| People v Thomas |
| 2018 NY Slip Op 01636 |
| Decided on March 15, 2018 |
| Appellate Division, First 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 March 15, 2018
Acosta, P.J., Richter, Kapnick, Kahn, Gesmer, JJ.
5982 1660/12
v
Thomasina Thomas, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Appeal from judgment, Supreme Court, New York County (Renee A. White, J. at plea; Melissa C. Jackson, J. at sentencing), rendered August 18, 2016, convicting defendant of grand larceny in the third degree and petit larceny, and sentencing her to concurrent terms of six months, held in abeyance, and the matter remanded for further proceedings in accordance herewith.
Defendant, who was sentenced to a six-month jail term after she failed to fully comply with the restitution conditions of her plea agreement, claims that she was unconstitutionally imprisoned for her indigency (see Bearden v Georgia, 461 US 660 [1983]). We remand the matter for a hearing in accordance with Bearden to determine whether defendant's failure to pay was willful and, if not, to consider whether there are adequate alternatives to imprisonment (id. at 672-673). The sentencing court did not make a ruling on defendant's claim of inability to pay. Unlike the situation in People v Vasquez (74 AD3d 462 [1st Dept 2010]), it is unclear on the present record whether defendant's failure to pay was willful, and whether there exists an adequate alternative to imprisonment.
At this stage of the appeal, we do not address defendant's
remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2018
CLERK