People v. Cohen

• Decision Date: 07 May 1981
• Citation: 421 N.E.2d 813,52 N.Y.2d 584,439 N.Y.S.2d 321
• Parties: , 421 N.E.2d 813 The PEOPLE of the State of New York, Respondent, v. Jerry COHEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 321

439 N.Y.S.2d 321

52 N.Y.2d 584, 421 N.E.2d 813

The PEOPLE of the State of New York, Respondent, v. Jerry COHEN, Appellant.

Court of Appeals of New York.

May 7, 1981.

J. Jeffrey Weisenfeld, New York City, for appellant.

Robert Abrams, Atty. Gen. (Edward D. Saslaw, Asst. Atty. Gen., and William F. Dowling, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

Defendant was indicted for grand larceny and for failure to file New York State and local sales and use tax returns. He pleaded guilty to the following count, typical of those charging failure to file tax returns:

"THE GRAND JURY OF THE COUNTY OF NEW YORK by this Indictment, further accuses the defendants, PLAZA HEALTH CLUBS, INC. and JERRY COHEN a/k/a JUSTIN KORN, of the crime of failure to file a New York State and Local Sales and Use Tax Return in violation of the provisions of Section 1145(b) of the Tax Law of the State of New York, committed as follows:

"On or about September 20, 1976, in the County, City and State of New York, the defendants, PLAZA HEALTH CLUBS, INC. and JERRY COHEN a/k/a JUSTIN KORN, failed to file a New York State and Local Sales and Use Tax Return (Form ST-100) covering the operation of PLAZA HEALTH CLUBS, INC. for the period June 1 1976 to August 31, 1976 inclusive." He now seeks our reversal of the order of the Appellate Division affirming his conviction, on the ground that the indictment was fatally defective for failure to allege the element of willfulness.

The present indictment fulfilled the jurisdictional requirements of an indictment by its specific allegations that the defendant failed to file a New York State tax form, and that his failure violated the terms of a specific statute designated by name and section (People v. Iannone, 45 N.Y.2d 589, 599, 412 N.Y.S.2d 110, 384 N.E.2d 656). The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon, if any, for conviction under that statute. The defendant's argument both before and since his plea that the indictment was jurisdictionally insufficient is therefore without merit.

Moreover, it is unrealistic now for the concurring opinion to splinter the analysis of the many charges in this case, which involved a multicount indictment clearly indicating that the People intended to prove willfulness, and allow a challenge to the one count to which a plea was taken on the theory that that particular count provided insufficient notice. In fact viewing the matter in its entirety there can be no reasonable assertion of a lack of notice. The technical argument defendant now seeks to raise arises only because of the narrowing of focus due to the plea to one count. ¹

It was, of course, open to defendant to move to dismiss the indictment for failure to meet the requirements of CPL 200.50 or to seek a bill of particulars of the charge on which he was indicted. Any argument, however, that the indictment in this case was deficient as failing to meet the requirements of CPL 200.50 or as failing to give more detailed notice of the offense charged than that furnished by the jurisdictionally sufficient indictment was waived by defendant's plea of guilty (cf. People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45; People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366). ²

Accordingly, the order of the Appellate Division, 73 A.D.2d 844, 423 N.Y.S.2d 357 should be affirmed.

GABRIELLI, Judge (concurring).

I concur in the majority's decision to sustain defendant's conviction. However, I am unable to adopt the analysis advanced by the majority for, in my view, it has overruled the well and firmly established principle that the failure of an indictment to charge every required element of a crime is a nonwaivable jurisdictional defect. Nonetheless, I vote to affirm the order of the Appellate Division for the simple reason that the Legislature has determined that a failure to file a required sales and use tax return is punishable as a strict liability offense.

