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For most criminal defendants facing up to five years in jail, the state has to prove they intended to commit an illegal act. But in Barrie Wilson’s case, all the prosecution proved was that his short-lived business was a colossal failure, leaving Wilson with no money to meet his $90,000 payroll. Under Connecticut’s failure-to-pay-wages statute, intent doesn’t matter, the state Appellate Court ruled in a May 18 decision denying Wilson’s appeal of his April 2002 conviction. The state doesn’t even have to prove criminal negligence, it held. A jury found Wilson guilty of eight counts of failure to pay wages. But even the trial court acknowledged the defendant gained nothing personally from his unsuccessful venture, in which he sought to hire 100 unemployed workers in the Hartford, Conn., area for his flooring-installation company. Judge Stanley T. Fuger Jr. sentenced Wilson to six months on each of the eight counts, with the sentences to run consecutively. The sentence was suspended on three years’ probation and restitution of $13,200 to be divided among the eight complainants. “I would suspect that [Connecticut's] failure to pay wages statute is designed primarily to deal with the individual who takes advantage of the labor of another,” Fuger told Wilson. But “I don’t see where any monetary benefit came to you. Had you been a success, you wouldn’t be standing in a court of law. You would be written up in the [newspaper] Business section. Or the Chamber of Commerce would be giving you an award for … the removing of people from poverty.” Wilson, founder of A Plus Flooring, argued the state failed to prove he intended to commit a crime. He had opened the business in 2000, relying on a contract with New York Carpet World to handle installation jobs from all 25 of its Connecticut stores. Wilson sought 100 employees from Hartford-area community groups by offering training to those who needed work. After two weeks of training, his first contract fell through and he didn’t have the money to meet payroll. By the following week, his nascent business collapsed. Criminal charges were brought against Wilson, after former employees complained to the state Department of Labor. REASONABLE RISK? The state’s failure-to-pay-wages statute, which, in 1993, was raised to a felony carrying a maximum five-year sentence, is a strict liability crime — it doesn’t require criminal intent as an element of guilt. Naugatuck attorney David V. DeRosa argued Wilson’s appeal before the Appellate Court. He maintained that any felony should require some degree of mens rea — if not intent, then at least criminal negligence. That would require the state, at a minimum, to show Wilson failed to perceive a substantial or unjustified risk that such payroll problems could occur and that failing to recognize that risk was a gross deviation from what a reasonable person would expect in the same situation, DeRosa said. Without such a requirement, he argued, the statute was unconstitutionally vague and provides no defense for someone charged with failure to pay wages. In an interview, DeRosa warned that the Appellate Court decision could have absurd consequences. Hypothetically, if an employer had an armored car deliver cash each week so it could pay its employees, the employer could be held criminally responsible if employees didn’t get paid because the armored car was robbed; Under the appeals court’s interpretation of the statute, the only issue would be whether or not the employees got paid, DeRosa said. “The CEO of General Electric is never going to be charged under this statute,” he added. “It will always be the mom-and-pop business [that] gets caught up in it.” Assistant State’s Attorney Eileen F. McCarthy, who argued the appeal, said that’s why the state Department of Labor holds a show-cause hearing before referring such matters to prosecutors. The forum gives employers the opportunity to explain extenuating circumstances, McCarthy said. Wilson never attended his hearing. In the appeals court’s three-page decision, Appellate Court Chief Judge William J. Lavery said Wilson failed to persuade the court to depart from “our precedent that was established in State v. Merdinger (1995) and State v. Nanowski (1993).” Those cases address the constitutionality of the statute as strict liability. In Merdinger, the Appellate Court ruled that no proof of specific intent needs to be found under the statute for it to pass constitutional muster. In Nanowski, the court held that the law’s change to a felony didn’t require the addition of specific intent. That, said DeRosa, is why he argued for the prosecution to be held to at least the lesser standard of criminal negligence. He vowed to file a petition for certiorari to the state Supreme Court.

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