NY State Senate Bill 2009-S3241

Senate Bill S3241

2009-2010 Legislative Session

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

download bill text pdf

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to crime victims, crime and correction
Mar 13, 2009	referred to crime victims, crime and correction

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2009-S3241 (ACTIVE) - Details

See Assembly Version of this Bill:: A4611
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Executive Law
Laws Affected:: Amd §257-c, Exec L; add §410.15, CP L; amd §427, Chap 55 of 1992
Versions Introduced in 2011-2012 Legislative Session:: S4805, A2997

2009-S3241 (ACTIVE) - Summary

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

2009-S3241 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3241

 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.

 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.

2009-S3241 (ACTIVE) - Bill Text download pdf

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

                                  3241

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 13, 2009
                               ___________

Introduced by Sens. FLANAGAN, DeFRANCISCO, O. JOHNSON, LAVALLE, MAZIARZ,
  MORAHAN,  SALAND,  VOLKER  -- 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, 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 NINE 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 TEN.  [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.
                                                           LBD06500-01-9

S. 3241                             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 DIVISION 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  DIVI-
SION 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. 3241                             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 OF PROBATION AND CORRECTIONAL ALTERNA-
TIVES when determining state aid reimbursement 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 division 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,  [nineteen  hundred
ninety-three]  TWO  THOUSAND  TEN  and  January first, [nineteen hundred
ninety-four as to the effectiveness of the probation administrative  fee
in  enhancing  the  delivery of probation services throughout the state]
TWO THOUSAND ELEVEN.  The report shall include, but not be  limited  to,
[amounts  of fees imposed and collected,] rates of payment for different
categories of convictions and types of offenders, and [remedies utilized
and costs incurred for collection in cases  of  non-payment]  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 DIVISION 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
DIVISION 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

S. 3241                             4

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 C of  chapter  56  of
the laws of 2007, 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, [2009] 2011;
  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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