People v. Hakes
2018 NY Slip Op 08538
New York State Court of Appeals
Decided: December 13, 2018
ISSUE:
Whether, as a condition of probation, sentencing courts can require a defendant to wear and pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet that measures their alcohol intake where the defendant was required to wear and pay for a SCRAM bracelet as a condition of his probation and was assigned an indeterminate prison term of one to three years when he stopped payment.
HOLDING:
The Court held that the sentencing courts can require a defendant to wear and pay for a SCRAM bracelet that measures their alcohol intake because Penal Law § 65.10 authorizes sentencing courts to require defendants to wear an electronic monitoring device. The statute allows sentencing courts to attach conditions to a probation sentence only if they are rehabilitative in nature and while the payment of costs associated are not explicitly stated, it is implicitly necessary to satisfy the condition itself.
FACTS OF THE CASE:
Defendant Brian Hakes pled guilty to felony driving while intoxicated in December of 2012. The County Court sentenced the defendant to six months’ incarceration concurrent with five years’ probation. As a condition, the court required Hakes to wear and pay for a SCRAM bracelet. After several payments, he stopped paying due to an alleged injury which interfered with his ability to work and earn the income necessary to pay the monitor fee and resulted in the removal of the bracelet by the monitoring company.
The County Court revoked the defendant’s probation after determining that he had violated a condition of his probation when he stopped wearing the SCRAM bracelet and an indeterminate prison term of one to three years was assigned. The Appellate Division found that the sentence imposed was illegal since the sentencing court cannot force the defendant to cover the cost of the SCRAM bracelet and therefore reversed the County Court’s decision.
COURT’S ANAYLYSIS:
The Court held that sentencing courts can require a defendant to wear and pay for a SCRAM bracelet that measures their alcohol intake because Penal Law § 65.10 (4) authorizes sentencing courts to require defendants to wear an electronic monitoring device. §65.10 was originally added to provide, in general, that the conditions and of probation and of conditional discharge shall be such as the court, in its discretion, deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist him to do so. Penal Law § 65.10.
The second part of the Penal Law lists conditions of probation that a court could impose on a defendant, including, among other things, that a defendant shall refrain from frequenting unlawful or disreputable places, work faithfully at a suitable employment or pursue a course of study or of vocational training, undergo available medical or psychiatric treatment, support their dependents, make restitution or make reparation, in an amount they can afford to pay and post bond or other security for the performance of all conditions. Id. It wasn’t until 1996, after two major decision of the court, that the legislature substantially changed § 65.10 regarding a sentencing court’s ability to impose specific conditions of probation.
Subdivision 4 of Penal Law § 65.10
In People v. Letterlough, the Court held that to force a defendant to attach a fluorescent sign stating CONVICTED DWI onto the license plate of the car that they drive conflicts with § 65.10 because the legislature clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation. They attempted to make a distinction between rehabilitation and punitive or deterrent sanctions but were unable. They decided that the Legislature did not mention punishment or deterrence as goals to be obtained through the imposition of probationary conditions pursuant to Penal Law § 65.10.
Letterlough draws many parallels to People v. McNair, where the Court held that requiring a defendant, who had pled guilty to felony driving while intoxicated, to wear an electronic monitoring device for a year was beyond the authority of the sentencing court. Again, the Court determined that the sentencing court’s intent did not lie with the defendant’s rehabilitation, but rather with the public’s safety and surveillance. The Court rationalized that the use of electronic monitoring was the province of the Legislature, not the Judiciary.
As a result of both Letterlough and McNair, subdivision 4 was added to Penal Law § 65.10, authorizing a sentencing court to require the defendant to submit to the use of an electronic monitoring device where the court, in its discretion, determines that such condition will advance public safety, probationer control or probationer surveillance.
Costs Associated with an Electronic Monitoring Device
The defendant argued that while the condition requiring a probationer to submit to electronic monitoring may be permissible, the additional requirement of payment is a punitive measure that serves no public safety or deterrent goal. The legislative history of Penal Law § 65.10 does not support this assumption because nothing in the legislature says that the sentencing court is only meant to authorize electronic monitoring if the cost is borne by the State.
Penal Law § 65.10 authorizes a variety of conditions of probation ranging from pursuing a course of study to obtaining psychiatric treatment which concurrently require the defendant to pay certain costs and recurring fees. While the payment of said costs are not explicitly stated, it is implicitly necessary to satisfy the condition itself. In Letterlough, it was determined that the court cannot create a probationary condition that is more punitive than it is rehabilitative. The condition in this case is no different because payment is part and parcel of the requirement that the defendant wear and maintain a functioning SCRAM bracelet. It is decided that the costs associated with the electronic monitoring is minimized because the condition serves to protect the public from alcohol-related offenses while assisting the defendant’s rehabilitation during his probationary term.
While the courts are allowed to assign conditions during a defendant’s probation, they cannot impose a condition of probation that includes costs a particular defendant cannot feasibly meet. Nor can they incarcerate a defendant who had initially agreed to meet a condition requiring a payment, but who subsequently becomes unable to do so. As such, a probationary sentence is tentative in that it may be altered or revoked at the court’s discretion any time after the sentence is pronounced.
Thus, if a defendant argues, at any point, that he or she cannot meet the financial obligations attendant to a certain condition, the sentencing court must hold a hearing on the matter. If the sentencing court finds that the defendant effectively demonstrated an inability to pay the costs associated with a particular condition, the court must attempt to create a reasonable alternative to incarceration. On the other hand, if the sentencing court finds that the defendant willingly refused to pay, when they have the ability to pay, the court is justified in revoking probation and using imprisonment as an appropriate penalty for the offense.