People v Fofana (Baba)

[*1] People v Fofana (Baba) 2007 NY Slip Op 50807(U) [15 Misc 3d 136(A)] Decided on April 18, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 18, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., McCooe, Schoenfeld, JJ
.

The People of the State of New York, No.570474/04 Respondent,

against

Baba Fofana, Defendant-Appellant.

In consolidated criminal actions, defendant appeals

1) from two judgments of the Criminal Court of the City of New York, Bronx County (George Villegas, J.), each rendered May l7, 2004, upon his pleas of guilty, convicting him of unlicensed general vending and violations of Tax Law §§ 1814(a)(1), 1814(d) and 1817(d), and imposing sentence, and (2) from two judgments of the same court and Judge, each rendered May l7, 2004, upon his pleas of guilty, convicting him of disorderly conduct, and imposing sentence.
PER CURIAM:

Judgments of conviction (George Villegas, J. at plea and sentence), rendered May l7, 2004, affirmed.

The factual portions of the informations underlying these consolidated criminal prosecutions alleged, in sum and substance, that on various dates at a specified location at West Fordham Road in Bronx County, defendant was observed handing a pack of cigarettes to an undercover police officer or an "unapprehended" individual in exchange for cash; that at the time of each transaction defendant was in possession of specified amounts of assorted brands of cigarettes, which were contained in bags or boxes that defendant was holding or standing next to; that no New York State tax stamp was affixed to any of the packages of cigarettes in defendant's possession; and that defendant neither displayed nor was able to produce a certificate of authority to collect sales tax or a general vendor's license. These factual allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), were sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant violated the enumerated Tax Law provisions (see Tax Law §§ 1814[a][1], 1814[d], 1817[d]) and the general vending ordinance (see Administrative Code of City of NY § 20-453). As a matter of "common sense and reasonable pleading" (People v Devinny, 227 NY 397 401 [1919]), the informations were not required to negate each of the alternative tax payment options specified in Tax
Law § 471(2), which are appropriately treated as provisos to be raised by an accused, rather than [*2]as exceptions that must be pleaded by the People (see generally People v Santana, 7 NY3d 234, 237 [2006]; People v Bull, 5 Misc 3d 39, 41-42 [2004]).

We need not consider defendant's present challenge to the facial sufficiency of the disorderly conduct charge set forth in the information filed under docket number 2003BX066819, inasmuch as the information charging misdemeanors was otherwise jurisdictionally valid. The disorderly conduct charge was a violation (see Penal Law § 240.20). "A bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed" (People v Clairborne, 29 NY2d 950, 951 [1972]; see also People v Keiser, 100 NY2d 114 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 18, 2007