The rule in Sparber does not apply in Guerrero, however, because:
"We now hold that the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35 (1) are not a part of a sentence within the meaning of sections 380.20 and 380.40 of the CPL; therefore, a judge need not pronounce them in a defendant's presence during sentencing".The Court further explained:
"the statute's nomenclature reinforces its non-punitive nature: the assessments imposed by section 60.35 (1) are called a "surcharge" or a "fee," not a "penalty." Indeed, when first enacted in 1982, Penal Law § 60.35 was entitled "Mandatory penalty assessment required in certain cases" (emphasis added). The very next year, the Legislature changed every statutory reference to "penalty assessment" in Penal Law § 60.35 and CPL 420.35 to "mandatory surcharge" (see L 1983, ch 15, §§ 2 and 3 [emphasis added]). A "surcharge" is generally defined as "an additional tax, cost, or impost" (see Merriam-Webster's Collegiate Dictionary 1185 [10th ed 1996])."This raises the question of whether a defendant can have his probation or parole revoked for failing to pay these fees since, as Guerrero explains, they are not penal in nature and are not intended to be punitive. (Special thanks to Second Assistant Public Defender Jill Paperno for bringing this case and its applicability in post-conviction proceedings to the Indignant Indigent's attention).
