PEOPLE v. WRIGHT (2009)

In what appears to be a refractory impulse, both the People and defense counsel posit similarly flawed arguments regarding the sufficiency of the complaint herein, on grounds relating to Tax Law 1817[a], when in fact the charge referenced on the complaint is subsection 1817[d][1] of the Tax Law.

Mike Spick, author of Bassey's Modern Fighters:  The Ultimate Guide to In-Flight Tactics, Technology, Weapons, and Equipment, Dulles, Va.2002, is quoted as stating that “Whereas knights of old wore armor of plate, the modern knights of the air wear the invisible but magic armor of confidence in technology.”   Accordingly, whereas confidence in technology in our day and age is accepted, blind reliance on such technology without human quality control is a recipe for disaster.

It appears here that either a macro programming error or a keystroke mistake lead to the boilerplate charge information before the court failing to conform to the Tax Law charge asserted.   Thus, although the arguments of both the People and defense counsel are responsive to the boilerplate charge and the factual assertions, they fail to address the requirements of the charged Tax Law section.

It is without question that computers have become an indispensable part of the practice of law.   Long gone are the days of the scribe or the typewriter.   Today we largely depend on merge documents and codes to generate motions and replies.   But we must remain alert to the admonition of Aldous Leonard Huxley who said that “Technological progress has merely provided us with more efficient means for going backwards.”   What happens then when we fail to open a book or simply check the subsection of a charge?   The answer in the case at bar is a dismissal of the charges as facially insufficient to support the charge.

The defendant, Lateek Wright, is charged with violating Tax Law 1817[d][1], Sales and Compensating use taxes.   The defendant by omnibus motion moves to dismiss the information as facially insufficient, as well as for various other reliefs.   The motion is decided as follows.

As stated above, defendant's motion to dismiss for facial insufficiency is GRANTED.   In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15.   Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] and 100.40[1];  see People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986];  see also People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ).

 The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone (People v. Alejandro, 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71, quoting 1968 Report of Temp. Comm. on Rev. of Penal Law and Crim. Code, Intro. Comments);  however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999];  People v. Hyde, 302 A.D.2d 101, 754 N.Y.S.2d 11 [1st Dept. 2003] ).   Thus, “[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged” (People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 [2d Dept. 2005] ).   Finally, where the factual allegations contained in an information “give an accused sufficient notice 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 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000];  see also People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004];  People v. Jacoby, 304 N.Y. 33, 38-40, 105 N.E.2d 613 [1952];  People v. Knapp, 152 Misc. 368, 370, 274 N.Y.S. 85 [1934], affd. 242 App.Div. 811, 275 N.Y.S. 637;  People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998];  People v. Miles, 64 N.Y.2d 731, 732-733, 485 N.Y.S.2d 747, 475 N.E.2d 118 [1984];  People v. Shea, 68 Misc.2d 271, 272, 326 N.Y.S.2d 70 [1971];  People v. Scott, 8 Misc.3d 428, 797 N.Y.S.2d 847 [Crim. Ct., N.Y. County 2005] ).

 In the case at bar, the information alleges that in front of 218 West 125th Street in the County and State of New York, the following occurred:

Deponent states that deponent observed the defendant display and offer for sale over one-hundred (100) digital video discs (DVD's).

Deponent states that deponent observed defendant standing on the public sidewalk for at least five (5) minutes immediately behind a folding table and above-described merchandise was offered for sale thereon.   Defendant was the only person who was uninterruptedly in immediate proximity to the merchandise and did not leave the merchandise unprotected during the entire period of the officer's observation.

Deponent states that deponent observed defendant showing the merchandise to numerous people.   Deponent further states that at the time of deponent's observation, defendant was not displaying or found in possession of a Certificate of Authority to Collect Tax and could not produce one when asked.

Tax Law 1817[d][1] states that “[a]ny person (1) who willfully fails to charge separately the tax imposed under article twenty-eight of this chapter or to state such tax separately on any bill, statement, memorandum or receipt issued or employed by him upon which the tax is required to be stated separately ․ shall be guilty of a misdemeanor.”   Persons required to collect taxes include every person who makes sales of tangible personal property as a vendor.   Pursuant to section 1105[a] of the Tax Law imposition of the sales tax is paid “upon:  (a) the receipts from every retail sale of tangible personal property.”  (Tax Law 1105[a], see also, In re Shanty Hollow Corp., 111 A.D.2d 968, 970, 490 N.Y.S.2d 67 [3rd Dept. 1985] [“Taw Law 1105[a] imposes a sales tax on the receipts from every retail sale of tangible property”] ).   Therefore, to support the charge of violating section 1817[d] [1] of the Tax Law, the alleged facts must support a finding or inference that the defendant, a vendor, failed to collect taxes due upon the sale of tangible personal property.

Defendant contends the accusatory instrument is facially insufficient, since the factual allegations fail to allege facts establishing an actual selling of property or services.   It is defendants contention that to support the charge the factual allegations must allege facts establishing an actual sale of property or services, as the mere displaying of property for sale or services would not trigger the imposition of the sales and compensating use taxes requirements of Tax Law 1817.

In opposition, the People contend that the accusatory instrument is sufficiently plead to establish the defendant's commercial purpose.   Specifically, the People argue that an assessment of the totality of circumstances, such as the alleged openness of the display, nature of the items, defendant's proximity to the items, sufficiently supports the inference of a commercial purpose within the purview of Tax Law 1817.

Although the court agrees with the People that the allegations are sufficiently plead to support a reasonable cause to believe that the while offering tangible personal property defendant did not display or possess a valid certificate of authority from the Department of Taxation pursuant to subsection 1817[a][1], the issue before the court is not simply whether a sale occurred, but rather whether the defendant pursuant to subsection 1817[d][1] of the Tax Law “failed to charge separately the tax imposed.”  (Tax Law 1817[d] [1] ).

This court finds that the information is facially insufficient to establish a reasonable cause to believe that defendant violated Tax Law 1817 [d][1], as the information in this complaint lacks sufficient factual allegations to establish that defendant failed to collect sales tax after a sale.   The accusatory instrument fails to allege sufficient facts to support that defendant engaged in an actual sale or transfer of tangible property justifying the imposition of a tax, nor does the accusatory instrument contain facts upon which it could be inferred that the defendant's acts, of displaying the DVDs or offering them for sale arose to a level where imposition of the sale tax was warranted.   The Tax Laws as defined requires more than a mere inference that the defendant was engaged in a commercial purpose, the imposition of the tax requires a showing that the defendant engaged in a sale of tangible personal property yet failed to impose or collect a sales taxes.   (See, Tax Law Tax Law 1105[a] ).   Accordingly, defendant's motion to dismiss for facial insufficiency is GRANTED.

In light of the fact that the court is granting the defendant's motion to dismiss, the balance of the omnibus motion is denied as moot.

CONCLUSION

For the reasons discussed above, defendant's motion to dismiss the accusatory instrument on the grounds of facial insufficiency is granted.   The court directs that sealing be stayed for thirty days from the date of this decision to allow the People to file a timely, facially sufficient information if they so choose.

This constitutes the decision and order of the court.

MARC J. WHITEN, J.