 contain such limitation, and 420.10 (5) states explicitly
that persons may apply for resentencing "at any time."    Moreover,
the language of CPL 420.10 (5) (d) demonstrates that the
legislature anticipated that a defendant would make an
application during confinement and chose to set forth the
appropriate standard in such cases.    Thus, under CPL 420.10 (5),
"a court shall not determine" a person's inability to pay based
solely on the fact of incarceration (CPL 420.10 [5]).
          While we are persuaded that the statutes do not
foreclose deferral prior to release from incarceration,
defendant's argument that the sentencing court had authority
pursuant to Penal Law § 60.30 to defer the mandatory surcharge is
unpersuasive.   That section, titled "Civil Penalties," makes no
reference to deferral of mandatory surcharges, and instead
provides, in relevant part, that the court retains "any authority
conferred by law to . . . impose any other civil penalty" and
that such order "may be included as part of the judgment of
conviction" (Penal Law § 60.30).   The import of this language is
to permit a court to exercise its preexisting authority to impose


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a civil penalty otherwise permitted under the law.    Of course,
the mandatory surcharge is already authorized under Penal Law §
60.35, and a judicial deferral of that surcharge is not the
equivalent of imposing another civil penalty.
             In further support of his argument that he may seek a
deferral at the time of sentencing, defendant contends that Penal
Law § 60.35 provides for a 60-day "grace period," during which no
payment is required, for persons issued a subpoena under section
60.35 (8), and therefore those sentenced to confinement in excess
of 60 days should similarly be able to defer payment into the
future.   However, as is clear from our discussion, such
interpretation does not follow from the text or the legislative
history of the mandatory surcharge statutory scheme.    Instead,
defendant's interpretation would allow those persons incarcerated
for 60 days or less to avoid payment during confinement,
undermining the legislative goal to collect mandatory surcharges
during the term of incarceration as a means to assist with the
funding of victims' services (see Quinones, 95 NY2d at 352,
quoting Mem of State Executive Dept, L 1983 Ch 15, at 2356; see
State Finance Law § 97-bb [Criminal justice improvement
account]).
             The different treatment of these two groups furthers
the ends of collection by ensuring that those persons released
within 60 days will return to court under the mandates of the
subpoena issued pursuant to Penal Law § 65.30 (8).    Defendant's


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interpretation, in contrast, does nothing to further the
collection of the surcharge, and has the potential to defer
payment for years in cases of persons sentenced to lengthy
periods of incarceration, depriving the State of necessary funds
for victims' services.
          While the legislature has provided for deferral of the
mandatory surcharge, the statutory scheme contemplates that
granting such request is neither routine nor common, certainly
not for persons in confinement.   As we read the statutes, they
are intended to ensure what defendant now seeks to avoid, namely
the payment of the surcharge during a defendant's confinement,
except in the most unusual and exceptional of circumstances where
a defendant's sources of income support a judicial finding of
inability to pay any portion of the surcharge.
          Defendant urges us to consider that the People's
interpretation is bad policy because reliance on CPL 420.10 would
be a waste of judicial resources, as it requires defendants who
could have sought deferrals at sentencing to proceed through an
additional proceeding, likely with assigned counsel.   However,
this is also the case for defendants issued a summons pursuant to
Penal Law § 60.35 and subject to the procedure set forth in CPL
420.40 (2).   They too must appear at a separate hearing, and may
very well be entitled to assigned counsel to avoid incarceration
for failure to pay (see People v Smith, 18 NY3d 588, 592 [2012],
citing People v Medina, 44 NY2d 199 [1978] and People v Koch, 299


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NY 378, 381 [1949]; see CPL 420.35 [1] [permitting incarceration
for failure to pay the mandatory surcharge]).         Furthermore, those
persons who do not have a credible basis for deferral while
incarcerated may have a credible argument for deferral upon
release from prison, when they and perhaps others are dependent
on such person's financial resources.
            Notably, there is no assurance that even under
defendant's interpretation judicial resources would not also be
expended in cases where a defendant with an order of deferral is
subsequently financially able to pay, and an appropriate official
seeks access to newly acquired funds to satisfy the defendant's
surcharge obligations.   These policy determinations are beyond
our authority and instead best left for the legislature (see
Manouel v Bd. of Assessors, 25 NY3d 46, 54 [2015] [rejecting
argument because it would "risk judicial encroachment on the
legislature's lawmaking role," in light of the statutory text and
its legislative history]).
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Rivera. Judges Pigott, Abdus-
Salaam, Stein and Fahey concur. Chief Judge DiFiore and Judge
Garcia took no part.

Decided February 18, 2016




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