People v. Sciacca

• Decision Date: 24 July 1978
• Citation: 64 A.D.2d 677,407 N.Y.S.2d 504
• Parties: The PEOPLE, etc., Respondent, v. John SCIACCA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 504

407 N.Y.S.2d 504

64 A.D.2d 677

The PEOPLE, etc., Respondent, v. John SCIACCA, Appellant.

Supreme Court, Appellate Division, Second Department.

July 24, 1978.

Harvey L. Greenberg, New York City, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Morris Harary, Brooklyn, of counsel), for respondent.

Before TITONE, J. P., and SUOZZI, COHALAN and HAWKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 20, 1976, convicting him of unlawful possession and transportation, for the purpose of sale, of unstamped and unlawfully stamped cigarettes, as a felony, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress certain physical evidence.

Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law, and case remanded to the Criminal Term for the imposition of a new sentence in accordance herewith.

Insofar as it is necessary for the purposes of this appeal, it appears without contradiction on the present record that sometime during the early afternoon of August 13, 1973 two experienced investigators of the New York State Department of Taxation and Finance (Cigarette Tax Enforcement Unit) observed the defendant and one other unloading apparently sealed, "full cases" of name-brand cigarettes from the white Ford van he had been driving, into a garage adjacent to a private residence located at 1458 81st Street in the borough of Brooklyn. The defendant, a known cigarette smuggler, had been placed under observation by the officers earlier that afternoon and had been followed to the 81st Street address where the aforementioned observations took place. The van had been backed into the driveway (but not into the garage) and, according to both officers, had been parked in such a manner that the unloading process was not obscured by either the van or the house. All of their observations were made from the public sidewalk.

Armed with the foregoing information and possessed of the knowledge that the only persons who would normally be in possession of "full cases" of cigarettes in New York City would be bonded carriers or cigarette wholesalers, the officers then entered upon the driveway and approached their subjects for the purpose of inspecting the cases pursuant to section 474 of the Tax Law. Upon opening a few of the cartons, the officers found the appropriate tax stamps missing. At this point, the defendant and his companion were arrested. Following the denial of his pretrial motion to suppress the physical evidence, defendant entered his plea of guilty. Unlike our determination in a companion case involving this defendant (People v. Sciacca, 57 A.D.2d 846, 393 N.Y.S.2d 999, affd. 44 N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d ---- (June 15, 1978)), we believe that the instant motion to suppress the physical evidence was properly denied.

In the earlier case, just recently affirmed by the Court of Appeals, the New York State Tax Enforcement Bureau had come into possession of confidential information indicating that the defendant, John Sciacca, was involved in the smuggling of untaxed cigarettes into New York in violation of article 20 of the Tax Law, and that the defendant was using a green Dodge van license number 4205 KA, to transport the untaxed cigarettes into this State. A check of official records and communications revealed that the defendant had three prior arrests and one conviction for cigarette tax violations and that he had been stopped only recently by the North Carolina State Police, who observed in his green van hundreds of cartons of untaxed cigarettes.

Based on this information, officers of the Tax Enforcement Bureau began watching for the defendant's return. When they sighted his green van they followed it to an address in Brooklyn where the driver, who matched the defendant's description, was observed removing a box the size and shape of "a 1/2 case" of cigarettes from the rear of the van and handing it to an unknown male.

Some 12 days later, the tax investigators received further confidential information to the effect that the defendant was planning another trip to North Carolina and that he would return on the evening of September 24, 1974 with a large load of contraband cigarettes. The surveillance team also saw the defendant in the possession of papers which appeared to be cigarette order forms and, at one point, observed the defendant remove three cartons of Kent cigarettes from under the driver's seat of the truck. The vehicle was then followed to the New Jersey Turnpike, where it was seen heading south.

On the strength of this information a search warrant authorizing the search of defendant's van was obtained, whereupon the tax investigators stationed themselves near the garage where defendant had previously parked and waited for his return. At about 12:50 A.M. on the morning of September 25, 1974, the van, now being driven by an unknown male, arrived at the garage and double parked outside. The defendant, who arrived in a separate car, then entered the van and backed it into the garage. The two men emerged a few minutes later, closed the overhead door, secured it and then departed.

At this point the tax investigators continued their surveillance of the garage, which was a one-story brick building rented by a sewer contracting company. At or about 4:00 A.M., however, the investigators became impatient and, by moving aside a loose panel on the door, they crawled into the garage. They then proceeded to search the defendant's van, wherein they found 3,060 cartons of untaxed cigarettes. The investigators remained in the building until approximately 6:00 A.M. when the lessor, the owner of the sewer contracting company, arrived. The investigators identified themselves as enforcement officers...