S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4805

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 25, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Crime Victims,  Crime  and
  Correction

AN  ACT  to  amend  the executive law and the criminal procedure law, in
  relation to probation administrative fees; and to amend chapter 55  of
  the  laws  of  1992,  amending  the tax law and other laws relating to
  taxes, surcharges, fees and funding,  in  relation  to  extending  the
  expiration of certain provisions of such chapter

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 257-c of the executive law, as added by chapter  55
of the laws of 1992 and subdivision 5 as amended by section 58 of part A
of chapter 56 of the laws of 2010, is amended to read as follows:
  S  257-c. Probation administrative [fee] FEES.  1. (A) Notwithstanding
any other provision of law, every county and the city of New York[,] may
adopt a local law requiring individuals currently serving or  who  shall
be  sentenced  to  a  period  of  probation upon conviction of any crime
[under article thirty-one of the vehicle and traffic law], AS DEFINED IN
SUBDIVISION SIX OF SECTION 10.00 OF THE PENAL  LAW,  OR  WHO  HAVE  BEEN
CONDITIONALLY  RELEASED  PURSUANT TO SUBDIVISION TWO OF SECTION 70.40 OF
THE PENAL LAW FOLLOWING CONVICTION OF SUCH A CRIME, to pay to the  local
probation  department  with the responsibility of supervising the proba-
tioner OR RELEASEE an administrative fee of UP  TO  thirty  dollars  per
month,  PROVIDED,  HOWEVER,  THAT  WHERE SUCH ADMINISTRATIVE FEES ESTAB-
LISHED AS OF AUGUST FIRST, TWO THOUSAND ELEVEN EXCEED THE AMOUNT AUTHOR-
IZED HEREIN, SUCH FEES MAY BE CONTINUED DURING THE  PERIOD  FROM  AUGUST
FIRST,  TWO  THOUSAND  NINE THROUGH JUNE THIRTIETH, TWO THOUSAND TWELVE.
[The department shall waive all or part of such fee  where,  because  of
the  indigence of the offender, the payment of said surcharge would work
an unreasonable hardship on the person convicted, his or  her  immediate

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05444-02-1

              

