Opinion
Argued October 12, 1981
Decided November 17, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MELVYN TANENBAUM, J.
James H. Miller, III, and John F. Middlemiss, Jr., for appellant. Patrick Henry, District Attorney (Maureen S. Hoerger of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The Appellate Division affirmed an order of the Suffolk County Court sentencing defendant to four months' imprisonment for failure to pay her $16,000 fine. The County Court found, and the Appellate Division affirmed, that defendant had defrauded the welfare system of more than $8,000 and that she has an equity in her home and a separate vacant lot of $35,797.
The fine imposed was authorized by subdivision 5 of section 80.05 of the Penal Law and, in view of defendant's equity in the property and the fact that a substantial part of the proceeds of the fraud were invested in the property, was not illegal. There is no constitutional infirmity in defendant's imprisonment for failure to pay the fine, for her equity in the property establishes that she has the means to pay it though she has so far refused to do so (Tate v Short, 401 U.S. 395, 400-401). For like reason CPL 420.10 (subd 4) does not entitle defendant to adjustment, reduction or revocation of the fine which she has the ability to pay. Nor does the homestead exemption of CPLR 5206 provide her any protection, for it exempts only from the satisfaction of a money judgment and has no application to a fine imposed by a criminal court.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.