People v. Pacifico

• Decision Date: 02 October 1980
• Citation: 432 N.Y.S.2d 588,105 Misc.2d 396
• Parties: The PEOPLE of the State of New York v. Joseph PACIFICO, Defendant.
• Court: New York City Court

Page 588

432 N.Y.S.2d 588

105 Misc.2d 396

The PEOPLE of the State of New York v. Joseph PACIFICO, Defendant.

Criminal Court of the City of New York, Queens County, Part 1C.

Oct. 2, 1980.

John J. Santucci, Dist. Atty., Queens County, Kew Gardens, Ralph J. Vecchio, Deputy Commissioner and Counsel, Dept. of Taxation and Finance, New York City, for the People; Ira I. Schreiber, Asst. Dist. Atty., Kew Gardens, Deborah Dwyer, Associate Director, New York City, of counsel.

Ernest H. Hammer, New York City, for defendant.

CORNELIUS J. O'BRIEN, Judge:

This case is before this Court for decision on defendant's motion to dismiss the accusatory instrument filed herein pursuant to Sections 100.15, 100.40, and 170.35 of the Criminal Procedure Law for failure to allege "a necessary element of the offense charged."

FINDINGS OF FACT

The defendant, Joseph Pacifico, is before the Court on a misdemeanor information, sworn to on May 21, 1980, by Investigator J. Anzalone of New York State Tax Department, alleging that:

"... on 4/28/80 at about 10:30 A.M. at 117-19 14 Road, College Point, Queens, State of New York, the defendant committed the offense of: a. Art. 20 Sec. 481.2 State Tax Law (Cigarette Tax Law) under the following circumstances:

Deponent states that at the above date, time, and location in the County of Queens, the defendant did unlawfully possess a quantity of cigarettes to wit: 14 cartons, which cigarettes did not have affixed thereon the New York State Cigarette Tax Stamp as required by the above section and deponent (sic) further that the said untaxed cigarettes were recovered in the defendant's place of business at the above location in a storage room therein."

The defendant, by his motion, asserts that,

"(t)he information as drawn does not allege that the defendant '... wilfully attempt(ed) in any manner to evade or defeat the taxes imposed by this article ...' in the body of the complaint. It is therefore inadequate and fails to meet the statutory standard required."

The People respond that a reading of Art. 20 Sec. 481.2 of the State Tax Law,

"indicates that the prosecution of a violation of the Cigarette Tax Law may proceed upon either of two theories-intent to sell or intent to evade."

When the statute is read together with the complaint, the People contend that the defendant is adequately apprised of the charge against him.

Both sides concede that the cigarettes in question bore New Jersey tax stamps. The defendant asserts, and the People do not at this juncture offer contradictory evidence, that the cigarettes were destined for consumption in New Jersey.

CONCLUSIONS OF LAW

An information must demonstrate reasonable cause to believe that the defendant committed the offense charged and must also establish a legally sufficient case against the defendant. People v. Crisofulli, 91 Misc.2d 424, 398 N.Y.S.2d 120 (N.Y.C. Criminal Court, N.Y.Co., 1977). In order to be sufficient on its face, the information must be subscribed and verified by a "complainant" having knowledge of the offense charged. The accusatory part of the information must designate the offense charged. The factual part of the information must allege facts of an evidentiary character, must provide reasonable cause to believe the defendant committed the offense charged, and must, if true, establish every element of the offense charged and the defendant's commission of it. Secs. 100.15 and 100.40 CPL.

An accusatory instrument is defective on its face when it does not conform to the requirements of Sec. 100.40 CPL. However, the instrument may not be dismissed as defective, but must be amended where the defect or irregularity is of a kind that may be cured by amendment, and the People move to so amend. Sec. 170.35(1)(a) CPL. (The People, in their opposing papers, have expressed a willingness to amend should the Court find the information to be defective.)

Art. 20 Sec. 481.2 states in pertinent part:

"2. Any person other than an agent, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to the tax imposed by section four hundred seventy-one of this chapter, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of this article, or who wilfully attempts in any manner to evade or defeat the taxes imposed by this article, or the payment thereof, shall be guilty of a misdemeanor and upon conviction thereof, for a first offense, shall be sentenced to pay a fine of not more than one thousand dollars, or to be imprisoned for not more than one year, or both, in the discretion of the court; and for a second (or subsequent) offense, shall be sentenced to pay a fine of not less than (two hundred fifty) dollars nor more than (twenty-five hundred) dollars, and to be imprisoned for a definite fixed period which shall be not less than six months and not more than one year.... The possession or transportation within this state by any person other than an agent at any one time of five thousand or more cigarettes in unstamped or unlawfully...