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Failure to Pay Wages In Violation of Labor Law 191 (1)(a) is a Class A Misdemeanor—Therefore Defendant Was Properly Sentenced to a Period of Incarceration Followed by a Period of Probation—The Statute Authorizes Incarceration or a Fine—Because the Defendant Was Incarcerated, the Fine Must Be Vacated

The Second Department determined defendant was properly incarcerated for 60 days and sentenced to a period of probation for failure to pay wages in violation of Labor Law 191(1)(a), which in a Class A misdemeanor.  However, the statute allows for incarceration or a fine.  Because defendant had served 60 days, the imposition of the $5000 fine was vacated:

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]…).

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. People v DiSalvo, 2015 NY Slip Op 06164, 2nd Dept 7-15-15

 

Only the Board of Parole Has the Authority to Impose Conditions On Postrelease Supervision/Fine or Restitution Imposed Without Having Been Discussed at Sentencing Must Be Stricken—Case Remitted

The Third Department noted that County Court should not have imposed conditions upon defendant's postrelease supervision because only the Board of Parole has that power.  The Third Department also noted that County Court should not have imposed a fine or restitution which were not mentioned during the plea proceedings, but the order of protection, which was discussed, should stand:

because only the Board of Parole is authorized to impose the conditions of a term of postrelease supervision (…Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing and the conditions should be stricken. Similarly, inasmuch as neither a fine nor restitution was mentioned at the plea proceedings, the matter must be remitted to allow County Court to either impose the sentence that was negotiated or to give defendant an opportunity to withdraw his plea before imposing the enhanced sentence … .

In contrast, while only an order of protection against the victim was discussed during the plea agreement, “[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement” … . Accordingly, County Court did not err when it imposed an order of protection in favor of the victim and her family at sentencing and, notwithstanding this Court's determination to remit this matter, the order of protection remains in place. People v Curry, 2014 NY Slip Op 09069, 3rd Dept 12-31-14

 

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Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing

The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary.  County Court’s indication that the fine was “mandatory” required remittal for resentencing.  People v Olmstead, 105214, 3rd Dept 11-21-13

 

Imposition of Fine After Promise No Fine Would Be Imposed Required Vacation of Guilty Plea

The Third Department vacated defendant’s sentence because County Court promised the sentence would not include a fine, but County Court imposed a fine because a fine was required by law.  The court wrote:

Defendant pleaded guilty to an indictment charging him with two counts of aggravated unlicensed operation of a motor vehicle in the first degree.  County Court agreed, in return, to sentence him to an aggregate jail term of one year with no fines.  While County Court sentenced defendant to the contemplated jail term, it further imposed a fine of $1,000 on each count.  Defendant now appeals.

County Court promised defendant that his sentence would not include a fine, but such sentence would have been illegal (see Vehicle and Traffic Law § 511 [3] [b]…). The legal sentence that County Court imposed was inconsistent with that promise.  Although defendant failed to preserve this issue by moving to withdraw the plea or vacate the judgment of conviction, the sentence must nevertheless “be vacated, and the matter remitted . . . to afford . . . defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty”… .  People v Faulcon, 104625, 3rd Dept 9-19-13

 

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