People v Mercado

People v Mercado 2010 NY Slip Op 07409 [77 AD3d 501] October 19, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Harry Mercado, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 16, 2007, convicting defendant, after a nonjury trial, of attempted violation of Tax Law § 1814 (d) and § 1817 (d), and sentencing him to an aggregate term of 10 days, unanimously affirmed.

The accusatory instrument contained sufficient factual allegations. Although there was no allegation that defendant displayed the unstamped cigarettes he possessed, the allegation that he was calling out "Cigarettes, loosies" established an offer to sell those cigarettes, since the conduct alleged had no other reasonable interpretation (cf. People v Lewis, 50 AD3d 595 [2008], lv denied 11 NY3d 790 [2008] [in probable cause context, announcement to passersby "I got tickets, Billy Joel tickets," in front of Madison Square Garden had no rational explanation except offer to sell]).

Defendant's remaining contentions are unavailing (see People v Correa, 15 NY3d 213 [2010]). Concur—Mazzarelli, J.P., Sweeny, Acosta, Abdus-Salaam and RomÁn, JJ.