Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Larry R.C. Stephen, J.), rendered April 12, 2010, after a nonjury trial, convicting him of two counts of failing to pay the minimum wage in violation of Labor Law § 652(1), and imposing sentence.

Per Curiam.

Judgment (Larry R.C. Stephen, J.), rendered April 12, 2010, modified, on the law and the facts, by reducing the restitution to the amount of $1,658.87, with a 5% surcharge of $83, and, as modified, affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Issues of credibility, including those arising from any inconsistencies in testimony, were properly considered by the court and there is no basis for disturbing its determinations. The credible evidence established that defendant failed to pay the statutory minimum wage to complainant during the relevant time periods (see Labor Law §§ 652[1], 662[1]).

As the People correctly concede, however, the court erred in ordering restitution in an amount in excess of $1,658.87, the sum shown to constitute the complainant's "actual out-of-pocket loss caused" by the offense (see Penal Law § 60.27[1]; People v Nelson, 38 AD3d 472, 473 [2007], lv denied 9 NY3d 879 [2007]) and in imposing a surcharge of more than 5% on the amount of restitution ordered (see Penal Law § 60.27[8]; People v Peck, 96 AD3d 1468, 1469 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013