People v. Lacay
| Decision Date | 26 December 1985 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Gerard LACAY and Fong Mok, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
R.A. Seranfini, Brooklyn, for appellant.
J. Karp, Brooklyn, for defendants-respondents.
Before KUPFERMAN, J.P., and SULLIVAN, ROSS, KASSAL and ELLERIN, JJ.
Order, Supreme Court, New York County (Carol Berkman, J.) entered January 28, 1985 which granted the People's motion for reargument of the Court's prior order dismissing the indictments of the defendants, and, upon reargument, adhered to its prior determination, unanimously modified, on the law, to reinstate the indictments, and otherwise affirmed. Appeal from the Order, Supreme Court, New York County (Carol Berkman, J.), entered October 22, 1984 dismissed as superseded by the appeal from the order granting reargument.
The defendants, charged with filing false sales tax returns, were indicted for the crime of offering a false instrument for filing in the first degree (Penal Law § 175.35). The defendants moved to dismiss the indictments, challenging the ability of the State to prosecute them for this crime under the Penal Law since they claim that the Tax Law provides the exclusive basis of punishment for filing false sales tax returns. The Supreme Court granted the motion and dismissed the indictments on this ground, relying on People v. Valenza, 60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748. We find that Valenza is distinguishable from the case at bar, and accordingly we reinstate the indictments.
In Valenza, the Court of Appeals held that since Article 28 of the Tax Law provides an integrated scheme of civil penalties for failure to pay over or remit sales and use taxes, the State cannot maintain a criminal prosecution for such violations under another statute (in that case larceny under the Penal Law).
The defendant in Valenza had failed to pay over sales taxes, which violates Tax Law § 1137(a) and is exclusively punishable by the civil penalties provided for in Tax Law § 1145(a) that subsection. In distinction, in the instant case the defendants allegedly filed false Sales and Use Tax returns, which is prohibited by Tax Law § 1145(b). This statute provides for criminal penalties, and in addition it explicitly states that its penalties are "in addition to any other penalties herein or elsewhere prescribed."
Accordingly, the rationale of Valenza does not apply to this case. Valenza forbids criminal prosecution under a statute (Tax Law § 1145(a)) for whose violation the legislative intent is to impose civil penalties only (60 N.Y.2d at 369, 469 N.Y.S.2d 642, 457 N.E.2d 748). Here the statute involved does provide for a criminal penalty.
Furthermore, Valenza at p. 371-72, 469 N.Y.S.2d 642, 457 N.E.2d 748 disallows prosecution under an additional statute where Tax Law § 1145(a) provides an "integrated scheme" of civil penalties. Here, Tax Law § 1145(b) is not integrated but rather by its terms explicitly allows prosecution under laws "elsewhere prescribed".
The existence of both a specific statute and a general statute...
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