22.27 - B. Indigence

• Jurisdiction: New York

b. Indigence

If the state determines that a fine or restitution is the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacks the resources to pay it. Nothing prevents imprisonment for willful refusal to pay. Only if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the state’s interest in punishment and deterrence may the state imprison a probationer who has made sufficient bona fide efforts to pay.³¹⁴⁶

Monetary sanctions consist of “fines,” “restitution or reparation” and a “surcharge.” A fine is an amount to be paid to the public treasury and is considered a sentence. It may be imposed as the sole sentence (where imprisonment is not mandatory), or it may be imposed in addition to another sentence (e.g., imprisonment and a fine or probation and a fine).³¹⁴⁷

Restitution and reparation are paid over to the victim (not directly but through a “restitution agency”).³¹⁴⁸ Although these sanctions are not deemed sentences, the court is required to consider them in every case. When imposed, the requirement of restitution or reparation is deemed part of the sentence.³¹⁴⁹

Where appropriate, the district attorney, at or before sentencing, shall advise the court that the victim seeks restitution or reparation and the amount of same.³¹⁵⁰ The court must also consider the victim impact statement on the issues of restitution or reparation. Unless the interests of justice dictate otherwise, the court shall require the defendant to make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss caused to the victim.³¹⁵¹ For example, a defendant acquitted of grand larceny perpetrated through the filing of false instruments but convicted only of offering a false instrument for filing may be required to make reparation for the victim’s out-of-pocket loss suffered as the result of the defendant’s filing of false instruments.³¹⁵²

Upon defense request, or where the record information is insufficient, the court must conduct a hearing and make findings as to the dollar amount of the fruits of the offense and actual out-of-pocket loss.³¹⁵³ The restitution and/or reparation must be in an amount the defendant can afford to pay.³¹⁵⁴ The court must consider the victim impact statement. The hearing must comport with the procedures set forth in CPL § 400.30.

The court may not delegate its power to determine the amount and terms of restitution and/or reparation.³¹⁵⁵ Where the record is...