People v. DiSalvo

Appellate Division of the Supreme Court of New York

People v. DiSalvo

130 A.D.3d 841, 12 N.Y.S.3d 555

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 2015

Docket2013-07651

StatusPublished

Cited by3 cases

This text of 130 A.D.3d 841 (People v. DiSalvo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. DiSalvo, 130 A.D.3d 841, 12 N.Y.S.3d 555 (N.Y. Ct. App. 2015).

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Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Camacho, J.), rendered July 10, 2013, convicting him of failure to pay wages in violation of Labor Law § 191 (1) (a), upon a jury verdict, and imposing a term of incarceration of 60 days, a period of probation of three years, and a fine of $5,000, and directing him to pay restitution. By decision and order on motion dated January 17, 2014, this Court, inter alia, granted the defendant’s motion to stay execution, pending the hearing and determination of the appeal, of so much of the judgment as imposed a period of probation and directed the defendant to pay restitution.

Ordered that the judgment is modified, on the law, by vacating the provision of the sentence imposing a $5,000 fine; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

Contrary to the defendant’s contention, the County Court was permitted to sentence him to a period of probation. A conviction of failure to pay wages in violation of Labor Law § 191 (1) (a), which is defined as a misdemeanor punishable by a fine or imprisonment, is a class A misdemeanor (Labor Law § 198-a [1]; see Penal Law § 55.10 [2] [b]) and, therefore, a crime (see Penal Law § 10.00 [6]). Thus, a court may sentence a defendant to a period of probation for the crime of failure to pay wages (see Penal Law § 65.00 [1] [a]), and the imposition of a period of probation in addition to a 60-day term of incarceration was authorized here (see Penal Law § 60.01 [2] [d]; People v Bohacek, 95 AD3d 1592, 1595 [2012]).

However, the County Court improperly imposed a $5,000 fine on the defendant. By its terms, Labor Law § 198-a (1) provides for punishment by a fine or imprisonment, but not both a fine and imprisonment, for a first conviction. As the defendant has already served his 60-day term of incarceration, the provision of the sentence imposing a $5,000 fine on the defendant must be vacated. Skelos, J.P., Hall, Roman and Duffy, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Suffolk County (Camacho, J.), rendered July 10, 2013, convicting him of failure to pay wages in violation of Labor Law § 191 (1) (a), upon a jury verdict, and imposing a term of incarceration of 60 days, a period of probation of three years, and a fine of $5,000, and directing him to pay restitution. By decision and order on motion dated January 17, 2014, this Court, inter alia, granted the defendant’s motion to stay execution, pending the hearing and determination of the appeal, of so much of the judgment as imposed a period of probation and directed the defendant to pay restitution.

Ordered that the judgment is modified, on the law, by vacating the provision of the sentence imposing a $5,000 fine; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

Contrary to the defendant’s contention, the County Court was permitted to sentence him to a period of probation. A conviction of failure to pay wages in violation of Labor Law § 191 (1) (a), which is defined as a misdemeanor punishable by a fine or imprisonment, is a class A misdemeanor (Labor Law § 198-a [1]; see Penal Law § 55.10 [2] [b]) and, therefore, a crime (see Penal Law § 10.00 [6]). Thus, a court may sentence a defendant to a period of probation for the crime of failure to pay wages (see Penal Law § 65.00 [1] [a]), and the imposition of a period of probation in addition to a 60-day term of incarceration was authorized here (see Penal Law § 60.01 [2] [d]; People v Bohacek, 95 AD3d 1592, 1595 [2012]).

However, the County Court improperly imposed a $5,000 fine on the defendant. By its terms, Labor Law § 198-a (1) provides for punishment by a fine or imprisonment, but not both a fine and imprisonment, for a first conviction. As the defendant has already served his 60-day term of incarceration, the provision of the sentence imposing a $5,000 fine on the defendant must be vacated. Skelos, J.P., Hall, Roman and Duffy, JJ., concur.

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Bluebook (online)

130 A.D.3d 841, 12 N.Y.S.3d 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-disalvo-nyappdiv-2015.

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