People v. Walsh

Decision Date02 April 1984
Citation476 N.Y.S.2d 408,123 Misc.2d 1042
CourtNew York Supreme Court
PartiesPEOPLE of the State of New York v. Robert WALSH & Geraldine Walsh, Defendants.

Barone, Passarello & LaRosa, Brooklyn (Richard A. LaRosa, Brooklyn, of counsel), for defendants.

Robert Abrams, Atty. Gen. (Rhonda Lustman, Asst. Atty. Gen., of counsel), for plaintiff.

OPINION OF THE COURT

NORMAN J. FELIG, Justice.

The defendants move "for an order granting reargument and reconsideration of that part of defendants (sic) Omnibus Motion requesting an order of the Court to dismiss said indictments pursuant to § 210.20(1)(a) of the Criminal Procedure Law upon the ground that the indictments or counts thereof are defective within the meaning of § 210.25 of the Criminal Procedure Law and pursuant to § 210.20(1)(h) of the Criminal Procedure Law upon the ground that there exists a jurisdictional and/or legal impediment to conviction of the defendants for the offenses charged, and for an order of this Court dismissing said indictments for the grounds previously stated and for such other and further relief as to this Court may seem just and proper." The defendants also request that their guilty plea be vacated.

CHRONOLOGY

On January 27, 1983, the defendants, who were the owners and operators of two gas stations located in the Borough of Staten Island, were indicted, under indictment number 22/1983, for grand larceny in the second degree ( § 155.35 P.L.) (one count) and offering a false instrument for filing in the first degree ( § 175.35 P.L.) (thirteen On April 19, 1983, the defendants, as part of an omnibus motion, moved, inter alia, to dismiss both indictments on the ground that there existed a jurisdictional or legal impediment to their conviction for the offenses charged ( § 210.20(1)(h)CPL). By order, dated May 11, 1983, this court denied the motion. Indictment number 23/1983 was thereafter merged into indictment number 22/1983 on June 28, 1983. On September 19, 1983, the defendant, Robert Walsh, pleaded guilty to the crime of offering a false instrument for filing in the first degree ( § 175.35 P.L.), an "E" felony, under count nine of consolidated indictment 22/1983; the defendant, Geraldine Walsh, pleaded guilty to an attempt to offer a false instrument for filing in the first degree ( §§ 110.00/175.35 P.L.) as an "A" misdemeanor, also under count nine of the same consolidated indictment. As part of the plea bargain, the defendants were to receive a sentence of probation and a fine provided there was full restitution. The parties have not been able to agree on the amount of the restitution. The defendants are awaiting sentence.

counts). Simultaneously, they were indicted, under indictment number 23/1983, for grand larceny in the second degree ( § 155.35 P.L.) (one count) and offering a false instrument for filing in the first degree ( § 175.35 P.L.) (eight counts). The grand larceny charges stem from the fact that the defendants failed to pay to the State of New York sales taxes they collected in connection with the operations of both service stations. The charges of offering a false instrument for filing stems from the fact that they allegedly filed New York State and Local Sales and Use Tax returns which were wilfully false.

On December 1, 1983, the Court of Appeals decided People v. Valenza, 60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748, which held that the failure to pay over sales tax to the State after having collected those funds may not be prosecuted as a larceny under the Penal Law. The defendants then brought the instant motion.

CONTENTIONS

The defendants challenge the validity of the indictment charging them with the felonies of grand larceny in the second degree ( § 155.35 P.L.) and offering a false instrument for filing in the first degree ( § 175.35 P.L.). Briefly summarized, the argument is made that the indictments are fatally defective and must be dismissed. The defendants state that the grand larceny count must be dismissed by virtue of the Valenza holding. They claim that the counts charging offering a false instrument for filing in the first degree must also be dismissed because the underlying conduct allegedly attributed to the defendants is proscribed by the Tax Law and any punishment imposed for a violation of its provisions must be pursuant to the Tax Law. They argue that in Valenza, the Court, although not addressing itself to this offense, mandated that any sales tax violations be prosecuted only under the Tax Law which contains its own scheme of civil and criminal penalties. Since the charges of offering a false instrument for filing in the first degree are defined in the Penal Law, not the Tax Law, the remaining counts in the indictment must be dismissed. In addition, the defendants claim that the "instrument" contemplated by § 175.35 P.L. refers to a public document and/or record consisting of a formal or legal document that evidences legal rights and duties of one party to the other. They contend that a New York State and Local Sales and Use Tax Return (Form ST-100) is not a public document or record because it is merely a report of sales tax collected during a particular period. Since its filing does not require the State to take any action it does not constitute an "instrument" within the meaning of that section.

