Defendant Need Not Be Present For Pronouncement Of Mandatory Surcharge And Crime Victim Assistance Fee

A criminal defendant has a right to be personally present at the time his “sentence” is pronounced (Criminal Procedure Law 380.40).  But what exactly comprises a defendant’s “sentence?”

The Court of Appeals answered an aspect of this question yesterday in People v Guerrero , 2009 NY Slip Op 01242.

The defendant pleaded guilty to murder in the second in exchange for a sentence of 19 years to life.  At his sentencing, the defendant was of course told of his 19 years to life term.  But he was not advised that he was required to pay a mandatory surcharge of $150 and a crime victim assistance fee of $2 (Penal Law § 60.35 [1]).  The defendant appealed his convicting arguing he should have been present when the court imposed them.

The Court reached a similar issue last year in People v Sparber, 10 NY3d 457 [2008], in which the Court held that post-release supervision is a component element of a sentence of which a defendant must be advised at the time of sentencing.

However, here in People v Guerrero, the Court held that the mandatory surcharge and crime victim assistance fee are not part of the defendant’s sentence, and thus, a judge need not pronounce them in a defendant’s presence during sentencing.

The Court primarily noted that Penal Law § 60.35 (1) states that “there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law.”  It was this “in addition to any sentence” language which persuaded the Court that the mandatory surcharge and the crime victim assistance fee were not a part of a defendant’s sentence.  The Court also noted that § 60.35 was originally enacted as part of a revenue raising measure, and was not intended as a punitive measure against criminal defendants.  The Court thus affirmed the defendant’s conviction.

Commentary: The Court of Appeals’ decision may be technically correct.  Nevertheless, it would be better practice if a criminal defendant were told of all of the consequences of his conviction at the time of sentencing.  Sentencing judges who do no advise defendants of the mandatory surcharge and crime victim assistance fee are simply engaging in judicial sloppiness.

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