Opinion
08-7519.
Decided on September 26, 2008.
Michael C. Green, Monroe County District Attorney (Sara Valencia, Assistant District Attorney, of counsel), for plaintiff.
Scott A. Garretson, Esq., for defendant.
Defendant is charged with Cigarette Tax Evasion, an unclassified misdemeanor under NY Tax Law § 1814(a)(1), and Possession or Sale of Unstamped Cigarette Packages, an unclassified misdemeanor under NY Tax Law §§ 1814(d). Defendant has moved to dismiss the single accusatory instrument as jurisdictionally defective. He also contends that the police lacked probable cause to arrest him.
A probable cause hearing was conducted on August 19, 2008. For the reasons set forth below, the accusatory instrument is legally sufficient with respect to the Cigarette Tax Evasion Charge. On the other hand, the accusatory instrument is jurisdictionally defective with respect to the Possession or Sale of Unstamped Cigarette Packages. Further, the evidence at the probable cause hearing reveals that the police lacked probable cause to arrest defendant.
FACTS
In early May 2008, Rochester Police Officer Matthew Webster received information that a six foot tall, clean shaven, bald headed man was selling cigarettes out of his knapsack in downtown Rochester, New York. At about 11:30 a.m. on May 14, 2008, Officer Webster was in his patrol car when he saw a man near St. Paul and Main Streets in Rochester who matched the cigarette seller's description. He parked his car, and eventually positioned himself in one of Rochester's elevated skywalks. Using binoculars, Officer Webster watched the man, who was later identified as defendant, from his observation post.
As he watched, Officer Webster saw defendant appear to engage in hand to hand transactions with several people. Specifically, Officer Webster saw defendant hand over what appeared to be Newport cigarette boxes from his shoulder bag in exchange for currency bills to four men and women. From his vantage point, however, Officer Webster could not see whether the cigarette packs had tax stamps.
After observing defendant's conduct for several minutes, Officer Webster radioed a fellow police officer to direct him to talk to one of the apparent cigarette purchasers. Officer Webster then left the skywalk and walked to defendant's location. By then, the other police officer, who had not been able to find any of defendant's customers, had stopped defendant.
When he arrived, Officer Webster's fellow officer was pat frisking defendant, whose hands were behind his back. Officer Webster then pat frisked defendant again for weapons, but found none. Defendant did not respond when Officer Webster asked him if had a permit to sell cigarettes.
At that point, Officer Webster looked at defendant's shoulder bag, which was on the sidewalk next to defendant. Seeing a pack of Newport cigarettes inside the bag, Officer Webster leaned down and removed the pack from the bag to inspect it. Upon his inspection, Officer Webster saw that the cigarette pack did not have a tax stamp.
Officer Webster then arrested defendant and searched defendant's shoulder bag and pants pockets. As a result of his search, Officer Webster seized several unstamped packs of cigarettes from defendant's shoulder bag and several bills of United States currency from defendant's pockets.
LEGAL ANALYSIS Sufficiency of Accusatory Instrument
The sworn misdemeanor information alleges that on May 14, 2008, Officer Webster saw defendant sell unopened cigarette packs without tax stamps in public to four individuals. The information also alleges that defendant possessed twenty-four unopened packs of Marlboro, Newport, and Winston cigarettes without tax stamps and thirteen unopened boxes of Seneca cigarettes in defendant's canvas shoulder bag, and $587.00 in small bills in his pockets.
With respect to the accusatory instrument, defendant argues, first, that the Cigarette Tax Evasion charge is defective because the information fails to allege that twenty-four hours had elapsed since the defendant took possession of the untaxed cigarettes. Defendant argues, second, that the Possession or Sale of Unstamped Cigarette Packages charge is defective because the allegations are conclusory, and because intent is not expressly alleged. For the reasons set forth below, these arguments lack merit. As explained below, however, the Possession or Sale of Unstamped Cigarette Packages is defective for a reason other than those asserted by defendant.
