McKinney v. Hamilton

We are to determine whether an alleged violation of sections 195 and 196 of the Labor Law (Cons. Laws, ch. 31) and section 1272 of the Penal Law, which require employers of certain types of labor to pay in cash

The petitioner-respondent McKinney was arrested and arraigned before the defendant-appellant Hamilton and pleaded not guilty to an information which charged a violation of section 196 of the Labor Law and section 1272 of the Penal Law in that he and Troy Trap Rock Corporation, of which he is an officer, failed to pay in cash the weekly wages due to nine of its employees who are named herein as defendants. Further proceedings in the prosecution were restrained by Special Term, which granted an order — formerly termed a prohibition order — under article 78 of the Civil Practice Act, upon allegations by the petitioner that the charge preferred against him before the appellant, a justice of the peace, is not a misdemeanor but a felony, and, accordingly, that the appellant, sitting as a Court of Special Sessions, is without jurisdiction to act in the matter.

The petitioner has thus far successfully maintained that, although the statute itself denominates a violation of section 1272 of the Penal Law as a misdemeanor, the punishment prescribed therein is of a character applicable to a felony. Accordingly, it is said, the appellant, as a Court of Special Sessions, with jurisdiction limited to the trial of “ offenses of the grade of misdemeanors ” (N. Y. Const. art. 6, § 18), is without authority to try the petitioner.

Section 1272 of the Penal Law provides in part: “ Each person, copartnership, corporation or joint-stock association carrying on a business by lease or otherwise, who does not pay the wages of all his or its employees in accordance with the provisions of the labor law is guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than one hundred nor more than ten thousand dollars for each offense.”

To reach the conclusion that the section deals with an offense which in ultimate legal effect is a felony, the respondent points to sections 484 and 718 of the Code of Criminal

The fallacy which we find in the argument is that, in testing the quality or classification of a crime, and after properly employing the punishment prescribed as the characterizing factor, the respondent mistakenly treats the imposition of a fine as being in the same category as a sentence of imprisonment.

A felony is a crime punishable by death or imprisonment in a State prison. Any other crime is a misdemeanor. (Penal Law, § 2.) When the sentence is for less than a year the imprisonment must be in a local prison; if for more than a year the imprisonment must be in a State prison and in either when the sentence is exactly one year. In no event may imprisonment in a State prison be reduced below one year except in cases where executive clemency is exercised. (Penal Law, §§ 2181-2183.)

The punishment provided by section 1272 of the Penal Law is a fine — not imprisonment in a State prison. The offense does not become a felony merely because by applying section 718 of the Code of Criminal Procedure a defendant may be imprisoned one day for every dollar of the fine unpaid until the fine be satisfied. The commitment authorized by section 718 for failure to pay a fine does not increase the penalty specified in the criminal statutes to which

Prior to the ruling last quoted, Mr. Justice Cullen, later Chief Judge of this court, writing in People ex rel. Gately v. Sage ( 13 App. Div. 135 ), had stated (p. 136): “ The provision that the term of imprisonment shall not exceed five years applies only to the term of absolute imprisonment which the defendant must necessarily undergo, and not to imprisonment to which he is subjected as a means to compel him to pay the fine. It has always been the practice to enforce the payment of a fine, when imposed as a punishment for crime, by a direction that the defendant stand committed until the fine be paid.” The opinion also gives in outline the historical background for the rule which was well established in the law of England. (The King v. Woolf, Chitty’s Cases on Practice and Pleading, vol. 1, pp. 401, 441-443. See, also, Report of Commissioners of Practice and Pleading, Draft of Code of Criminal Procedure, 1850, p. 260, § 549.)

In reaching a conclusion opposed to the respondent’s claim we are influenced by the fact that if a defendant refuses to pay a fine imposed as punishment- — which is the only form of punishment provided by the statute with which we are now concerned — and he is committed under section 718 of the Code of Criminal Procedure, he is not required to stand committed for a definite term in prison. The duration of his confinement is within his own control. By payment of the fine imposed he is at once set free.

We have not overlooked the rule of People ex rel. Cosgriff v. Craig ( 195 N. Y. 190 ), upon which Special Term relied.

The conclusion we have reached makes unnecessary our consideration of appellant’s point that prohibition was not the proper remedy available to the respondent.

The order of the Appellate Division should be reversed, the order of Special Term vacated, without costs, and the petitioner-respondent directed to stand trial before the Court of Special Sessions.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Ordered accordingly.