The State concedes that as a result of Valenza, the defendants may not be prosecuted for larceny upon their alleged failure to pay over sales taxes collected by them. However, the State contends that Valenza does not proscribe all prosecutions under the Penal Law involving sales tax violations and therefore, does not prevent

                the State from charging the defendants under the Penal Law with offering a false instrument for filing, as a felony, providing they can establish that fraudulent sales tax returns were filed.  In this connection, they argue that since the actions of the defendants constitute criminal conduct, they may be prosecuted under the Tax Law as well as any other applicable criminal statute.  The State claims that Valenza has no bearing upon their guilty pleas to the crime of offering a false instrument for filing, because Valenza affects only the larceny count.  Finally, defendants, by their plea of guilty, "waived all non-jurisdictional defects including any alleged insufficiency of evidence presented to the grand jury which indicted him (sic)."   In addition to these substantive issues, the State raises, as a threshold issue, that the defendants' motion must be denied because they have not made "any request to allow them to withdraw their plea nor set forth any grounds on which the court should exercise its discretion to do so."
                
ISSUES

The following issues have been raised which the court will discuss seriatim;

A. Should defendants be granted leave to reargue?

B. Does a sales tax return constitute an "instrument" within the meaning of § 175.35 P.L.?

C. Is the Tax Law the exclusive statute for determining sales tax violations proscribing prosecution under the Penal Law, as a felony?

D. (1) Are the indictments jurisdictionally defective? And, if so,

(2) Did the defendants waive the jurisdictional defect by pleading guilty?

APPLICABLE STATUTES

Tax Law § 1145--Penalties and Interest.

"(a)(1)(i) Any person failing to file a return or to pay or pay over any tax to the tax commission ... shall be subject to a penalty of five percent of the amount of tax due ...."

"(b) Any person ... filing or causing to be filed, or making or causing to be made, or giving or causing to be given any return, report ... which is wilfully false, ... shall, in addition to any other penalties herein or elsewhere prescribed, be guilty of a misdemeanor, punishment for which shall be a fine of not more than one thousand dollars or imprisonment for not more than one year, or both such fine and imprisonment ...."

Penal Law § 175.35--Offering a False Instrument for Filing in the First Degree.

"A person is guilty of offering a false instrument for filing in the first degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state ... he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with ... or otherwise become part of the records of such public office or public servant.

Offering a false instrument for filing in the first degree is a class E felony."

CONCLUSIONS OF LAW
A. Should defendants be granted leave to reargue?

The defendants request this court to extend the holding of Valenza to this indictment. When the defendants originally moved, by omnibus motion, to dismiss the indictment, (April 19, 1983), the state of the law was such that a grand larceny indictment would lie against defendants for their alleged failure to remit sales taxes collected by them for the State (People v. Valenza, 108 Misc.2d 86, 436 N.Y.S.2d 937 (February, 1981); aff'd. 90 A.D.2d 466, 454 N.Y.S.2d 1018 (October, 1982); People v. Lyon, 82 A.D.2d 516, 442 N.Y.S.2d 538 (August, 1981)). As a result, this court was constrained to deny the motion. The Court of Appeals decided People v. Valenza, supra (December, 1983) after these defendants pleaded guilty (September 19, 1983) and were awaiting sentence. The court is of the opinion that in light of Valenza, valid issues are now presented concerning the validity of the instant indictment which should be addressed. In the interest of justice and good cause having been shown, the court, in its discretion, grants reargument.

B. Does a sales tax return constitute an "instrument" within the meaning of § 175.35 P.L.?

At the threshold the court should determine whether a sales tax return is the type of document or instrument, the false filing of which, would give rise to a charge of offering a false instrument for filing in the first degree as provided in § 175.35 P.L. For if a sales tax return is not the type of "instru...

To continue reading

Request your trial
1 cases
  • People v. Walsh
    • United States
    • New York Supreme Court Appellate Division
    • June 3, 1985
    ...60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748, which was decided after the entry of defendants' guilty pleas (People v. Walsh, 123 Misc.2d 1042, 476 N.Y.S.2d 408, supra ). In addition, Criminal Term dismissed the other counts of the indictments, essentially on the ground that the Tax Law ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT