People v. Salvato

• Decision Date: 18 April 1984
• Citation: 476 N.Y.S.2d 955,124 Misc.2d 131
• Parties: The PEOPLE of the State of New York v. Joseph SALVATO, Defendant.
• Court: New York County Court

Page 955

476 N.Y.S.2d 955

124 Misc.2d 131

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

Supreme Court, Special Term,

Suffolk County.

April 18, 1984.

Robert Abrams, Atty. Gen. by Vincent J. O'Reilly, Asst. Atty. Gen., New York City, for the People.

Long, Tuminello, Besso, Seligman & Quinlan, Bay Shore, for defendant.

HARVEY W. SHERMAN, Acting Justice.

Ordered that this motion by defendant seeking an order of this Court vacating the previously entered judgment against the defendant is considered pursuant to § 440.10(1)(a) and 440.30 of the Criminal Procedure Law and is determined as follows:

The defendant herein was indicted for Grand Larceny in the Second Degree (3 Counts). Offering a False Instrument for Filing in the First Degree (4 Counts) and four violations of section 1145(b) of the New York State Tax Law. These charges arose out of the defendant's operation of a gas station in Suffolk County and his wilful filing of false sales tax returns and his failure to turn over to the State the proper amount of sales tax collected during the audit period. On May 3, 1983, the defendant herein entered a plea of guilty to attempted Grand Larceny in the Second Degree, a Class E Felony, before this Court, in satisfaction of the entire indictment.

On November 16, 1983, the defendant made restitution of back sales taxes in the amount of $15,000 and was sentenced to a conditional discharge for a period of 3 years, the condition being that defendant make an additional restitution payment of $47,967.68 in back sales taxes on or before February 17, 1984. On December 1, 1983 the Court of Appeals decided People v. Frank Valenza, 60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748. The defendant herein relies on this case to justify his request pursuant to CPL § 440.10(1)(a) to vacate the judgment and dismiss the felony counts of the indictment alleging that this Court had no jurisdiction to enter a conviction for Attempted Grand Larceny, Second Degree.

It is the Attorney General's position that the defendant waived any challenge to the applicability of the larceny statute to his sales tax involvement because of his plea of guilty.

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding (see People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 176; People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 827; People v. Harper, 37 N.Y.2d 96, 371 N.Y.S.2d 467, 332 N.E.2d 336; In the Matter of Michael G., 93 A.D.2d 836, 461 N.Y.S.2d 57). If the elements of the crime are alleged in the language of the statute (People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656), or by incorporating the statute by reference (People v. Cohen, 52 N.Y.2d 584, 439 N.Y.S.2d 321, 421 N.E.2d 813), any other defect in pleading the facts is non-jurisdictional and waivable.

"These recent decisions involving defendants' challenges to the sufficiency of a Grand Jury indictment thus reflect a clear movement away from requiring hypertechnical pleadings, where dismissals could cause lengthy representations to Grand Juries; resultant delay could be fatal to the prosecution and substantial justice be denied for want of the proverbial comma. Present policy of New York Courts is to sustain the sufficiency of a indictment provided that it pass the rudimentary tests of:

1) notification to the defendant of the crime for which he stands indicted and

2) specification to the extent of alleging that the defendant committed each and every element of the offense charged." People v. Lorenzo, 110 Misc.2d 410, 442 N.Y.S.2d 726.

The issue before this Court is not whether the defendant has waived, by his guilty plea, defects in the indictment pursuant to CPL 200.50 or in its failure to provide detailed notice of the offense charged. An indictment will be found jurisdictionally defective if "the acts it accuses defendants of performing simply do not constitute a crime (see People v. Case ), or if it fails to allege that a defendant committed acts constituting every material element of the crime (see People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250, 158 N.E.2d 830)" People v. Iannone, Supra, 45 N.Y.2d at p. 600, 412 N.Y.S.2d 110, 384 N.E.2d 656.

Therefore no person shall be prosecuted except for an offense as it is described by the legislature and of which fair notice has been provided to the person. In People v. Valenza, supra, the Court of Appeals has held that the failure to pay over sales tax could not be prosecuted as larceny. It appears that the defendant in this instant matter, in pleading guilty, is accepting punishment for conduct which does not constitute a crime. Such a result is not permissible under our system of jurisprudence (People v. Briggins, 50 N.Y.2d 302, 428 N.Y.S.2d 909, 406 N.E.2d 766; People v. Case, supra.). Here, the objection to the indictment is not waived by the plea of guilty since the count of the indictment upon which the plea was predicated, does not state a crime. Therefore the previously entered judgment must be vacated and the first three counts of the indictment which allege the offense of Grand Larceny in the Second Degree must be dismissed.