S. 4805                             2

family,  or  any other person who is dependent on such person for finan-
cial support.]
  (B)  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW, EVERY COUNTY AND THE
CITY OF NEW YORK MAY ADOPT A LOCAL LAW AUTHORIZING ITS PROBATION DEPART-
MENT, WHICH PERFORMS DRUG TESTING AS A CONDITION OF PROBATION OR  CONDI-
TIONAL RELEASE PURSUANT TO SUBDIVISION TWO OF SECTION 70.40 OF THE PENAL
LAW,  TO  BE  ENTITLED TO ASSESS A FEE TO THE PROBATIONER OR RELEASEE OF
THE ACTUAL COST OF SUCH TESTING, BUT IN NO EVENT MORE THAN EIGHT DOLLARS
FOR EACH TEST OR PANEL OF TESTS  ADMINISTERED.  FEES  FOR  DRUG  TESTING
SHALL  NOT  EXCEED  SIX  HUNDRED DOLLARS PER PROBATIONER OR RELEASEE PER
YEAR.
  FOR PURPOSES OF  THIS  PARAGRAPH,  "ACTUAL  COST"  SHALL  INCLUDE  THE
REASONABLE  COST FOR EQUIPMENT ACTUALLY CONSUMED IN CONDUCTING SUCH TEST
AND FOR ANALYSIS ACTUALLY PERFORMED BY A LABORATORY OR SIMILAR ENTITY.
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EVERY COUNTY  AND  THE
CITY OF NEW YORK MAY ADOPT A LOCAL LAW AUTHORIZING ITS PROBATION DEPART-
MENT TO BE ENTITLED TO ASSESS AN ELECTRONIC MONITORING FEE OF THE ACTUAL
PER  DIEM  COST  OF  ELECTRONIC MONITORING, WHERE AUTHORIZED PURSUANT TO
SUBDIVISION FOUR OF SECTION 65.10 OF THE PENAL  LAW,  TO  A  MAXIMUM  OF
EIGHT  DOLLARS PER DAY TO A PROBATIONER SUBJECT TO ELECTRONIC MONITORING
AS A CONDITION OF PROBATION. FEES FOR ELECTRONIC  MONITORING  SHALL  NOT
EXCEED NINE HUNDRED DOLLARS PER PROBATIONER.
  (D)  BEFORE IMPOSING ANY FEE AUTHORIZED BY THIS SECTION, THE PROBATION
DEPARTMENT SHALL NOTIFY THE PROBATIONER OR RELEASEE ORALLY AND IN  WRIT-
ING  OF:  (I) EACH PROPOSED FEE AND THE AMOUNT OF SUCH FEE; AND (II) THE
OPPORTUNITY TO MEET WITH THE DIRECTOR OF THE DEPARTMENT  OR,  CONSISTENT
WITH SUBDIVISION SEVEN OF THIS SECTION, THE DIRECTOR'S DESIGNEE CONCERN-
ING  ANY  SUCH  FEE,  AND  TO OFFER THE DIRECTOR OR DESIGNEE INFORMATION
TENDING TO SHOW THAT, BECAUSE OF THE PROBATIONER'S OR RELEASEE'S  FINAN-
CIAL  CIRCUMSTANCES OR A CHANGE IN SUCH CIRCUMSTANCES, SUCH PROPOSED FEE
AND/OR FEE AMOUNT WOULD WORK AN UNREASONABLE HARDSHIP ON THE PROBATIONER
OR RELEASEE, HIS OR HER IMMEDIATE FAMILY OR ANY OTHER PERSON WHO DEPENDS
ON HIM OR HER FOR FINANCIAL SUPPORT.   SUCH  NOTIFICATION,  WHICH  SHALL
INCLUDE  THE  WRITTEN  NOTICE PROMULGATED BY THE OFFICE OF PROBATION AND
CORRECTIONAL ALTERNATIVES PURSUANT TO SUBDIVISION SEVEN OF THIS SECTION,
SHALL ALSO INFORM THE PROBATIONER OR RELEASEE OF THE RIGHT AND PROCEDURE
TO BE HEARD IN THE COURT THAT IMPOSED THE SENTENCE REGARDING THE DEPART-
MENTAL DETERMINATION OF FEE PAYMENT, PURSUANT TO SECTION 410.15  OF  THE
CRIMINAL PROCEDURE LAW.
  (E)  THE PROBATION DEPARTMENT SHALL WAIVE ALL OR PART OF SUCH ADMINIS-
TRATIVE, DRUG TESTING AND ELECTRONIC MONITORING FEES WHERE,  BECAUSE  OF
THE  FINANCIAL CIRCUMSTANCES OF THE PROBATIONER OR RELEASEE, THE PAYMENT
OF SAID FEE WOULD WORK AN UNREASONABLE HARDSHIP ON  THE  PROBATIONER  OR
RELEASEE, HIS OR HER IMMEDIATE FAMILY OR ANY OTHER PERSON WHO DEPENDS ON
SUCH  PERSON FOR FINANCIAL SUPPORT.  SUCH DETERMINATION SHALL BE MADE BY
THE PROBATION DEPARTMENT BASED ON REGULATIONS PROMULGATED BY THE  OFFICE
OF PROBATION AND CORRECTIONAL ALTERNATIVES.
  2. The provisions of subdivision six of section 420.10 of the criminal
procedure law shall govern for purposes of collection of the administra-
tive  [fee],  DRUG  TESTING AND ELECTRONIC MONITORING FEES, EXCEPT THAT,
CONSISTENT WITH SUBDIVISION SEVEN OF THIS SECTION, ANOTHER  OFFICIAL  OR
AGENCY  MAY BE DESIGNATED TO COLLECT SUCH FEE WHEN SUCH FEES ARE DUE AND
OWING AND HAVING NOT BEEN PAID.  THE  SUPERVISING  PROBATION  DEPARTMENT
SHALL  ISSUE  A WRITTEN FEE DETERMINATION CONTAINING THE AMOUNT REQUIRED
TO BE PAID BY THE PROBATIONER OR RELEASEE.

