PEOPLE v. FILACOURIS (1999)

Appeal by the defendant from a judgment of the County Court, Nassau County (LaPera, J.), rendered October 13, 1998, convicting her of grand larceny in the second degree, offering a false instrument for filing in the first degree (15 counts), and filing a false sales and compensating use tax return, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the conviction for filing a false sales and compensating use tax return, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant correctly argues that she was improperly convicted of filing a false sales and compensating use tax return (see, Tax Law § 1817[b][1] ), in addition to offering a false instrument for filing in the first degree (see, Penal Law § 175.35), with both crimes covering the same period of time.   The statutory definition of offering a false instrument for filing in the first degree, a felony, embraces the elements of filing a false sales and compensating use tax return, a misdemeanor, and the People could only prosecute one of the two crimes (see, People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746;  People v. Lacay, 115 A.D.2d 450, 496 N.Y.S.2d 337).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.