I.Cigarette Tax Evasion Charge
It is black letter law that to be jurisdictionally sufficient, a misdemeanor information must contain factual allegations of an evidentiary nature that support each element of every charged crime. See People v. Konieczny , 2 NY3d 569 , 575 (2004); People v. Alejandro, 70 NY2d 133, 137 (1987); NY C.P.L. § 100.40(1)(c). Under NY Tax Law § 1814(a)(1), a person is guilty of the misdemeanor of attempting to evade or defeat the payment of taxes if he or she "willfully attempts in any manner to evade or defeat any tax imposed by article twenty of this chapter."
This criminal provision does not include any specific clause providing that a person must have possessed untaxed cigarettes for at least twenty-four hours to be guilty of this crime.
However, defendant points to NY Tax Law §§ 471-a and 471-c, the Tax Law provisions that impose taxes on "all cigarettes used in the state by any person" for any purpose other than for sale. These sections set forth certain exceptions to the imposition of cigarette taxes. As defendant accurately observes, both NY Tax Law § 471-a and NY Tax Law § 471-c provide that:
NY Tax Law §§ 471-a and 471-c define "use" as possession or retention "but shall not include possession for sale." Additionally, NY Tax Law §§ 471(1) and 471-b impose taxes on tobacco products and cigarettes possessed by any person for sale.
Within twenty-four hours after liability for the tax accrues, each such person shall file with the commissioner a return in such form as the commissioner may prescribe together with a remittance of the tax shown to be due thereon.
Defendant contends, and the Court concurs, that this clause means that a person who possesses taxable cigarettes for a use other than for sale has twenty-four hours from the time the tax liability accrues to pay the required taxes. Therefore, as defendant correctly maintains, a person is not guilty of Cigarette Tax Evasion unless he or she has possessed for use (distinct from possession for sale) taxable cigarettes for which taxes have not been paid for more than twenty-four hours. See City of New York v. Land and Building Known as 283 Ralph Ave. , 17 Misc 3d 1004 , 1008-09 (Sup Ct, Kings County 2007).
Relying on these statutory provisions, defendant contends that an accusatory instrument charging a person with Cigarette Tax Evasion must affirmatively allege that the person possessed the cigarettes for more than twenty-four hours without paying taxes. According to defendant, failure to include such an allegation in the accusatory instrument renders it jurisdictionally defective.
In support of his position, defendant relies on People v. Tracy , 1 Misc 3d 308 (Watertown 2003). The Tracy court found that the possession of untaxed cigarettes for more than twenty-four hours is an essential element of the crime of Cigarette Tax Evasion under NY Tax Law § 1814(a)(1). As a result, according to the Tracy court, the elapse of the twenty-four hour "window" period must be pleaded in an accusatory instrument to survive dismissal. See People v. Tracy, 1 Misc 3d at 313-14.
In reaching its decision, the Tracy court parsed the various statutory provisions that directly affect the Cigarette Tax Evasion criminal statute, NY Tax Law § 1814(a)(1), including the cigarette tax imposition and exception provisions (NY Tax Law §§ 471-a, 471-c), and the statutory presumption that all cigarettes are taxable (NY Tax Law § 471(1)). See also NY Tax Law § 481(2)(a) (the possession of more than 400 unstamped cigarettes, 250 unstamped cigars, or five pounds of unstamped tobacco creates presumption that such items are taxable). The court concluded that to enable the various pertinent statutory provisions to operate "harmoniously rather than in conflict,'" the passage of twenty-four hours is an essential element of the crime of Cigarette Tax Evasion that must be pleaded. People v. Tracy, 1 Misc 3d at 314, quoting People v. Gorman, 195 Misc 2d 211, 215 (Watertown 2003).
Despite its detailed statutory construction analysis, the Tracy court did not discuss the legal principles applicable to determine whether a particular statutory provision that affects a criminal charge must be pleaded in an accusatory instrument. In particular, the Tracy court did not apply the requisite legal test to determine whether the twenty-four hour window period provision in NY Tax Law §§ 471-a and 471-c constitutes an exception that must be affirmatively pleaded in the negative, or whether it constitutes a proviso that "need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial." People v. Santana , 7 NY3d 234 , 236 (2006).
