People v. QuinonesPeople v. Quinones
OPINION OF THE COURT
Thе primary issue in this appeal is whether, consistent with Penal Law § 60.35 (6), a sentencing court may simultaneously impose a sentence of restitution to the crime victim, along with
Defendant was convicted after a jury trial of four counts of robbery in the first degree and two counts of robbery in the second degree. These charges arose out of two incidents, the first of which involved the robbery of a taxicab driver. Defendant along with three young women hired a cab to take them to a deserted location. Brandishing knives, they ordered the driver to give them mоney. The driver complied, giving defendant and his companions $100 in cash, and then exited the cab. Dеfendant and the others drove away with the cab and its contents. In the second incident that same day, defendant and a young woman held their victim at knifepoint and demanded money. He had only 25 сents and a stick of gum which defendant and his cohort took.
The robberies were charged in seрarate indictments but these were joined for trial. Defendant’s accomplices acсepted guilty pleas and agreed to testify against him at trial. After the jury returned guilty verdicts on all the robbery counts, County Court imposed a prison term for each conviction, and ordered defendant to pay the cab driver $100 in restitution (see, Penal Law § 60.27). The court also imposed the mandatory surcharge and crime victim assistance fee required under Penal Law § 60.35 (6) for both robberies. The Appellate Division affirmed in all respects, and a Judge of this Court granted defendant leave to appeal.
This case raises an issue that has divided the Appellate Division Departments: whether a sentencing court may, under Penal Law § 60.35 (6), order a defendant who has not yet made restitution to pay both restitution and a mandatory surcharge/ crime victim assistance fee. Pеnal Law § 60.35 (6) provides that “where a person has made restitution or reparation pursuant to section 60.27 of this chapter, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee.”
The First and Third Departments prohibit a sentencing court from imposing the mandatory surcharge/crime victim assistance fee where restitution has been ordered
(People v Espola,
We hold that the plain language of the statute permits the sentencing court to order both restitution and the mandatory surcharge/crime victim assistance fee where the defendant has not yet made restitution. The Legislature could have prohibited the imposition of both outright, but insteаd employed the past tense with regard to the payment of restitution and reparations under Penal Law § 60.27, thus indicating that until restitution has been paid a defendant can be ordered to pay the mandatory surcharge/crime victim assistance fee. As the Practice Commentary to Penal Law § 60.35 (6) notes, the effect is to prefer and encourage payment of restitution to thе crime victim (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 60.35, at 294).
The mandаtory surcharge/crime victim assistance fee is paid to the State to shift costs of providing sеrvices to victims of crime from “law abiding taxpayers and toward those who commit crimes” (Mem оf State Executive Dept, 1983 McKinney’s Session Laws of NY, at 2356;
see,
Penal Law § 60.35 [3]; State Finance Law § 97-bb;
People v Barnes,
Furthermore, once restitution has been made, the mandatory surcharge and crime victim assistance fee “shall not be required” (Penal Law § 60.35 [6]). Indeed, Penal Law § 60.35 (4) includes a mechanism whereby a person can seek a refund of those payments which are ultimately “not requirеd” (see,
People v Cabrera, supra,
Defendant’s additional claims are without merit.
Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur.
Order affirmed.