OPINION OF THE COURT
The estate of the defendant moves to “vacate” the fine and the judgment entered thereon on the ground that the defendant has passed away without paying the fine and thus the fine abated.
Background
On June 22, 1994 after a jury trial, the defendant (a doctor) was convicted of nine counts of criminal sale of a prescription for a controlled substance (Penal Law § 220.65). On August 22, 1994, the court sentenced the dеfendant to five years’ probation and to pay a fine of $5,000 on each of eight counts. The
On October 26, 1996, the judgment was affirmed (
On May 24, 1999, the defendant passed away.
At no time between October 26, 1996 and the defendant’s death did the People attempt to execute the judgment against the defendant’s property.
The court is informed that the estate has more than sufficient funds with which to pay the fine.
The estate of the defendant cites CPL 440.10 and 440.20 as a basis of this motion.
CPL 440.10
CPL 440.10 (2) (d) states: “Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when * * * (d) The ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction.”
If the claim relates solely to the sentence, the court must dismiss the motion made under CPL 440.10.
The motion to vacate the fine grounded in CPL 440.10 is denied.
CPL 440.20
CPL 440.20 provides for vacating all or part of a sentence where the original sentence is illegal. If the sentence is legal, the court is not authorized to change the sentence (People v Corso,
The estate does not claim that the sentence is illegal. The court is without jurisdiction to entertain the estate’s claim under CPL 440.20.
The motion to vacate the sentence is denied.
Civil Judgment
Generally, the Civil Practice Law and Rules is inapplicable to criminal matters (People v Knobel,
The People claim that CPL 420.10 incorporates civil law into the area of collection of a fine.
CPL 420.10 (6) as is relevant reads:
“6. Civil proceeding for collection, (a) A fine, restitution or reparation imposed or directed by the court shall be imposed or directed by a written order of the court containing the amount thereof required to be paid by the defendаnt. The court’s order also shall direct the district attorney to file a certified copy of such order with the county clerk of the county in which the court is situate except where the court which issues such order is the supreme court in which case the order itself shall be filed by the clerk of the court acting in his or her capacity as the county clerk of the county in which the court is situate. Such order shall be entered by the county clerk in the same manner as a judgment in a civil action in accordance with subdivision (a) of rule five thousand sixteen of the civil practice law and rules. Even if the defendant was imprisoned for failure to pay such fine, restitution or reparation, or has served the period of imprisonment imposed, such order after entry thereof pursuant to this subdivision may be collected in the same manner as a judgment in a civil action by the victim, as defined in paragraph (b) of subdivision four of section 60.27 of the penal law, to whom restitution or reparation was ordered to be paid, the estate ofsuch person or the district attorney. The entered order shall be deemed to constitute a judgment-roll as defined in section five thousand seventeen of the civil practice law and rules and immediately after entry of the order, the county clerk shall docket the entered order as a money judgment pursuant to section five thousand eighteen of such law and rules. Wherever appropriate, the district attorney shall file a transcript of the docket of the judgment with the clerk of any other county of the state.” (Emphasis supplied.)
This section provides a mechanism by which a criminal fine may be collected. A criminal finе may be collected in the same manner as a civil judgment. The statutory language that it may be collected in the same manner as a civil judgment indicates that the criminal fine does not metamorphose from a criminal sentence into a civil judgment. All that the statute authorizes is that it may be collected in the same manner as a civil judgment (Owens v State,
Thе court finds that the fine in this case remains a criminal sentence and is not a civil judgment.
After reviewing the motion papers, the court by letter dated January 10, 2002 asked both parties to address the applicability of CPL 420.30 and an estate’s standing to make a motion pursuant thereto.
“Any superior court which has imposed a fine, restitution or reparation for any offense may, in its discretion, on five days notice to the district attorney of the county in which such fine, restitution or reparation was imposed and to each person otherwise required to be given notice of restitution or reparation pursuant to subdivision one of section 420.10, remit such fine, restitution or reparation or any portion thereof.” (CPL 420.30 [2] [a].)
The statute authorizes a court to remit a fine at any time, even aftеr the judgment has become final.
Generally, rights are personal to the holder and cannot be vicariously asserted (see, Rakas v Illinois,
Assuming that the court could entertain the estate’s motion, the court declines to exercise its discretion. The court does nоt believe that a person’s estate should be enriched or enhanced by monies that were earned through illegal activity. The deceased was selling prescriptions to patients. This unjustly enriched the estate.
The motion pursuant to CPL 420.30 is denied.