S. 4805                             3

  3. The probation administrative fee, DRUG TESTING FEE, AND  ELECTRONIC
MONITORING  FEE  authorized  by this section shall not constitute nor be
imposed as a condition of probation.
  4.  In the event of non-payment of any fees which have not been waived
by the local probation department, the county or the city  of  New  York
may  seek to enforce payment in any manner permitted by law for enforce-
ment of a debt.
  5. Monies collected pursuant to this section  shall  be  utilized  for
probation  services by the local probation department. Such moneys shall
not be considered by the [division] OFFICE OF PROBATION AND CORRECTIONAL
ALTERNATIVES when determining state aid pursuant to section two  hundred
forty-six  of  [the  executive law] THIS CHAPTER. Monies collected shall
not be used to replace federal funds otherwise  utilized  for  probation
services.
  6.  THE  DIRECTOR OF THE OFFICE OF PROBATION AND CORRECTIONAL ALTERNA-
TIVES SHALL SUBMIT A REPORT,  WITH  RECOMMENDATIONS,  TO  THE  GOVERNOR,
TEMPORARY  PRESIDENT  OF  THE  SENATE,  SPEAKER  OF THE ASSEMBLY, TO THE
CHAIRPERSONS OF THE SENATE CRIME VICTIMS, CRIME AND  CORRECTION  COMMIT-
TEE,  AND  ASSEMBLY  CORRECTION  COMMITTEE,  SENATE  CODES COMMITTEE AND
ASSEMBLY CODES COMMITTEE ON OR BEFORE JANUARY FIRST, TWO THOUSAND TWELVE
AND JANUARY FIRST, TWO THOUSAND THIRTEEN.  THE REPORT SHALL INCLUDE, BUT
NOT BE  LIMITED  TO,  RATES  OF  PAYMENT  FOR  DIFFERENT  CATEGORIES  OF
CONVICTIONS  AND  TYPES  OF OFFENDERS, AND DATA FROM EACH COUNTY AND THE
CITY OF NEW YORK SPECIFYING THE FEES  OR  RANGES  OF  FEES  IMPOSED  AND
COLLECTED  FOR  SPECIFICALLY ADMINISTRATIVE, DRUG TESTING AND ELECTRONIC
MONITORING PURPOSES, NUMBERS AND PERCENTAGES OF  WAIVERS  FOR  FINANCIAL
CIRCUMSTANCES  REQUESTED AND GRANTED BY COUNTY, SHOWING AMOUNTS THEREOF,
COSTS AND TYPES OF DRUG TESTS  ADMINISTERED,  ANNUAL  REVENUE  COLLECTED
FROM  SUCH FEES AND EFFECTIVENESS OF SUCH FEES IN ENHANCING THE DELIVERY
OF PROBATION SERVICES.
  7. THE DIRECTOR OF THE OFFICE OF PROBATION AND  CORRECTIONAL  ALTERNA-
TIVES  SHALL  PROMULGATE  REGULATIONS  IMPLEMENTING  THE  IMPOSITION AND
COLLECTION OF ADMINISTRATIVE, DRUG TESTING,  AND  ELECTRONIC  MONITORING
FEES.  SUCH  REGULATIONS SHALL UTILIZE A MEANS TEST BASED ON TWO HUNDRED
PERCENT OF THE FEDERAL POVERTY GUIDELINES PROMULGATED  ANNUALLY  BY  THE
FEDERAL  DEPARTMENT  OF HEALTH AND HUMAN SERVICES AND IF THE PROBATIONER
OR RELEASEE FALLS BELOW SUCH PERCENTAGE THEN NO FEE  SHALL  BE  CHARGED,
AND  EARNINGS  ABOVE  SUCH  PERCENTAGE  SHALL BE CONSIDERED ON A SLIDING
SCALE. SUCH REGULATIONS SHALL ALSO PROVIDE  THAT  PROBATION  DEPARTMENTS
CONSIDER  ANY ADDITIONAL TEST OR INDICIA THAT DEMONSTRATES THE INABILITY
OF A PROBATIONER OR RELEASEE TO PAY SUCH  FEES.  THE  DIRECTOR  OF  SUCH
OFFICE  SHALL  ALSO PROMULGATE REGULATIONS PROHIBITING THE COLLECTION OF
PROBATION RELATED FEES BY PROBATION OFFICERS, SENIOR PROBATION  OFFICERS
OR PROBATION SUPERVISORS.
  S  2.  The  criminal  procedure law is amended by adding a new section
410.15 to read as follows:
S 410.15 MOTION REGARDING PROBATION-RELATED FEES.
  WHEN THE COURT WHICH IMPOSED SENTENCE RECEIVES A MOTION  CONCERNING  A
FEE  DETERMINATION  ISSUED BY A PROBATION DEPARTMENT PURSUANT TO SECTION
TWO  HUNDRED  FIFTY-SEVEN-C  OF  THE  EXECUTIVE  LAW,   THE   PROCEDURAL
PROVISIONS  OF  SUBDIVISION  ONE OF SECTION 410.20 OF THIS ARTICLE SHALL
APPLY, CONSISTENT WITH SUBDIVISION THREE OF  SUCH  SECTION  TWO  HUNDRED
FIFTY-SEVEN-C.  THE MOVANT AND PROBATION DEPARTMENT SHALL HAVE AN OPPOR-
TUNITY TO BE HEARD. AFTER DECIDING THE MOTION, THE COURT SHALL REMIT THE
MATTER FOR A FINAL DETERMINATION  BY  THE  PROBATION  DEPARTMENT,  WHICH
SHALL BE CONSISTENT WITH THE COURT'S RULING.

S. 4805                             4

  S  3.  Subdivision  (aa)  of  section 427 of chapter 55 of the laws of
1992, amending the tax law and other laws relating to taxes, surcharges,
fees and funding, as amended by section 11 of part A of  chapter  57  of
the laws of 2011, is amended to read as follows:
  (aa)  the  provisions  of  sections  three  hundred  eighty-two, three
hundred eighty-three and three hundred eighty-four  of  this  act  shall
expire on September 1, [2013] 2014;
  S  4.  This  act shall take effect immediately, provided, however that
(a) the provisions of this act shall apply to probationers and releasees
presently paying such fees; (b) the provisions of this act  shall  apply
to probationers and releasees directed to pay such fees after the effec-
tive  date  of this act pursuant to local law; and (c) the amendments to
section 257-c of the executive law made by section one of this act shall
not affect the expiration of such section and shall be deemed to  expire
therewith.