Summary
In People v. Walsh (67 N.Y.2d 747), the Court of Appeals specifically reaffirmed this principle and clarified People v Valenza (60 N.Y.2d 363, supra) to the extent that it might have been read to imply a contrary view.
Summary of this case from People v. OhrensteinOpinion
Decided February 19, 1986
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Norman J. Felig, J.
Arnold C. Stream and Richard A. La Rosa for appellants.
Robert Abrams, Attorney-General (Edward D. Saslaw of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
People v Valenza ( 60 N.Y.2d 363) does not prevent the prosecutor from charging an individual who files an allegedly false sales and use tax return with a violation of Penal Law § 175.35 — that is, offering a false instrument for filing in the first degree (see, People v Pisano, 105 A.D.2d 1156; People v Lacay, 115 A.D.2d 450). Valenza holds that "[a] vendor who collects sales taxes from customers, but fails to remit the sales taxes due the State under circumstances indicating an intent to permanently deprive the State of the taxes, may not be subjected to criminal prosecution for larceny by embezzlement" (People v Valenza, supra, p 367). In Valenza, we noted that "[t]he Legislature's structuring of [Tax Law former] section 1145 to provide substantial civil penalties for failing to pay over sales tax and to exclude this conduct from the criminal penalties section [Tax Law former § 1145 (b)] must be deemed to manifest an intent to exclude such conduct from criminal prosecution under either the Tax Law or the Penal Law" (People v Valenza, supra, p 372). While excluding criminal penalties for failing to pay over sales tax, Tax Law former § 1145 (b) provided for criminal penalties for filing a false sales or use tax return. There being no legislative intent to exclude criminal sanctions for the latter activity, the general rule that a prosecution may be obtained under any penal statute proscribing certain conduct, notwithstanding that the penal statute overlaps with a more specific statute, applies in this situation (People v Eboli, 34 N.Y.2d 281, 287; People v Lubow, 29 N.Y.2d 58, 67; People v Bergerson, 17 N.Y.2d 398, 401).
In the aftermath of our decision in Valenza, the Legislature amended Tax Law former § 1145 by adding the following subdivision: "(d) The penalties provided for in this section shall not preclude prosecution pursuant to the penal law with respect to the willful failure of any person to pay over to the state any sales tax * * * whenever such person has been required to collect and has collected any such sales tax" (L 1984, ch 575, § 1, since renumbered as Tax Law § 1817 [k], L 1985, ch 65, § 39). While recognizing that this amendment is not dispositive of the issue now before us, we nevertheless view the legislative response to the Valenza decision as evidencing an over-all intent to permit the prosecutor the choice of proceeding under the Penal Law for criminal offenses also proscribed by the Tax Law.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.