A Defense Lawyer said that, that on February 4, 1982 on Upper Falls Boulevard, Rochester, New York, defendant a 28 year old housewife operated a vehicle while under the influence of alcohol. Her breathalyzer test was .24 of 1 per cent of blood alcohol. On the previous day, she had received final divorce papers from her husband of the past eleven years. Defendant said that she had been drinking heavily throughout the nighttime. About six o’clock in the morning a minor accident, causing no discernable property damage or personal injury precipitated her arrest. No prior alcohol history exists, and it is her first such charge.
A reporter said that, the attendant circumstances operate only in mitigation of sentence and punishment rather than as a defense to the charge, or in exoneration of guilt. Therefore, these circumstances would, ordinarily, influence her at this time in the manner in which I might impose sentence, including any fine. On March 11, 1982 the defendant pleaded guilty to a violation of subdivision 3 of § 1192 of the Vehicle and Traffic Law–Operating a Motor Vehicle while under the Influence of Alcohol. This Court must now impose sentence under subdivision 5 of § 1192 as amended by the Laws of 1981, c. 910.
The issue in this case is whether defendant can be held liable for DWI.
The court said that, misdemeanors of this type–on first offense–generally indicate to this Court that a probationary period is desirable, either supervised directly by the County Probation Department, or supervised indirectly by the police through a conditional discharge of one year. However, if there were any personal injury or property damage, restitution would be ordered. And, if the personal injury were serious or fatal a jail sentence would be imposed. A fine also is customary, depending on the circumstances.
However, since enactment of the Laws of 1981, c. 910, other factors have entered the sentencing process in respect to DWI offenses. The Legislature has removed all judicial discretion as to a part of the sentence. The new laws state: 5. A violation of subdivisions two, three or four of this section shall be punishable by imprisonment in a county jail for not more than one year, or by a fine of not less than three hundred fifty dollars nor more than $500.00, or by both such fine and imprisonment. And subdivision 6 states: Notwithstanding any provision of the Penal Law, no judge or magistrate shall impose a sentence of unconditional discharge for a violation of any subdivision of this section nor shall he impose a sentence of conditional discharge, unless such conditional discharge is accompanied by a sentence of a fine as provided in this section.
In sum, these laws require the Court either to send the defendant to jail or to fine her a minimum of $350.00. Because the facts in this case do not justify, in my opinion, a term of imprisonment, I must, by law, fine the defendant at least $350.00.
The Monroe County Public Defender’s Office represented the indigent defendant in this case, and, at the time of taking her plea, asked the Court to conduct an ability-to-pay hearing in accordance with § 420.10, subdivision 4, of the C.P.L. The object of the hearing was the taking of proof on the economic resources of the defendant, to ascertain her ability to pay a fine of $350.00 and, to decide whether, in light of her admitted indigency, the fine was excessive. After some legal argument, the Court deferred sentencing and conducted the hearing on April 21, 1982.
The legal arguments are significant. Subdivision 4 of C.P.L. § 420.10 allows only an “Application for Resentence” based on a defendant’s inability to pay a fine. It is effective only AFTER the Court has already imposed the sentence of a fine or restitution, etc., not BEFORE. If after the fine is imposed a defendant meets the burden of proving his inability to pay in an evidentiary hearing, then the sentencing court may resentence the defendant under the statute.
In this respect however, the statutory scheme of C.P.L. § 420.10 runs contrary to the express provisions of two fundamental organic laws. Both § 5 of Article I of the New York State Constitution, and Amendment VIII of the U. S. Constitution, provide, in explicit and simple language: Excessive bail shall not be required, nor excessive fines imposed. These constitutional provisions require that the question of excessiveness be answered BEFORE, or during, imposition of sentence not afterward. The constitutional injunction against excessiveness operates at or before the time of imposition of sentence. It is a prior or contemporaneous restraint on judicial discretion in sentencing. A court must, under these constitutional clauses, answer the issue of excessiveness, therefore, in the first instance, and cannot, as C.P.L. § 420.10 suggests, impose an excessive fine ab initio and correct it later on. The court must decide whether the fine is excessive now, not later.
The question thus becomes what, then, is an excessive fine under the Constitution. In a 1971 case, the United States Supreme Court held that a fine of $425.00 was excessive if imposed on an indigent defendant who could not pay it and who faced jail as the only alternative to payment of the fine. The origins and history behind the adoption of these constitutional clauses provides some insight into the meaning of excessiveness.
These clauses first appeared in English Constitutional history in the Petition of Right to King Charles I in 1628 and in the Declaration of Rights issued in 1689 by Parliament in the Act of Settlement. They were the creatures of the bloody “Glorious Revolution” of Seventeenth Century England. They derived from specific and notorious cases in which the Stuart Kings had trampled upon the Magna Carta rights of the English Nobility.
New York’s Constitution, in 1846, adopted a Bill of Rights which also contains the same language as the VIII Amendment prohibiting excessive fines. The Court therefore concludes that one of the meanings of excessiveness intended by this language is a relative comparison between the amount of the fine and the wealth of the defendant.
To these facts, the Court must apply the principles of subjective disproportionate impact as outlined above; and apply them at the time of sentencing, not afterwards. The Court finds that defendant has no economic resources presently available, or in reasonably near expectancy, with which to pay the fine of $350.00 mandated by law.
Accordingly, the Court finds that, as to her, the mandated fine is excessive and constitutionally prohibited. Buttressing this finding of excessiveness in this particular case, is the empirical data that this is the first such finding in more than 74 D.W.I. cases to come before this Court since the Laws of 1981, c. 910 took effect. In the other 73 cases, all the defendants were wealthy enough to pay the fine most of them on the day of sentencing. Thus there is no constitutional infirmity in the law itself. The infirmity arises only upon its application. For the most part, defendants will be required to pay because no question of excessiveness as to them can be raised. But as to this defendant, on this day, in her economic circumstances, the Constitutional injunction against excessive fines shall stand supreme. The Court sentences the defendant to a conditional discharge of one year.
In a misdemeanor case, of this type in the case at bar, on first offense, generally indicate to this Court that a probationary period is desirable, either supervised directly by the County Probation Department, or supervised indirectly by the police through a conditional discharge of one year. To understand the law, there is a need for a New York DWI Attorney and/or New York Criminal Attorney at Stephen Bilkis and Associates. Call us.