People v. Laughing

• Decision Date: 16 January 2014
• Citation: 113 A.D.3d 956,2014 N.Y. Slip Op. 00267,979 N.Y.S.2d 416
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Andrew L. LAUGHING, Respondent. New York State Department of Taxation and Finance et al., Appellants.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 956
979 N.Y.S.2d 416
2014 N.Y. Slip Op. 00267

The PEOPLE of the State of New York, Plaintiff,
v.
Andrew L. LAUGHING, Respondent.
New York State Department of Taxation and Finance et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 16, 2014.

[979 N.Y.S.2d 417]

Eric T. Schneiderman, Attorney General, New York City (Jodi A. Danzig of counsel), for appellants.

Daniel S. Pease, Massena, for respondent.

Before: PETERS, P.J., ROSE, McCARTHY and GARRY, JJ.

PETERS, P.J.

Appeal from an order of the County Court of St. Lawrence County (Richards, J.), entered July 3, 2012, which denied

[979 N.Y.S.2d 418]

motions by the Division of State Police and the Department of Taxation and Finance to quash subpoenas ad testificandum issued by defendant.

Defendant and a codefendant were arrested and subsequently indicted for possession or transportation of unstamped cigarettes in violation Tax Law § 1814(c)(2) after State Police discovered over 30,000 unstamped cigarettes in a vehicle they were driving in St. Lawrence County.¹ Defendant moved to dismiss the indictment in furtherance of justice pursuant to CPL 210.40, alleging, among other things, that the Department of Taxation and Finance and the Division of State Police had a forbearance enforcement policy concerning this provision of the Tax Law when Native Americans-such as himself-transported Native American manufactured cigarettes from one reservation to another within New York. In support of the motion, defendant submitted an email sent by Richard Ernst, the Department's Deputy Commissioner, to members of the Department's enforcement bureau which, among other things, instructed that “untaxed [N]ative American cigarettes [transported] from one reservation in [New York] to another reservation in [New York]” are not to be seized. The Department conceded that the email memorialized a policy that was in effect prior to defendant's arrest and which remained in effect thereafter. Defendant also submitted an email from a State Police investigator documenting a nearly identical stop that occurred less than a month prior to his arrest wherein State Police, after making several phone calls, decided not to arrest him or to seize the cigarettes discovered in his vehicle. County Court ordered a Clayton hearing ( see People v. Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 [1973] ), specifically finding that “the present policy of the ... Department ... and of the [Division] with respect to prosecution of unstamped cigarette charges involving alleged Native Americans” was both relevant to the resolution of the motion and required further record development.

Defendant thereafter applied for judicial subpoenas duces tecum seeking documents from the Department and the Division related to their respective enforcement of the Tax Law with respect to cigarettes produced on Native American lands. Following a hearing, County Court denied the motion. Defendant then issued and served subpoenas upon Ernst and Robert LaFountain, Captain of the Division, to compel their testimony at the Clayton hearing. The Division and the Department thereafter moved to quash the subpoenas. County Court denied the motions, and this appeal ensued.²

Initially, the Department and the Division argue that, in denying defendant's application for subpoenas duces tecum on the ground of relevancy, but then subsequently upholding the subpoenas that sought to compel the testimony of Ernst and LaFountain, County Court violated the doctrine of law of the case. Even were we to find this assertion to be meritorious, this Court is neither bound nor restricted by that doctrine ( see Matter of Joy v. Kutzuk, 99 A.D.3d 1049, 1050, 952 N.Y.S.2d 644 [2012], lv. denied...