People v. Doundoulakis

• Decision Date: 28 March 1963
• Citation: 38 Misc.2d 984,239 N.Y.S.2d 452
• Parties: The PEOPLE of the State of New York v. George DOUNDOULAKIS, Defendant.
• Court: New York City Court

Page 452

239 N.Y.S.2d 452

38 Misc.2d 984

The PEOPLE of the State of New York v. George DOUNDOULAKIS, Defendant.

Criminal Court of the City of New York, New York County, Part 2B.

March 28, 1963.

Frank S. Hogan, Dist. Atty., New York City, by Frank Connelly, Asst. Dist. Atty., of counsel, for the People.

Elson & Halperin, New York City, attorneys for defendant, by Harold A. Halperin, New York City, of counsel, for defendant.

Before QUINN, P. J., and COMERFORD and BLOOM, JJ.

MAX BLOOM, Justice.

Defendant is charged, in three separate informations, with violating Section 962-a of the Penal Law. That section provides that 'any employer who is party to an agreement to pay or provide benefits, or wage supplements as defined in section two hundred twenty of the labor law, and who fails, neglects or refuses to pay the amount or amounts necessary to provide such benefits or furnish such supplements within thirty days after such payments are required to be made' shall be guilty of a misdemeanor. It further provides that 'Where such employer is a corporation, the president, secretary, treasurer or officers exercising corresponding functions shall each be guilty of a misdemeanor.'

One information (Docket No. 2134), charges that Advancement Devices, Inc., a corporation of which defendant was President, failed to pay to the Annuity Fund of the Joint Industrial Board of the Electrical Industry the sum of $704 due to that fund on work performed by one Jack Schwartz, an employee of Advancement. Another (Docket No. 2135) charges that the corporation failed to pay to Leo Smith, another employee of Advancement, the sum of $90 due him in vacation pay. The third information (Docket No. 2136), charges that the corporation failed to pay to the Employees Retirement Fund of the Electrical Manufacturing Industry the sum of $889.56 due to that Fund. In each instance it is alleged that such sums have been due and owing for more than 30 days.

The record, composed in the main of a stipulation entered into by the District Attorney, supplemented by oral and documentary evidence, is not wholly satisfactory. Be that as it may, it discloses that Advancement Devices, Inc., a corporation engaged in the manufacture of electronic equipment, was organized in or about August, 1960. In October or November of that year Advancement merged with Cold Cathode Corp., a corporation engaged in the manufacture of fluorescent equipment. Initially, the merged corporation was known as Cold Cathode Corp. Subsequently, it changed its name to Advancement Devices, Inc.

At all times pertinent to the issues herein raised the merged corporation was in collective bargaining relationship with Local 3 of the International Brotherhood of Electrical Workers. Since Local 3 required separate collective agreements for the electronics and fluorescent industries, the two branches of the business were treated, in their relationship with Local 3, as though they remained separate entities. Under the collective agreement covering the fluorescent phase of the business, Advancement was required to pay to the Annuity Fund of the Joint Industrial Board of the Electrical Industry the sum of $4 for each day worked by each employee within the unit of representation. The purpose of the Annuity Fund was to provide annuities for workers entitled thereto. Rights of eligible workers were vested. Under the collective agreement covering the electronics phase of Advancement's business, Advancement was required to pay to the Employees Retirement Fund of the Electrical Manufacturing Industry a sum equal to 5% of the gross payrolls of all employees within the unit. The Retirement Fund is a pooled fund which provides specified benefits to workers covered thereby who are eligible therefor. The collective agreement covering the electronics industry also mandated that vacation payments be made to employees within the unit in accordance with a prescribed schedule.

In September, 1961, defendant became President of Advancement. He remained in that capacity until June 30, 1962, when he was superseded by one Pinkerton. Thereafter, defendant continued to serve the corporation in the capacity of Vice-President in charge of Engineering and Manufacturing.

On June 18, 1962, defendant had brought to his attention, somewhat forcefully, the fact that Advancement was in arrears in payment of its obligations to the Annuity Fund, for after a conversation with respect thereto between defendant and George Schuck, a representative of the Joint Board of the Electrical Industry, Local 3 declared a stoppage at Advancement's plant. The following day, as the result of a further conference had by defendant with Schuck, Advancement agreed in writing to amortize its indebtedness to the Annuity Fund at the rate of $700 per month. No similar agreement was ever made with the Retirement Fund.

The payment of $700 required to be made to the Annuity Fund in June was made. However, on July 1, 1962, defendant was superseded as President of Advancement by Pinkerton and defendant became Vice-President in charge of Engineering and Manufacturing. Pinkerton instructed the other officers of Advancement that they were not to deal with Local 3 and that he would appoint a representative to deal with it. No such appointment was made.

Advancement defaulted in making the $700 payments to the Annuity Fund in both July and August. On September 19, 1962, the corporation assigned for the benefit of creditors. Presumptively, it thereafter discontinued its operations. In any event, no further payments were made to either of the Funds. It is conceded that some portion of the monies due to each of the Funds had been owing for at least 30 days prior to June 30, 1962.

At the threshold, defendant attacks the constitutional validity of the statute on the ground that it is too imprecise and indefinite to admit of criminal sanctions. Lurking in the background, and raised only obliquely by the defendant is a further constitutional problem. Article 3, Section 16, of the State Constitution, in defining, in part, the power of the Legislature, mandates that 'No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.' Inasmuch as Section 962-a incorporates by reference the definition of 'wage supplements' set forth in Section 220, subd. 5(b) of the Labor Law, a possible violation of the Constitution is posed.

It is axiomatic that "Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited' and that 'They must afford some comprehensible guide, rule, or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements" (People v. Caswell-Massey Co., 6 N.Y.2d 497, 501, 190 N.Y.S.2d 649, 652, 160 N.E.2d 895, 898; People v. Grogan, 260 N.Y. 138, 145, 183 N.E. 273, 275, 86 A.L.R. 1266). 'Words which are vague and fluid, cf. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, may be as much a trap for the innocent as the ancient laws of Caligula' (United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200; see also, People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682). Since statutes penal in nature must be strictly construed, the purpose of the requirement of definitness is to exclude application of the statute to situations which are not within its specific embrace (People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568; People v. Benc, 288 N.Y. 318, 43 N.E.2d 61). Conversely, where a statute gives reasonable notice of what it requires done and what...