People v Cisse

[*1] People v Cisse 2004 NY Slip Op 50794(U) Decided on July 15, 2004 Criminal Court, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2004
Criminal Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

BIRANE CISSE Defendant



2004NY029177



For People, ADA John Temple, Ny Co. District Attorney's Office, One Hogan Place, NY, NY 10013, (212) 335-4237. For Defendant, Legal Aid Society by Alan S. Kahn, 49 Thomas Street, NY, NY 10013, (212) 298-5333.

Richard M. Weinberg, J.

Defendant is charged in an information with violating Tax Law § 1817(d)(1). He has moved for an order dismissing the information for facial insufficiency under Criminal Procedure Law §100.40, as well other forms of relief.

Criminal Procedure Law §100.40 and, by reference, Criminal Procedure Law §100.15 require that factual allegations of an evidentiary character in the information provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case that the defendant is guilty. (People v. Allen, 92NY2d 378). While an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v Hall, 48NY2d 927), the prima facie requirement is not the same as the burden of proof required at trial. (People v Henderson, 92 NY 2d 677). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. (People v. Casey, 95 NY2d 354).

The allegations in the information are sufficient to meet the reasonable cause and prima facie requirements of the Criminal Procedure Law. A fair reading of the accusatory instrument provides the defendant with notice that he must defend against a charge that, on a particular day and at a particular location, he offered for sale books, which were tangible personal property subject to tax, without possessing nor being able to present a certificate of authority required under the tax laws of the State of New York. The defendant's First Amendment argument, based on language contained in Tax Law § 1105(c)(1), is without merit. Contrary to defendant's assertion, the "except for resale" language of that provision does not provide an exception to the imposition of a sales tax on the sale of material which might otherwise enjoy certain First Amendment protections. That statutory language refers to a situation where a purchaser acquires an item solely for the purpose of resale. Such purchases for resale are exempt from tax. See In the [*2]Matter of Micheli Contracting Corporation v New York State Tax Commissioner, 109 AD2d 957 (3rd Dept., 1985). Defense counsel has cited neither statutory nor case law which would prohibit the imposition of a tax upon the retail sale of books and which would render this information constitutionally infirm. He would have this court essentially declare that any tax imposed upon the sale of books is per se unconstitutional under the First Amendment. This court does not accept defense counsel's invitation to do so.

The defendant's motion to dismiss the information for facial insufficiency is denied.

The defendant's request for discovery and a bill of particulars is granted to the extent indicated in the People's response and VDF.

The defendant's motion to suppress physical evidence is granted to the extent of ordering a Mapp/Dunaway hearing.

The defendant's motion for preclusion under CPL §710.30 is granted to the extent applicable.

The defendant's Sandoval motion is referred to the trial court.

The People are reminded of their continuing Brady, Rosario and related responsibilities.

The defendant's motion for preclusion for failure to comply with discovery demands is, to any extent applicable, referred to the trial court.

The defendant's motion for a voluntariness hearing concerning any unnoticed statements is, to any extent applicable, referred to the trial court.

The defendant retains all rights to which he is entitled under CPL §255.20.

This constitutes the decision and order of the Court.

Dated: ___________________________

New York, New YorkJudge of the Criminal Court