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Support of Assembly Bill 10473-A

Defendant, through his attorney, moves this Court pursuant to CPL § 440.20, for an order setting aside and modifying the sentence previously imposed upon him on the grounds that the sentence was unauthorized; was illegally imposed; and is invalid as a matter of law.
A Nassau County Criminal attorney said that on February 8, 1995, the Grand Jury of Nassau County indicted the defendant for several crimes of: Offering a False Instrument for Filing; Attempted Grand larceny; Grand larceny; and Defrauding the Government.

On December 10, 1996, the criminal defendant was convicted, after a jury trial, on each count of the indictment. Post verdict, the defendant moved this Court, pursuant to CPL § 330.30(1), for an order setting aside the verdict. The Court granted the defendant’s motion with respect to Counts 3 and 4, and denied defendant’s motion with respect to Counts 1 and 2.

Prior to sentencing, the Court held a pre-sentence conference with Assistant District Attorney and Attorneys for the defendant, wherein, inter alia, the issue of restitution was discussed. Specifically, the discussion focused on the costs incurred by the County of Nassau in its investigation of the defendant. According to the Probation Department’s pre-sentence report, such investigative costs amounted to $17,572.30. During the discussion, the Court informed all counsel that, should the defendant voluntarily offer to recompense the County for its investigative costs, the Court would seriously evaluate and consider such a proposal in determining an appropriate sentence.

On March 7, 1997, as the Court imposed sentence, it asked the defendant whether he voluntarily made the offer proposed by defense counsel and that he consented to it. After a short colloquy, the defendant indicated his consent to repay Nassau County for its investigative costs. The Court then sentenced the defendant to term of probation of five years with additional conditions of (1) payment of a $5,000.00 fine and (2) payment of $17,572.30, reimbursement to Nassau County for investigative costs, plus a 5% surcharge for a total of $18,450.92, at a rate of $350.00 per month beginning April 6, 1997 and continuing over the probationary period.

Defense counsel seeks to have this Criminal Court vacate a condition of defendant’s sentence of probation wherein the Court directed that the defendant reimburse Nassau County for the costs associated with its investigation of the defendant. Defense counsel asserts that the portion of the sentence directing restitution “was illegally imposed, unauthorized and invalid as a matter of law in that neither the Nassau County District Attorney nor the Nassau County Police Department is a ‘victim’ qualified to receive restitution for public monies received in the pursuit of solving crimes.

In response to defense counsel’s application and argument, the People do not contest defense counsel’s assertion that the restitution portion of criminal defendant’s sentence was unauthorized, but maintain that “… the entire sentence imposed by this Court on March 7, 1997 should be vacated and the matter should be scheduled for resentencing”

It is clear by the language of the applicable statutory sections and the case law interpreting those sections that the reimbursement ordered by the Court as a condition of the sentence of probation imposed upon the defendant is not “restitution” as that term has been interpreted and defined by case law. Such monies are “part of the county’s operating costs” and cannot be categorized as restitution or reparation because the county is not a “victim.” Thus, the Court agrees with counsel that such a condition would be unauthorized and could not stand when challenged, if, the particular statutory sections cited to by counsel were the only authority for imposing such a condition of probation for DWI.

The legislature noted that public policy considerations dictate that courts should “be scrupulously concerned about public safety in making sentencing decisions.” Legislative Memorandum in Support of Assembly Bill 10473-A. Recognizing this, the legislature specifically overruled McNair by enacting subdivision (4). At the same time, the legislature enacted subdivision (5) which further expanded the authority of sentencing courts to fashion and impose reasonable conditions as part of a sentence of probation. The legislature, in its statement of support, simply noted that subdivision (5), set forth below, provides “sentencing judges with greater flexibility in imposing other conditions of probation.” Legis. Memorandum at 2589.

PL § 65.10(5)–Other conditions provides: When imposing a sentence of probation the court may, in addition to any conditions imposed pursuant to subdivisions two, three and four of this section, require that the defendant comply with any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant.

The plain language of the statutory section provides authority for the Criminal Court, as part of a sentence of probation, to impose any reasonable condition, such as reimbursement to Nassau County for “operating costs”, although such costs would not be the subject of restitution or reparation under subdivision (2)(g) of PL § 65.10 or PL § 60.27(1). Thus, notwithstanding the People’s concerns, as set forth in their supplemental letter brief, that the rules of statutory construction preclude imposition of such a condition, the words of the statute plainly set forth the legislature’s intent and resort to statutory construction is unnecessary and unwarranted.

After consideration of the purposes of sentencing, such as rehabilitation, public safety, punishment and deterrence, the Criminal Court concluded that a sentence of incarceration was not a preferred sentencing option. The Court determined that, under the circumstances present, a sentence of probation with a maximum fine and an additional condition directing the defendant to reimburse Nassau County for the costs incurred in its investigation met the established purposes of sentencing and was consistent with the ends of justice. Therefore, the Court sentenced the defendant accordingly.

The Court next turns to the People’s suggestion that application of PL § 65.10(5) to the case at bar would be violative of the constitutional protection against ex post facto legislation. “An ex post facto law is one which imposes punishment for an act not criminal when committed; [or] imposes additional punishment;”. The statutory amendment in question does not authorize new or additional punishment but, as stated previously, merely provides “sentencing judges with greater flexibility in imposing other conditions of probation.”

Here, the punishment authorized and imposed was a sentence of probation. The statutory section under which the Court imposed additional conditions to the defendant’s sentence was enacted and made effective on September 18, 1996, a date prior to the March 7, 1997, sentencing date. Therefore, the Court could rely upon the statutory section for authority to direct the defendant to repay Nassau County for its investigative costs.

Further, before imposing such a condition, the Court must determine that such a condition is necessary or appropriate to serve either or both of the enunciated purposes, i.e., to ameliorate the criminal conduct or to prevent the incarceration of the defendant. The statutory provision is, in effect, ameliorative in nature, in that, in place and instead of incarceration, a defendant may be directed to comply with reasonable conditions attendant to a sentence of probation (a reduction in the punishment imposed). Again, the statutory amendment was enacted and made effective prior to the date the defendant was sentenced. Accordingly, the Court was authorized to utilize subdivision (5) of PL § 65.10 to impose the particular condition in question as part of the defendant’s sentence of probation for drug possession.

Regarding defense counsel’s claim that the defendant’s consent to pay restitution “was entered under duress, coercion and misrepresentation”, the Court would simply note that imposition of such a condition satisfied the dual purposes of PL § 65.10(5) and, therefore, was an authorized condition of probation. Although at the time of sentencing the Court elicited the defendant’s consent to pay restitution, his consent was not required before the Court could impose the condition.

For all the above stated reasons, the defendant’s motion for an order setting aside and modifying the sentence imposed upon the defendant to vacate that portion of the sentence requiring the defendant to reimburse Nassau County the sum of $17,572.30 for costs incurred in its investigation of defendant is denied.

Criminal cases should be entrusted to experienced and worthy lawyers like our Nassau County Criminal Attorneys here in Stephen Bilkis and associates. By reason of the years of their experience, we will be able to protect you from any forms of abuse while your case is pending. For other matters, you can also consult our Nassau County Robbery Lawyers.

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