Pursuant to CPL §420.40, Defendant Raymond Medina, appearing pro se, moves to defer the mandatory surcharge and fees imposed by the Court at the tine of sentencing in the above indictments. Defendant seeks relief upon grounds he has insufficient funds, income and property at this time to pay the surcharge. Defendant asks the Court to determine his eligibility to defer the mandatory surcharge and fees, which are in the amount of $645.00.^[FN1]

Background

According to the District Attorney, on October 31, 2008, Defendant pled guilty under Indictment No. 1687-2008 to Criminal Possession of a Controlled Substance in the Third Degree (Penal Law §220.16 [1]). On June 1, 2011, Defendant also pled guilty under Indictment No. 4388-2009 to Attempted Assault in the First Degree (Penal Law §§110 and 120.10[1]).^[FN2] On January 29, 2010, Defendant was sentenced to a term of two years on the first indictment and, on January 16, 2011, the Court sentenced Defendant to a term of seven years with five years post-[*2]release supervision.

Defendant's Position

Defendant asks the Court to consider the following circumstances in determining whether relief is available concerning the mandatory surcharge and fees. First, Defendant says that due to incarceration, he has no way to pay a mandatory surcharge because as an inmate he receives no money other than prison wages of $10.00 monthly. Further, the mandatory surcharge works an unreasonable hardship upon him, above that imposed upon inmates because any money remaining after paying the surcharge and fees is insufficient to meet his basic hygienic needs. Most significantly, Defendant feels the surcharge is being applied differently to him than to other inmates under similar circumstances (see generally, People v. Nolley, 219 AD2d 882 [4th Dept. 1995]).

Prosecutor's Position

The District Attorney opposes the application because Defendant is not entitled to relief because he fails to present credible and verifiable evidence establishing the mandatory surcharge should be deferred due to Defendant's indigence and/or upon his unreasonable hardship (see, CPL 420.40[2]). Further, Defendant's request for relief is too vague to satisfy the requirements of CPL §420.40 (see generally, People v. Abdus-Samad, 274 AD2d 666 [3rd Dept. 2000]).

Legal Discussion

Article 60 of the Penal Law authorizes, among other things, sentences which include a mandatory surcharge and a crime victim assistance fee in addition to any sentence required or permitted by law (see, Penal Law §60.35[1][a][I]). Article 420 of the Criminal Procedure Law provides the Court with various options concerning payment and collection of the mandatory surcharge (see generally, CPL §420.10[1]; CPL §420.35 and CPL §420.40).

Defendant correctly seeks deferral of the mandatory surcharge independent of appeal of his sentence (see generally, People v. Brown, 69 AD3d 466 [1st Dept.2010]). In this regard, payment deferment for either the mandatory surcharge or the crime victims assistance fee is not given simply for the asking (see, People v. Sabino, 2010 NY Slip Op 31291U [Sup Ct. Kings 2010]).

To qualify for deferment, Defendant must provide credible and verifiable evidence that shows that, because of indigence, payment of the surcharge would work an unreasonable hardship upon him or his family (see generally, People v. Pierce, 16 Misc 3d 1126A[Sup. Ct. New York 2007]). At least one trial court has found that while no explicit statutory authority exists for deferring the mandatory surcharge for a defendant imprisoned more than 60 days, trial courts have implicit authority under CPL §420.40 to defer payment in accordance with the standards set forth in CPL §420.40(2) (see generally, People v Taylor, 2008 NY Slip Op 30900U [Sup Ct. Kings 2008]).

Turning to case law under CPL §420.40(2), the Court finds that an inmate must provide credible and verifiable evidence showing that collection of the surcharge and/or fees would work an unreasonable hardship upon him over and above the ordinary hardship suffered by other indigent inmates (see, People v. Kistner, 291 AD2d 856 [4th Dept. 2002]). Surcharge deferment is not appropriate upon this record because there is no credible and verifiable information establishing that the surcharge would cause any hardship upon Defendant over and above the ordinary hardship suffered by other indigent inmates (see generally, People v. Abdus-Samad, 274 AD2d 666 [3rd Dept. 2000]). Moreover, Defendant fails to show. or even allege, that he is responsible for supporting an immediate family member who he claims has been adversely affected by the deductions from his prison earnings (see, People v Taylor, supra.). Even allowing Defendant the benefit of treating his submission in the best possible light in view of the fact that he is pro se and not a person familiar with legal procedure, the Court cannot find that he alleges any adequate facts or alleges any theory upon which it is possible for the Court to suspend payment at this time. [*3]

Upon this record,^[FN3] the Court finds that Defendant sets forth no grounds upon which to set aside or defer the surcharge and fee. Accordingly, Defendant's motion is denied, with leave to renew, upon submission of appropriate evidence in accordance with the requirements discussed above.^[FN4]

The foregoing constitutes the Decision and Order of the Court.

Dated: Bronx, New York

May 4, 2012___________________________

DOMINIC R. MASSARO, JSC