The defendant also seeks dismissal of the four additional felony counts of Offering a False Instrument for Filing in the First Degree, leaving solely the four respective violations of section 1145(b) of the Tax Law. The Attorney General would limit the impact of the Valenza decision only to the larceny counts, maintaining that the remaining four felony counts are legally sufficient and remain unaffected by Valenza. The question to be examined is whether, following the Valenza decision, conduct expressly covered in Section 1145(b) may be prosecuted under both the Tax Law and the Penal Law.

Analysis begins with the Court of Appeals decision in People v. Eboli, 34 N.Y.2d 281, 284, 357 N.Y.S.2d 435, which held that the fact that the statute making first-degree coersion a felony contained exactly the same elements as required for coercion in the second degree, a misdemeanor, did not violate constitutional guarantees of due process and equal protection.

"... we have consistently held that overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution. Unless there is evidence of legislative intent to the contrary (see, e.g., People v. Knatt, 156 N.Y. 302, 50 N.E. 835), the existence of a specific statute prohibiting the conduct involved, does not prevent prosecution under a more general statute. (People v. Bergerson, 17 N.Y.2d 398, 401, 271 N.Y.S. 236, 237, 218 N.E.2d 288, 289; People v. Hines, 284 N.Y. 93, 105, 29 N.E.2d 483, 491). The same result follows even where the overlap is inherent in the definitions of two offenses. In People v. Lubow, 29 N.Y.2d 58, 67, 323 N.Y.S.2d 829, 834, 272 N.E.2d 331, 335, it was recognized that the statutory definition of solicitation as a misdemeanor (Penal Law, § 100.05), embraced the elements of the lesser degree, solicitation as a 'violation' (Penal Law, § 100.00), and consequently, whenever the higher degree of solicitation was committed, so was the lower. Despite this inherent duplication, and the concomitant opportunity for choice by the District Attorney, prosecution for the higher crime was held permissible (29 N.Y.2d, at p. 67, 323 N.Y.S.2d 829, 272 N.E.2d 483; see People v. Bord, 243 N.Y. 595, 154 N.E. 620)."

The Court found the legislative intention to be one of providing for a "safety-value" feature when the method of coercion "for some reason ... lacks the heinous quality the legislature associated with such threats." However the Eboli decision only involved conflicting provisions of the Penal Law. This distinction from the instant situation was not lost on the Court in Valenza.

"The State argues that the general rule that a prosecution may be maintained under any penal statute proscribing certain conduct, notwithstanding that it overlaps with a more specific statute, should apply to this case (see People v. Eboli, 34 N.Y.2d 281, 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, 29 N.E.2d 331; People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S.2d 236, 218 N.E.2d 288). Although it is true that when two or more statutes make punishable the same conduct, a prosecutor may generally choose among the statutes when initiating a prosecution, that discretion may be limited by a legislative intention to make a specific statute the exclusive means of punishing particular conduct (see, e.g., People v. Costello, 305 N.Y. 63, 110 N.E.2d 880; Hazak, Inc. v. Robertson Goetz Building Co., 289 N.Y. 478, 46 N.E.2d 893; People v. Bloom, 248 N.Y. 582, 162 N.E. 533; People v. Knatt, 156 N.Y. 302, 50 N.E. 835; People v. Hislop, 77 N.Y. 331). On this basis, cases that uphold a prosecutor's discretion to maintain prosecutions under the more general of two overlapping criminal statutes are readily distinguishable from the case at bar.

"In those cases, the prosecutors chose among general and specific statutes, which were found within the Penal Law or even within the same provision of the Penal Law. The prosecutorial action was sustained because there was deemed to be no mutual exclusivity in the statute's application and, therefore, 'the duty devolves upon the Grand Jury and the District Attorney to determine under which of the applicable sections of the statute an indictment should be found' (People v. Florio, 301 N.Y. 46, 53, 92 N.E.2d 881, quoting People v. Malavassi, 248 A.D. 784, 289 N.Y.S. 163, affd. 273 N.Y. 460, 6 N.E.2d 403). In the instant case, the Legislature has provided in the Tax Law an integrated scheme of duties on vendors to collect, record, and pay sales tax, and for penalties to be imposed for certain breaches of those duties. The State seeks to maintain a criminal prosecution under a statute outside that integrated scheme under circumstances in which great...