The New York Court of Appeals has emphasized that to determine the essential elements of a crime that must be affirmatively pleaded in an accusatory instrument, a court must look to the specific statute defining the crime, not to related provisions found apart from the defining statute. According to the Court, when the defining statute itself contains an exception, the accusatory instrument must allege the nonexistence of the exception. On the other hand, when the exception is found outside the statute defining the crime, "the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense." People v. Kohut, 30 NY2d 183, 187 (1972). See People v. Santana, 7 NY3d at 237.
The statute that defines the crime of Cigarette Tax Evasion, NY Tax Law § 1814(a)(1), does not contain any reference to the twenty-four hour window period. Indeed, the twenty-four hour window period provision does not appear at all in Article 37 of New York's Tax Law entitled, "Crimes and Other Offenses, Seizures and Forfeitures." Article 37 sets forth the crimes and penalties associated with New York's tax laws, including NY Tax Law § 1814. Instead, the twenty-four hour window period provided by NY Tax Law § 471-a and NY Tax Law § 471-c is found in NY Tax Law Article 20, an entirely separate article entitled, "Tax on Cigarettes and Tobacco Products."
The possession of untaxed cigarettes for more than twenty-four hours is not, therefore, an element of the crime of Cigarette Tax Evasion that must be affirmatively pleaded in an accusatory instrument. To the contrary, the twenty-four hour window period clause is a proviso that may be raised as a defense by defendant, but does not need to be pleaded. See People v. Santana, 7 NY3d at 237. See, e.g., People v. Marotti, 20 Misc 3d 16, 18-19 (App. Term, 9th 10th Jud. Dists. 2008) (parking lot limitations related to intoxicated driving charge, found in separate section of the NY Vehicle Traffic Law, is a proviso that need not be pleaded).
The charge of Cigarette Tax Evasion charge is sufficiently pleaded for an entirely different reason as well. In this case, Officer Webster observed defendant selling the cigarette packs that he possessed. The twenty-four hour window period clause, however, applies only to a Cigarette Tax Evasion charge when a defendant possesses untaxed cigarettes for any purpose other than for sale. See NY Tax Law §§ 471-a and 471-c. In contrast, when a defendant is charged with Cigarette Tax Evasion in the context of possession of untaxed cigarettes for the purpose of sale, the fact that the defendant possessed the cigarettes for less than twenty-four hours is not a defense. See NY Tax Law § 471-b. Because defendant was accused of selling the untaxed cigarettes in his possession, therefore, the twenty-four hour window period is not a defense to the Cigarette Tax Evasion charge lodged against him.
II.Possession Or Sale of Unstamped Cigarette Packages Charge
Defendant is also charged with a violation of NY Tax Law § 1814(d). That law provides that:
Any person, other than an agent licensed by the commissioner, who possesses or transports for the purpose of sale any unstamped . . . packages of cigarettes subject to tax . . ., or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes . . . shall be guilty of a misdemeanor.
Defendant contends that the allegations in the accusatory instrument are insufficient to show a violation of NY Tax Law § 1814(d) because they are conclusory and do not demonstrate defendant's intent to sell the cigarettes. The Court disagrees.
The nonhearsay allegations are clear and concise. They are neither conclusory nor vague. Although the accusatory instrument does not expressly describe the precise conduct that Officer Webster observed to conclude that defendant's conduct amounted to a sale of goods in exchange for money, the word "sell" is a commonly understood term that does not have to be elaborated to understand its meaning and import. Thus, the allegations relating to the observed sale of cigarettes are sufficiently specific to give defendant notice of the information needed to prepare an adequate defense. See People v. Konieczny, 2 NY3d at 575; People v. Casey, 95 NY2d 354, 360 (2000).
Moreover, a defendant's intent, like a defendant's knowledge, can be inferred from both the accusatory and factual components of a misdemeanor information. See People v. Santos , 17 Misc 3d 520 , 529 (NY County 2007). Defendant's intent to possess unstamped cigarettes for the purpose of sale can be inferred both by the assertion that he was observed selling the cigarettes, and by the assertions that he possessed thirty-four unopened packs of cigarettes and $587.00 in small bills.
