People v Jenkins

[*1] People v Jenkins 2010 NY Slip Op 51794(U) [29 Misc 3d 1211(A)] Decided on October 18, 2010 Sullivan County Ct LaBuda, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2010
Sullivan County Ct

The People of the State of New York

against

Gordon Jenkins and ROCHELLE MASSEY, Defendants.



98-2010



HON. JAMES R. FARRELL, ESQ.

District Attorney

Sullivan County Courthouse

Monticello, New York 12701

Attorney for the People

ALEX SMITH, ESQ.

6 North Street

Middletown, New York 10940

Attorney for defendant Massey

FEERICK LYNCH MacCARTNEY PLLC

96 South Broadway, PO Box 612

South Nyack, New York 10960

Attorney for defendant Jenkins

By: Donald J. Feerick, Esq.

Frank J. LaBuda, J.

The People brings this motion for leave pursuant to CPL 210.20(4) to re-present to the Sullivan County Grand Jury the facts and circumstances underlying the potential charges of Failure to Collect Sales Tax under Tax Law 1802, Criminal Tax Fraud in the Fifth Degree, an A misdemeanor. Defendant MASSEY opposes the motion. Defendant Jenkins joins in the opposition.

By two Decision and Orders, each dated September 7, 2010, this Court dismissed Counts Eleven through Fifteen of the Indictment herein as against both defendants on the grounds that the crime charged in those counts, Tax Law 1817(c)(1) had been repealed on April 7, 2009 and because the District Attorney had failed to instruct the Grand Jury as to relevant Sullivan County sales tax legislation.

The decision to allow the prosecutor to resubmit charges to another Grand Jury [*2]is discretionary when the charges were dismissed because the counts were defective within the meaning of CPL 210.25 (CPL 2010.20[a]). The counts herein were dismissed as defective because pursuant to CPL 210.25(3) the statute defining the offense charged, i.e. Tax Law 1817(c)(1), was invalid as it had been repealed prior to the alleged crimes and their presentation to the Grand Jury and because Sullivan County legislation imposing a sales tax had not been charged. Accordingly, this Court may authorize the Prosecutor to re-present the facts and circumstances underlying the defective counts and charge the Grand Jury to consider a legally sufficient offense pertaining thereto.

The People demonstrated to the Court's satisfaction that they inadvertently failed to check the updated law before instructing the Grand Jury. Therefore, the Court specifically finds that there is no showing of "any improper motive, attempt to gain an advantage over defendant or any other malfeasance or evidence of bad faith on the part of the People" (People v Loomis, 70 AD3d 1199 [3rd Dept 2010]) in connection with the prior defective presentation to the Grand Jury. Nor have the defendants demonstrated any prejudice to defendants in granting a re-presentment (see Ibid.).

Tax Law 1802 states, "A person commits criminal tax fraud in the fifth degree when he or she commits a tax fraud act." A tax fraud act means, "willfully engaging in an act or acts or willfully causing another to engage in an act or acts pursuant to which a person: ... (6) fails to collect any tax required to be collected under articles twelve-A, eighteen, twenty, twenty two, twenty-eight, or twenty-eight-A of this chapter, or pursuant to the authority of article 29 of this chapter...."[FN1] Tax Law 1131(1) and 1132(a)(1) of Article 28 require the vendor to collect sales tax at the time of sale. Tax Law 1210(33) of Article 29 authorizes Sullivan County to impose a sales tax in addition to the New York State sales tax. At all relevant times herein, the Sullivan County Legislature had imposed a 4% sales tax on personal tangible property and had not enacted an exemption of its applicable sales tax (see Sullivan County Board of Supervisors Resolution No. 3, Section 4-A, enacted January 6, 1975, and amended periodically thereafter, the last amendment relevant hereto being Sullivan County Legislature Resolution No. 396-09, adopted October 1, 2009, effective December 1, 2009, extending the 4% sales tax rate on tangible personal property).

The Court finds that the sworn testimony of the witnesses before the previous Grand Jury would have supported charges of violation of Penal Law 1802, Criminal Tax Fraud in the Fifth Degree, for the conduct underlying each dismissed count and sufficiently supports re-presenting the evidence before a new Grand Jury for consideration of the charges of violation of Tax Law 1802 for the five alleged sales of Nike sneakers and/or baseball caps as against both defendants.

Accordingly, the motion is granted and the District Attorney is granted leave to re-present [*3]to a new Grand Jury the facts and circumstances underlying the previously dismissed Counts Eleven through Fifteen of the Indictment herein, as alleged violations of Tax Law 1802.

This shall constitute the Decision and Order of this Court.

Dated: October 18, 2010

Monticello, New York

ENTER:

___________________________________

Frank J. LaBuda, J.C.C.

Footnotes

Footnote 1:Under Article 28, Tax Law 1105(a) imposes a 4% sales tax on the sale of all tangible personal property (except for exemptions not relevant hereto) which includes the sale of shoes and hats; At all relevant times herein the New York State Legislature had enacted an exemption of the 4% sales tax on the sale of all shoes and hats costing less than $110, (see www.nystax.gov) which the prosecution acknowledges.