People on Information of LaBounty v. County Excavation, Inc.

• Decision Date: 04 February 1974
• Citation: 351 N.Y.S.2d 931,77 Misc.2d 358
• Parties: THE PEOPLE of the State of New York, on the Information of John LaBOUNTY, v. COUNTY EXCAVATION, INC., and John F. Hoffman, Defendants.
• Court: New York Justice Court

Page 931

351 N.Y.S.2d 931

77 Misc.2d 358

THE PEOPLE of the State of New York, on the Information of John LaBOUNTY, v. COUNTY EXCAVATION, INC., and John F. Hoffman, Defendants.

Justice Court, Town of Colonie, Albany County.

Feb. 4, 1974.

Louis J. Lefkowitz, Atty. Gen., Robert C. Glennon, Asst. Atty. Gen., for the State of New York.

Tabner, Carlson, Justice, Daffner & Farrell, Albany (John W. Tabner, Albany, of counsel), for defendants.

FRANK A. TATE, Jr., Town Justice.

This is a motion by the defendants to dismiss an Information on the ground that the prosecution is untimely.

Both the corporate and the individual defendant are charged in the five count Information with violations of specified provisions of the industrial code for the protection of the Labor Law, a first offense for such violations are punishable by a fine of not more than one hundred dollars or by imprisonment for not more than fifteen days or both; for a second offense by a fine of not less than one hundred nor more than five hundred dollars or by imprisonment for not more than thirty days or both; and for a subsequent offense by a fine of not less than three hundred dollars, or by imprisonment.

For the individual defendant it is a first offense. The corporate defendant, however, pleaded guilty to a previous charge of an industrial code violation and it appears that the corporate defendant does not dispute the assertion by the Attorney General that it is a second offender.

The alleged commission of the offenses occurred on November 18, 1971 and the prosecution was instituted by the filing of a summons directing the defendants to appear before the Court on October 17, 1973.

Defendants contend that although the offenses with which they are charged are denominated misdemeanors in Section 213 of the Labor Law, they are in fact merely violations by virtue of Section 55.10 (subd. 3) of the Penal Law. If the offenses are violations, then the one year statute of limitations would have run and the prosecution would be untimely (Criminal Procedure Law, Section 30.10).

Section 55.10 (subd. 3) of the Penal Law provides that an offense defined outside the Penal Law: 'which is not expressly designated a violation shall be deemed a violation if: (a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine'.

Insofar as the individual defendant is concerned, since he is a first offender and the sentence provided in Section 213 is not in excess of fifteen days, this defendant is charged with a violation and not a misdemeanor (see People v. L. A. Witherill Inc., 29 N.Y.2d 446, 328 N.Y.S.2d 668, 278 N.E.2d 905; People v. Star Supermarkets, 67 Misc.2d 483, 324 N.Y.S.2d 514, affd., 40...