Bill S4805-2011

Authorizes counties and the city of New York to impose a fee on probationary people for the cost of drug tests

Authorizes counties and the city of New York to impose fees on people serving probation for the actual cost of drug tests up to $600 per year.

Details

Actions

  • May 15, 2012: REPORTED AND COMMITTED TO FINANCE
  • Jan 4, 2012: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • Apr 25, 2011: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

Votes

VOTE: COMMITTEE VOTE: - Crime Victims, Crime and Correction - May 15, 2012
Ayes (9): Nozzolio, DeFrancisco, Gallivan, Griffo, Little, Maziarz, Ranzenhofer, Ritchie, Espaillat
Ayes W/R (2): Kennedy, Peralta
Nays (3): Rivera, Hassell-Thompson, Montgomery

Memo

BILL NUMBER:S4805

TITLE OF BILL:

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

PURPOSE:

To assist counties with administrative costs incurred by local probation departments in rendering probation services. This legislation expands authority for local jurisdictions to impose a general administrative fee, a fee for electronic monitoring, and drug testing fees upon all adult probationers or conditional releasees.

SUMMARY OF PROVISIONS:

Section one of the bill amends §257-c of the Executive Law authorizing local probation departments to impose certain fees upon probationers or releasees.

A new paragraph (a) of subdivision 1 of §257-c is designated to authorize local probation departments to collect an administrative fee of up to $30 per month per probationer.

A new paragraph (b) is added authorizing local probation departments to impose fees for drug testing of up to $8 per test upon probationers. Fees for drug testing shall not exceed $600 in anyone calendar year per probationer.

A new paragraph (c) is added to authorize local probation departments to impose fees of up to $8 per day upon probationers for electronic monitoring Fees for electronic monitoring shall not exceed $900 per probationer.

A new paragraph (d) is added to require the local probation department to notify the probationer or release of each fee, the amounts, and that the probationer may meet with a designee of the department to show that imposition of such fee or fees may work an undue hardship on the probationer or his family.

A new paragraph (e) is added to allow the local department to waive all or any part of fees which, according to state regulations, are deemed to place an undue burden on a probationer or any person who is dependent upon such person for financial support.

Subdivision 2 of §257-c is amended to require that the provisions of subd. 6 of §420.10 of the Criminal Procedure Law shall govern for purposes of collection of the administrative, drug testing and monitoring fees, although another agency or official may be designated to collect such fees.

Subdivision 3 of §257 -c is amended to establish that these new fees shall not be a condition of probation. A new paragraph (e) is added to allow the local department to waive all or any part of fees which, according to state regulations, are deemed to place an undue burden on a probationer or any person who is dependent upon such person for financial support.

Subdivision 2 of §257-c is amended to require that the provisions of subd. 6 of §420.10 of the Criminal Procedure Law shall govern for purposes of collection of the administrative, drug testing and monitoring fees, although another agency or official may be designated to collect such fees.

Subdivision 3 of §257-c is amended to establish that these new fees shall not be a condition of probation.

Subdivision 5 of §257-c is amended to direct local probation departments to use the revenue generated from all such fees be used exclusively for local probation services. This subdivision also prohibits the Division of Probation and Correctional Alternatives from considering these monies when determining state aid reimbursement to local probation departments. Furthermore, monies collected shall not be used to replace federal funds earmarked for probation services.

Subdivision 6 is amended to require an annual report to the legislature analyzing the collection of such fees and their effectiveness in enhancing probation services.

A new subdivision 7 is added to direct the Division of Probation and Correctional Alternatives to promulgate regulations governing hardship waivers.

Section two of the bill adds a new §410.15 to the CPL establishing procedures governing motions regarding probation-related fees.

Section three of the bill delineates the effective date.

JUSTIFICATION:

This legislation is necessary because of an opinion of the New York State Attorney General (2003-4), which stated that counties may not, pursuant to their home rule authority alone, enact local laws imposing administrative probation fees. Approximately fifteen counties already have local laws in place imposing many of these fees. This legislation is necessary to codify local authority to

impose such local laws. Current law already provides for the imposition of probation fees upon persons convicted of Driving While Intoxicated. The expansion of probation fees has become necessary as the scope of probation services expands and new technologies for tracking and monitoring the activities of probationers arise. These costs have escalated sharply in recent years and state reimbursement and dedicated local funds are not enough to meet the demands placed on these local probation departments. The costs associated with probation enforcement are often high, placing an undue strain on local taxpayers. Furthermore, probation departments incur great expenses meeting with probationers at home or work, often traveling great distances for such meetings. This legislation would allow a local probation department to, taking into account the individual's ability to pay, impose fees upon certain probationers. This legislation will save millions of dollars for law-abiding citizens throughout New York.

PRIOR LEGISLATIVE HISTORY: 2003: S.5436-A - Passed Senate/A.9044-A - Assembly Corrections 2004: S.7713-A - Passed Senate/A.10159-A - Assembly 3rd Reading Cal. 2005-06: S.2842-A - Passed Senate/A.3245-B - Assembly Corrections Cmte. 2007-08: S.1258A - Passed Senate/A.5588A - Assembly Corrections Cmte. 2009-10: S.3241 - Crime Victims, Crime & Correction Cmte.

FISCAL IMPLICATIONS: None to state. Counties which enact local laws prospectively to impose surcharges will see increased revenues for costs associated with providing probation services. Counties which have already enacted local laws will avoid large deficits in their probation department budgets.

EFFECTIVE DATE:

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 effective date of this act pursuant to local law; and (c) the amendments to §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.


Text

STATE OF NEW YORK ________________________________________________________________________ 4805 2011-2012 Regular Sessions IN SENATE 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
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.
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 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.

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