People v. Pisano
| Decision Date | 07 November 1984 |
| Citation | 482 N.Y.S.2d 593,105 A.D.2d 1156 |
| Parties | PEOPLE of the State of New York, Respondent, v. Robert PISANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Frank Nebush, Jr., by Esther Cohen Lee, Utica, for appellant.
Robert Abrams, Atty. Gen., Albany, Edward Saslaw, New York City, for respondent.
Before DOERR, J.P., and BOOMER, GREEN, O'DONNELL and SCHNEPP, JJ.
Defendant was indicted for grand larceny in the second degree (Penal Law, § 155.35), offering a false instrument for filing in the first degree (Penal Law, § 175.35) and failure to file a sales tax return (Tax Law, § 1145, subd. b). He was convicted of the false instrument and failure to file charges and acquitted of the grand larceny charge. Defendant contends that the conviction for offering a false instrument for filing is invalid because the penalty provided in the Tax Law ( § 1145 subd. b) is the exclusive remedy and because the guilty verdict was inconsistent with the acquittal for grand larceny.
Defendant waived his exclusivity argument by failing to make a motion to dismiss prior to or during trial and he cannot raise the point for the first time in his brief on appeal (see People v. Grimsley, 60 A.D.2d 980, 981, 401 N.Y.S.2d 643; CPL 210.20, subd. 1, par. ). The argument has no merit in any event because unlike the failure to pay sales taxes at issue in People v. Valenza, 60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748, for which the Tax Law prescribed only a civil penalty (Tax Law, § 1145, subd. a), the conduct for which defendant was convicted in this case, i.e., intentional filing of false sales tax returns, is a crime under both the Penal Law ( § 175.35) and the Tax Law ( § 1145, subd. b) (cf. People v. Fratto, 103 A.D.2d 1000, 478 N.Y.S.2d 208). It is well settled that overlapping criminal statutes present no bar to prosecution under a more general statute which provides a more severe penalty (see People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 313 N.E.2d 746; People v. Lubow, 29 N.Y.2d 58, 67, 323 N.Y.S.2d 829, 272 N.E.2d 331; People v. Bergerson, 17 N.Y.2d 398, 401, 271 N.Y.S.2d 236, 218 N.E.2d 288).
Defendant's contention that the verdict was inconsistent and repugnant also was not properly preserved for review (see People v. Stahl, 53 N.Y.2d 1048, 442 N.Y.S.2d 488, 425 N.E.2d 876). In any event, the verdict was not inconsistent because acquittal of defendant of grand larceny in the second degree was not conclusive as to any necessary element of defendant's conviction for offering a false instrument for filing in the first degree (see People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617). Since the two crimes do not have the...
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