People v. Barbuto
| Decision Date | 18 December 1980 |
| Citation | 106 Misc.2d 542,434 N.Y.S.2d 120 |
| Parties | The PEOPLE of the State of New York v. Brian BARBUTO, Defendant. |
| Court | New York Supreme Court |
Patrick Henry, Dist. Atty., Suffolk County by Rita Adler, Asst. Dist. Atty., Hauppauge, for the People.
John F. Middlemiss, Jr., Legal Aid Society, Hauppauge by John N. Lardner, Hauppauge, for defendant.
The defendant is charged with Grand Larceny in the Third Degree, a Class E Felony (P.L. 155.30) and Issuing a Bad Check, a Class B Misdemeanor (P.L. 190.05). The case was tried before the court without a jury on a stipulated statement of facts which left for resolution the impact of sales tax on value in determining whether the defendant is guilty of the felony, Grand Larceny in the Third Degree, as charged, or the lesser included offense of Petit Larceny, a Class A Misdemeanor (P.L. 155.25).
To the defendant this is a significant difference since he is a predicate felon and conviction for Grand Larceny in the Third Degree mandates a minimum sentence of one and a half to three years (P.L. 70.06) whereas a misdemeanor conviction limits the maximum sentence to one year (P.L. 70.15).
On August 13, 1980 the defendant purchased a Sony T.V. from the owner of a retail store for the negotiated price of $245. In payment defendant issued his check in the amount of $262.15 reflecting the purchase price plus sales tax of $17.15. The check was drawn on an account which had been closed and without funds since May 10, 1978, a fact then known to the defendant and the defendant left the store with the T.V. set and thereafter the owner was advised that the check had been dishonored when presented for payment.
The People have established beyond a reasonable doubt that the defendant committed a larceny by issuing a bad check in order to unlawfully take and withhold property, the T.V. set, with intent to deprive the owner of same and to appropriate it to himself.
Since Grand Larceny in the Third Degree requires proof of value in excess of $250, the issue is whether the Sony television stolen by the defendant on August 13, 1980 had a market value of $245, its pre-tax selling price, or whether the market value was $262.15, to wit, the selling price of the television plus some $17.15 of state and local sales taxes.
Did the imposition of the sales tax at the time of the purchase increase value of the T.V. set.
In relevant part Section 155.20 of the Penal Law provides that "value means the market value of the property at the time and place of the crime."
The court initially notes that the Sales and Use Tax provisions of Article 28 of the Tax Law with respect to the administration and collection of such taxes has been incorporated by reference in Resolution # 745-1968 of the Board of Supervisors of the County of Suffolk imposing taxes on sales and uses of tangible personal property .
Section 1132, subd. a, of the Tax Law provides that ...
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...above the value of the purchased property. Cf. People v. Medjdoubi, 173 Misc.2d 259, 661 N.Y.S.2d 502 (1997); People v. Barbuto, 106 Misc.2d 542, 434 N.Y.S.2d 120 (Sup.Ct. 1980); People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69 (1959); State v. Alexander, 12 Kan.App.2d 1, 7......
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...People. RICHARD J. GOLDMAN, Justice. Can a jury consider sales tax in determining the market value of stolen property? People v. Barbuto, 106 Misc.2d 542, 434 N.Y.S.2d 120 said "No." This court It is alleged that defendant and another, on or about February 24, 1986, stole a television from ......
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...price, exclusive of any levied sales taxes. See People v. Medjdoubi, 173 Misc.2d 259, 661 N.Y.S.2d 502 (1997); People v. Barbuto, 106 Misc.2d 542, 434 N.Y.S.2d 120 (1980); but see People v. Bazo, 139 Misc.2d 1003, 529 N.Y.S.2d 432 (1988) (concluding that the market value of a stolen item wa......
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