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Concord developer Guay pays $10,000 restitution after defaulting on fines for environmental violations

Kevin Guay poses on the second floor of the home he is building over-looking Penacook Lake in Concord. He's holding paper work from city hall.

(Concord Monitor photo/Ken Williams)

Kevin Guay poses on the second floor of the home he is building over-looking Penacook Lake in Concord. He's holding paper work from city hall. (Concord Monitor photo/Ken Williams)

The Concord developer convicted of illegally burying mattresses, appliances and piles of other junk at two of his properties paid the state $10,000 in restitution yesterday after prosecutors asked a judge to keep him incarcerated for an extra two years for not paying the fines.

Kevin Guay still owes $11,153.77 after yesterday’s payment – which was due to the Department of Corrections by 4 p.m. – and has been ordered to whittle down the debt in $400-per-month installments. Under the terms of an agreement reached yesterday in Merrimack County Superior Court, those payments will be due by 10 a.m. on the first Tuesday of each month starting in September, and if Guay misses a payment he will be required to appear in court for a hearing at 1:30 p.m. that same day.

Senior Assistant Attorney General Lauren Noether, who has previously described Guay as a self-centered and remorseless environmental offender, said yesterday that the terms put him “on a very tight rope.”

“I think his behavior shows he needs that kind of stringent conditions,” she said.

Guay was charged in 2009 and convicted the following year of three misdemeanors, two for unlawful operation of a solid waste facility and one for unlawful maintenance of a septic system, after the Concord police said he buried solid waste on his properties at 30 Villanova Drive and 180 Clinton St. The police said Guay also pumped untreated brown water, later found to contain fecal matter, from the Clinton Street residence onto the surrounding property.

Following the trial, Guay was sentenced to serve one year in the county jail with a second year deferred and a third year suspended. A judge ordered that he pay $14,473 in restitution to the state’s Department of Environmental Services and $7,022 to the Concord police by May 16 of this year.

But Guay instead made his first payment – of just $200 – on that day, according to court documents. Before making yesterday’s lump-sum payment, he had written two more checks for a total of $600.

In late May, after Guay had failed to meet the court’s deadlines, Noether filed a motion asking a judge to impose both the deferred and suspended one-year sentences. She noted that Guay was supposed to file a motion in the court explaining why that deferred sentence shouldn’t be imposed, which he never did.

In his objection, which he filed pro se, Guay said he expected his lawyer to file that motion. And he explained that he hadn’t paid his restitution because he believed his sentences were put on hold pending his appeal to the New Hampshire Supreme Court.

“There was some question over the last two years whether he had to make those payments,” said attorney Ted Barnes, who Guay hired to represent him a few weeks ago. “There was at the very least a misunderstanding of what his obligations were while that appeal was pending.”

In his motion, Guay said he immediately set up monthly restitution payments after his Supreme Court appeal was denied in April and made his first the following month.

In her motion, though, Noether said Guay’s restitution order was not modified when he appealed his case to the state Supreme Court. Because an agreement was reached yesterday, a judge ultimately didn’t have to decide whether Guay was supposed to make the payments while his appeal was pending.

“Essentially the clock restarts now on his obligations in the light of the payments and the set agreement as to the monthly amount,” Barnes said.

Under the agreement, Guay’s one-year deferred sentence will be put off another year, after which he will again have to file a motion in the court explaining why the term should be suspended. If Guay breaks any of the current conditions, prosecutors will be allowed to impose that sentence without even taking Guay to court for a hearing, according to the agreement.

If Guay honors all of the outstanding conditions, the deferred sentence would likely be suspended pending seven years of good behavior. A third year of the sentence will be hanging over Guay pending 10 years of good behavior, according to the agreement.

Guay served about five months of his 12-month sentence before being released pending his Supreme Court appeal, court documents show. After his appeal was denied, Guay resumed serving that sentence May 9. With time for good behavior, Guay could be released from jail by the end of the summer, Barnes said.

Barnes said that despite his incarceration, Guay was able make the $10,000 payment yesterday and will not have trouble meeting his monthly $400 obligation.

“In terms of how he’s making the payments now, the guy’s never been in trouble,” Barnes said. “So he’s got a lot of friends and family and supporters who were able to scrape together the amount.”

(Tricia L. Nadolny can be reached at 369-3306 or
tnadolny@cmonitor.com or on Twitter @tricia_nadolny.)

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