When an accusatory instrument gives an accused sufficient notice to prepare a defense and is adequately detailed to prevent a defendant from being tried twice for the same offense, a reviewing court must give the instrument "a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d at 360. See People v. Konieczny, 2 NY3d at 575. Viewed in this light, the allegations in the accusatory instrument relevant to the Possession or Sale of Unstamped Cigarette Packages charge are sufficiently specific. See People v. Polianskaia, 189 Misc 2d 237, 238-39 (N.Y.C. 2001).
On the other hand, the allegations charging defendant with Possession Or Sale of Unstamped Cigarette Packages are defective for a reason not advanced by defendant. As noted above, NY Tax Law § 1814(d) criminalizes the sale of untaxed cigarettes, or the possession of untaxed cigarettes for the purpose of sale, unless the person is "an agent licensed by the commissioner." This exclusion is found in the same statutory provision that otherwise criminalizes the possession or sale of untaxed cigarettes. For that reason, the exclusion is an exception to the conduct that otherwise constitutes a crime. Its absence, therefore, must be pleaded in the accusatory instrument. See People v. Santana, 7 NY3d at 237; People v. Kohut, 30 NY2d 183, 187 (1972).
The accusatory instrument in this case contains no direct or circumstantial facts of an evidentiary nature alleging that defendant is not a licensed agent. Accordingly, the allegations underlying the charge that defendant violated NY Tax Law § 1814(d) are insufficient, and the charge must be dismissed. Cf. People v. Fofana , 15 Misc 3d 136 (A) (App. Term, 1st Dep't), lv denied, 9 NY3d 865, reconsideration denied, 9 NY3d 875 (2007) (factual allegations that defendant failed to display a license sufficient for pleading purposes with respect to alleged violation of cigarette tax laws).
Suppression of Evidence
Defendant moves for suppression of the evidence that was seized when his shoulder bag and pockets were searched. He maintains that Officer Webster had no constitutional basis to seize the initial pack of cigarettes from his shoulder bag, and therefore had no basis to arrest him or search his pockets and shoulder bag following his arrest.
As noted above, a probable cause hearing was held to determine whether defendant's suppression motion should be granted. The evidence adduced at the hearing demonstrates that before he approached defendant on the street, Officer Webster had seen defendant selling cigarette packs to people in public. Neither he nor his fellow officer, who had stopped defendant on the street before Officer Webster arrived at the scene, had spoken to any of defendant's customers, and neither he nor his fellow officer knew whether the cigarette packs defendant possessed or sold had tax stamps. Thus, when Officer Webster approached defendant, he had no basis to know whether the cigarette packs he had seen in defendant's possession were stamped or unstamped.
It was not until he reached into defendant's shoulder bag, retrieved the Newport cigarette pack, examined it, and saw that the pack did not have a tax stamp that Officer Webster had probable cause to arrest defendant for the commission of a crime. Whether Officer Webster was constitutionally permitted to reach into defendant's shoulder bag to retrieve the Newport cigarette pack, which provided the probable cause for defendant's subsequent arrest, requires an analysis of his interactions with defendant, as explained in People v. De Bour, 40 NY2d 210 (1976) and its progeny.
In De Bour, the Court of Appeals outlined its four tiered methodology for evaluating the propriety of a police encounter with a person. A Level One encounter, the least intrusive of the four, permits a police officer to approach an individual to ask basic and nonthreatening questions where there is "some objective credible reason for that interference not necessarily indicative of criminality." People v. Hollman, 79 NY2d 181, 185 (1992).
A Level Two encounter permits a police officer to ask more pointed questions "that would lead the person approached reasonable to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation." People v. Hollman, 79 NY2d at 185. This common law right of inquiry must be predicated upon "a founded suspicion that criminal activity is afoot." People v. De Bour, 40 NY2d at 223. In a Level Two encounter, an officer may interfere with a citizen to the extent necessary to gain explanatory information, but such interference does not permit a forcible seizure. See People v. De Bour, 40 NY2d at 223.