Claims Against an Estate
By letter dated January 10, 2002, the court asked both sides whether the proceeding commenced by the estate should be considered a proceeding to determine the vаlidity of the People’s judgment and whether the Supreme Court should remit this matter to the Surrogate’s Court.
Surrogate’s Court Procedure Act § 1809 provides that an estate may ask the court to determine the validity of a claim if
This is exactly what the estate is requesting. The estate is in effect asking the court to declarе that it need not pay the judgment which has been entered because it is no longer valid.
The court converts this proceeding into a proceeding pursuant to SCPA 1809.
Supreme Court’s Jurisdiction over the Claim
In general the Surrogate’s Court is the preferred forum to entertain claims against an estate (Pollicina v Misericordia Hosp. Med. Ctr.,
In this case, the issue involves the possible modification or vacatur of a criminal sentence. As this cburt stated earlier in this decision, the judgment on the fine remains part of a criminal sentence. It is doubtful that the Surrogate’s Court has any authority to affect a criminal sentence (see, In re Stauch’s Estate, 451 Pa 288, 294-296,
The court therefore declines to exercise its discretion pursuant to CPLR 325 (e) and transfer the case to Surrogate’s Court.
Abatement
To abate means to render a proceeding a nullity (People v Lipira,
The rule that an action abates with the death of a party is
In criminal matters, the rule is mostly applied when a defendant passes away during the pendency of an appeal from a conviction. Different jurisdictions have different rules when a defendant dies during the pendency of an appeal. In People v Robinson (298 Ill App 3d 866, 873-875,
“Research reveals that of the states that have addressed the issue, abatement ab initio continuеs to be the preferred disposition. Twenty-two states, including Illinois, as well as the District of Columbia, currently set aside the conviction as a matter of course. Only 14 states dismiss the appeal, leaving the conviction to stand. Eight states allow the appeal to continue by substitution for the defendant, but usually pursuant to court rule. It is clear from our review of the most recent cases, however, thаt the trend has been away from abating a deceased defendant’s conviction ab initio.”12
Thus, about half the states not only dismiss the appeal but also dismiss the indictment, vacating the conviction. Approximately half of the states either dismiss the appeal without vacating the conviction or permit it to continue by the appointment of a representative (see, Annotation, Abatement of State Criminal Cаse by Accused’s Death Pending Appeal of Conviction — Modern Cases, 80 ALR4th 189).
The rationale of abating the appeal and dismissing the indictment after the death of a defendant is that the defendant’s/deceased’s right to appeal has been violated (albeit not by the state) and the purpose of punishing a defendant no longer exists since the defendant is no longer available to be
The rationale of the cases that dismiss the appeal but do not vacate the judgment is that after conviction and before appeal the presumption of innocence ceases to exist, there is a presumption of regularity of the conviction, the state has an interest in maintaining a conviction presumed to be validly obtained and the victim of the crime has an interest in knowing that the perpetrator has been convicted (People v Robinson, supra, 298 Ill App 3d 866,
It is important to note that the United States Supreme Court has held that after conviction and before appeal the presumption of innocence ends (McCoy v Court of Appeals of Wis., Dist. 1,
New York also agrees that oncе the jury has rendered its verdict the presumption of innocence ceases to exist (People v David,
In this court’s opinion, the Court of Appeals has been inconsistent in its treatment of appeals where a person passes away pending appeal. In three cases the Court of Appeals dismissed the appeal and indictment or vacated a fine (People v Matteson,
When the Court of Appeals abates a case and dismisses an indictment, the reason stated is because the defendant is no longer available to obey the court’s mandate (People v Matte-son, supra,
In this case, the defendant’s right to appeal has not been violated. The defendant was accorded all his statutory and constitutional rights regarding appeal before he passed away. Therefore, this reason is not a ground for abating the fine or the filed judgment in this case. This factor distinguishes this case from Elm Realty v Office of Rent Control (supra,
In jurisdictions where the appeal and the indictment are dismissed upon death pending appeal, the courts that have addressed abatement of an uncollected fine after the judgment has become final (thus the indictmеnt is not dismissed) vacate the fine (United States v Morton, 635 F2d 723; In re Stauch, supra, 451 Pa 288,
In jurisdictions where the appeal is abated but the conviction remains, the courts are divided as to whether a fine is rendered void by the death of the defendant (compare, People v Peters,
Fines like other punishments serve a deterrent effect on others contemplating crimes (see, People v Suitte,
More significant is the fact that one of the purposes of a fine in New York is to remove the profit from criminal behavior (see, People v Gittelson,
It is a “fundamental equitable principle” that criminals do not profit from illegal activity аnd that a state has a right to insure that any monies received as a result of or because of illegal activity be forfeited (see, Simon & Schuster v Crime Victims Bd.,
In this case the defendant received $100 for each illegal sale of a prescription for a controlled substance. In the sentencing memorandum by the People, the People indicated that the defendant had written over 3,200 such prescriptiоns in a very short period of time. The sentencing court took this fact into consideration when deciding the proper amount of the fine.
