The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined, where a sentence of incarceration exceeds 60 days, a sentencing judge does not have the power to waive the mandatory surcharge. The only mechanism available to such a defendant who seeks to demonstrate the inability to pay the surcharge is a motion for resentencing:
… [T]he relevant statutes prohibit judicial waiver of a mandatory surcharge, require collection of any unpaid amounts from an inmate’s funds as of the moment of confinement and throughout the period of incarceration, and provide for deferral under limited circumstances, namely an inability to pay that is not solely due to incarceration. A person subject to a mandatory surcharge may seek to defer payment at any time after sentencing, by way of a motion to resentence under CPL 420.10 (5). In addition, persons sentenced to confinement of 60 days or less, may avoid filing such motion, and instead present information in support of a request to defer on the appearance date set forth on a summons issued pursuant to Penal Law § 60.35 (8). Under either procedural mechanism, if the court grants a deferral it must place its reasons on the record … , and issue a written order, which shall be treated as a civil judgment in accordance with CPLR 5016 … . This statutory scheme is structured to further the legislative goals of raising revenue and ensuring payment of the mandatory surcharge by persons convicted of crimes. People v Jones, 2016 NY Slip Op 01208, CtApp 2-18-16
CRIMINAL LAW (SENTENCING, DEFERRAL OF MANDATORY SURCHARGE)/SENTENCING (DEFERRAL OF MANDATORY SURCHARGE)/MANDATORY SURCHARGE (DEFERRAL)