Defendant was charged by a 10-count indictment with, among other offenses, the crime of failure to file a New York State and local sales and use tax return in violation of subdivision (b) of section 1145 of the Tax Law. In charging the defendant with this crime, the indictment simply tracked the language of the applicable statute. Defendant moved on several grounds to have the indictment dismissed, arguing inter alia that the counts of the indictment dealing with the failure to file sales tax returns must be dismissed because an allegation of willfulness was lacking. In so doing, defendant relied upon People v. Cooper, 24 N.Y.2d 877, 301 N.Y.S.2d 624, 249 N.E.2d 469, a case which interpreted a New York City statute (Administrative Code of City of New York, § N46-17.0, subd. similar to subdivision (b) of section 1145 of the Tax Law. In Cooper, the court held that the applicable provision of the New York City Administrative Code required proof of a willful failure to file tax returns in order to sustain a conviction. In the case before us, Trial Term rejected defendant's contention and denied the motion to dismiss, however, stating that even if the Cooper holding were applicable to the State statute, it would not be controlling in this instance since it dealt only with the proof required at trial and not with pleading requirements. Thereafter, the defendant pleaded guilty to failing to file a New York State and local sales tax return, and the judgment of conviction was unanimously affirmed by the Appellate Division, without opinion.

In the present appeal, defendant has attempted to renew the argument he made before Trial Term. The majority, however, has completely ignored and sidestepped the issue raised by the defendant--whether willfulness is an element of the crime established by subdivision (b) of section 1145 of the Tax Law--and, in a Per Curiam opinion devoid of analysis, has departed from precedent to overrule principles firmly embedded in our system of justice. To analyze fully the effect of the majority's holding the underpinnings of the indictment process as it has evolved in New York must be briefly examined.

The indictment process has a long-standing tradition in New York. Historically, the indictment has served multiple functions, some of which have been replaced by the use of other devices which have evolved with the criminal justice system (see People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656). Nonetheless, the fundamental and the constitutionally mandated purpose of the indictment remains "to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the State" (People v. Iannone, supra, at p. 595, 412 N.Y.S.2d 110, 384 N.E.2d 656, citing 1 Holdsworth, A History of English Law p. 321). Before a citizen may be held answerable for a crime charged by indictment, a Grand Jury must first evaluate the State's proof and conclude that there is both reasonable cause to believe that the person accused committed the crime charged and, further, that there is legally sufficient evidence to establish each and every element of that offense (CPL 190.65, subd. 1). Indeed, by handing up an indictment (or refusing to do so), the Grand Jury performs its historic function as a bulwark against unwarranted prosecutions.

The indictment itself, which is the product of a Grand Jury's deliberations, is a most meaningful legal document and is not merely a vestige of some ancient ritual. Its modern function is, in part, to serve as evidence that a panel of citizens has fulfilled the historic and statutorily mandated duties of a Grand Jury. In addition, the document also serves to provide the defendant with sufficient notice to prepare a defense. Indeed, we have recently stated that "the basic essential function of an indictment * * * is * * * to notify the defendant of the crime of which he stands charged" (People v. Iannone, supra, at p. 598, 412 N.Y.S.2d 110, 384 N.E.2d 656). The majority today, by its holding, has effectively abrogated several of these firm principles.

The Per Curiam opinion discusses defendant's contentions concerning the failure of the indictment to allege the element of willfulness without determining whether willfulness is actually an element of the crime. The majority first states that an indictment which, without more, charges a violation of a specific statute, sufficiently incorporates both the statutorily defined elements and those elements of the crime produced by "judicial gloss". Thus, following the reasoning and holding of the Per Curiam in this case, if a statute defining a crime contained no reference to a required culpable mental state, an indictment which merely reiterates this statutory section would be legally sufficient notwithstanding that the courts have interpreted the statute as requiring that there be proof of the element of willfulness. Such a position is devoid of either legal or logical basis. Furthermore, in the present case the majority does not reach the question of whether willfulness is an element of the crime charged because the majority also holds that defendant, by his plea of guilty, waived any objection to the failure of the...