The court finds that the fine in this case was based on the principle that a defendant should not profit from illegal activity. This court also holds that an estate of a person shall not profit from a decedent’s illegal activity.
The proceeding to determine the validity of a claim against the estate is adjudicated in favor of the People and the claim is declared valid. The estate is directed to pay the People the entire amount of the fine.
Mandatory Surcharge and Victim Assistance Fee
The court has found only one reported case that discusses the payment of court costs after death. In State v Keifer (24 Ohio Dec 321), the court held that while fines abate if a defendаnt dies during the pendency of an appeal, the estate is still liable for court costs. The rationale of the decision is that while a fine is punishment and the defendant can no longer be punished, court costs are not punishment and therefore do not abate.
The purpose of the mandatory surcharge/crime victim assistance fee is to “shift costs of providing services to victims of crime from ‘law abiding taxpayers and toward those who commit crimes’ ” (People v Quinones,
The court holds that the mandatory surcharge/victim assistance fees do not abate with the death of a defendant and are charges against his estate.
Notes
. The record is unclear as to what sentence, if any, the defendant received on the ninth count.
. The fact that the defendant was being prosecuted by the Federal Government provides no basis for the failure of the People to execute a valid judgment. It would also appear that the People have not attempted to make a claim against the deceased’s estate. No explanation is offered by the People, but the estate makes no claim of laches.
. In the estate’s letter dated Jаnuary 23, 2002, the estate seems to abandon these provisions.
. CPLR 101 makes the CPLR applicable to “civil” cases. Thus, by statute it is inapplicable to “criminal” cases.
. In Owens, the court was required to decide whether a judgment based on a criminal fine would receive interest from the date the judgment was entered. Tennessee had a statute similar to CPL 420.10 (6). Civil judgments in Tennessee receive interest from the date of entry. The court held that the Tennessee statute did not convert the criminal fine into a civil judgment although it authorized collection in the same manner as a civil judgment, and therefore no interest was collectable. The People in this case, interestingly, do not ask for interest as of the date of entry. CPLR 5003 provides that a money judgment bears interest from the date of entry.
. This court finds that the Carr case is not controlling. In Carr, a private citizen commenced an action, which the Court of Appeals deemed to be criminal in nature. After the private person received a judgment against the defendant, the defendant passed away. The Court held that the entry of judgment created a private right which can be collected after death. This case is different since it was not prosecuted by a private person to vindicate a private wrong.
. The defendant’s claim that failure to give notice of entry of judgment violates due process is without merit. The defendant, when he committed the crime, is deemed to have known the law. When the defendant was sentenced
. This is the рosition of the estate in their letter dated January 23, 2002.
. This court’s research of cases outside of New York reveals that this is the procedural posture which other similar cases have presented. This is the People’s position in their letter dated February 28, 2002.
. The fact that for administrative purposes parts in this court are sometimes designated as criminal or civil does not alter the jurisdiction of a justice of the Supreme Court to hear both civil and criminal matters (see, People v Zimmer,
. This court is not bound by the reversal of the decision by the Illinois highest court. The current quote has no bearing on the law. Nonetheless, this court feels (and will cite this case) that the court’s reasoning is superior to Illinois’ highest court.
. This court does not necessarily agree with the classification of the states by the court. As will be seen, this court finds New York law on the issue confizsing.
. The court will not list all jurisdictions and their reasons. The court has taken sample cases which it believes are representative of a particular viewpoint.
. This list is by no means exhaustive. A Shepardization of the Mintz case provides for many more cаses. The list does not include dismissal of appeals where the Appellate Division reversed the conviction. This court has found some 15 cases in which the Court of Appeals dismissed the appeal but took no other remedial action.
. The United States Courts of Appeals have a rule that fines that are paid before death are not refunded, but fines that were not paid before the demise of the defendant are abated (United States v Zizzo,
. The court is aware of United States v Logal (