| People v DiSalvo |
| 2015 NY Slip Op 06164 |
| Decided on July 15, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 15, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.
2013-07651
(Ind. No. 1835-12)
v
Robert L. DiSalvo, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.
DECISION & ORDER
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 3 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).
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.
ENTER: Aprilanne Agostino Clerk of the Court