The opinion of the court was delivered by: MOTLEY
Memorandum Opinion and Order Revoking Probation
Defendant, Tyrone D. Wilson, pleaded guilty on November 19, 1970 to one count of a two-count indictment charging him with mail embezzlement on October 2, 1970 while a postal employee. 18 U.S.C. § 1709. The indictment had been filed on November 17, 1970. He was sentenced on January 6, 1971 to a term of 18 months. Execution of sentence was suspended and defendant placed on probation for a period of 18 months, subject to the standing conditions of probation.
One of the standing conditions of probation advises the probationer as follows: "You shall work regularly at a lawful occupation and support your legal dependents, if any, to the best of your ability."
A special condition of probation was also imposed, however, in addition to the standing conditions. Defendant was ordered to "pay all alimony assessments due and make currect payments during the probation period."
As of December 9, 1970, defendant's court-ordered support payments for his two children living with their mother in the Virgin Islands were $1,c000 in arrears.
(Presentence Report, pp. 3-4). The Presentence Report reads as follows:
"As of 11/7/66, defendant was ordered to pay $20 weekly, but he did not make regular payments. He was continually in arrears on his payments and was brought into Court on other occasions, and ordered to pay various amounts, including something on the arrears." (p. 3.)
As a result of the instant offense, defendant lost his job in the Post Office where, as a postal employee, he earned $4.28 per hour (Presentence Report, p. 5). He had been working in the Post Office, however, only since December 30, 1968. Before that, as a clerk in a book store, he earned $85.80 per week. (Presentence Report, p. 5.) It was November 7, 1966 when defendant was ordered by the Bronx Family Court to pay to his wife that he had left with two children in the Virgin Islands $20 per week for the support of the children.
At the time of sentence, defendant's Legal Aid Society counsel addressed the court on behalf of the defendant as follows:
Mr. Curley: Your Honor, I spoke to Mr. Wilson and he has informed me that he has obtained employment with Lord & Taylor, and when I spoke with him the last time he had been there a few weeks working in the shipping department. He tells me he is still with that company. He has used funds that he received from the job to support himself and some people who are near and dear to him. (Tr., Jan. 6, 1971, p. 2.)
The court construed this statement as a request to put defendant on probation on condition that he remain gainfully employed and support his family.
The court, consequently, addressed the defendant as follows:
The Court: Mr. Wilson, are you working at the present time?
The Court: How long have you been working?
The Defendant: Since 11-10.
Mr. Curley: November 10th.
The Court: How much do you make a week?
The Defendant: I've just been raised to $100 a week.
The Defendant: I've had a raise this week. I was raised to $100 a week. I was working as a temp during the Christmas season and now I've been working ...