At the next level of intrusion, a Level Three encounter, a police officer may forcibly stop and detain an individual where the officer "entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor." People v. De Bour, 40 NY2d at 223. See People v. Moore , 6 NY3d 496 , 498-99 (2006); NY C.P.L. § 140.50(1). In this context, a reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. See People v. William II, 98 NY2d 93, 98 (2002). During a Level Three encounter, a police officer is authorized to conduct a limited search of the person, such as a pat frisk of exterior clothing, to search for weapons if the officer reasonably believes that he or she is in danger of physical injury. See People v. Cobb, 208 AD2d 453, 453-54 (1st Dep't 1994); People v. Hill, 171 AD2d 1017 (4th Dep't 1991).
The final, and most intrusive, level of an encounter is an arrest. An arrest is permitted only when the police officer has probable cause to believe that the person has committed a crime or offense in his or her presence. See People v. Moore, 6 NY3d at 498-99. Upon a valid arrest, the police may search a defendant's person and seize items in his or her possession.
When Police Officer Webster approached defendant on the street, he had, at most, the authority to engage in a Level Three encounter. Based on his observations, Officer Webster could reasonably have believed that criminal activity was at hand. See People v. William II, 98 NY2d at 98. Although he did not know whether the cigarette packs he had observed had tax stamps, his observations of defendant exchanging cigarette packs for money constituted sufficient information to cause him reasonably to believe that defendant might have engaged in a crime.
For that reason, Officer Webster was authorized to pat frisk defendant to search for weapons during his Level Three encounter with defendant. During his pat frisk of defendant's exterior clothing, Officer Webster found no weapons. Having pat frisked defendant, Officer Webster had no information suggesting that defendant possessed any weapons. He had no reason to fear that his safety was in jeopardy, or that defendant's shoulder bag, which lay on the ground, contained any weapons. Indeed, Officer Webster did not attempt pat down defendant's bag to feel for weapons.
At that point, lacking probable cause to believe that defendant had committed a crime, Officer Webster was not entitled to conduct a full blown search of defendant. See People v. Diaz, 81 NY2d 106, 109 (1993); People v. Cobb, 208 AD2d at 453; People v. Williams, 217 AD2d 1007 (4th Dep't 1995). To the contrary, once he completed his pat frisk, thereby abating his safety concerns, he was entitled only to continue questioning defendant to determine whether defendant had or was currently engaged in criminal activity. See People v. Diaz, 81 NY2d at 109; People v. Cobb, 208 AD2d at 453; People v. DeJesus, 169 AD2d 521, 522 (1st Dep't), lv denied, 77 NY2d 994 (1991). At that point, therefore, Officer Webster was not constitutionally permitted to reach into defendant's shoulder bag to remove and examine the cigarette pack.
Likewise, the cigarette pack's seizure was not justified on a plain view theory. Under the plain view doctrine, a police officer may seize contraband that is in plain view only when: (1) the police are lawfully in the position from which they see the object; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent. See People v. Brown, 96 NY2d 80, 88-89 (2001). Here, Officer Webster saw only a cigarette pack in defendant's shoulder bag. A person's possession of a cigarette pack is not, in itself, indicative of a crime. Police Officer Webster could not tell, without further investigation, whether the cigarette pack had a tax stamp. Thus, the incriminating nature of the cigarette pack was not immediately apparent, and its seizure was not justified, under the plain view doctrine. See People v. Diaz, 81 NY2d at 110; People v. Rivas, 214 AD2d 996 (4th Dep't), lv denied, 86 NY2d 801 (1995), error coram nobis denied, 231 AD2d 971 (4th Dep't 1996).
Because the seizure of the cigarette pack from defendant's shoulder bag was unlawful, it must be suppressed. Moreover, because defendant's arrest was predicated upon the unlawful seizure of the cigarette pack from his shoulder bag, the subsequent search and seizure of the cigarette packs and currency from his shoulder bag and pants pockets must also be suppressed. See People v. Ortiz , 31 AD3d 1112 , 1113-14 (4th Dep't), rearg denied, 32 AD3d 1246 (4th Dep't), lv denied, 7 NY3d 869 (2006); People v. Thomas , 32 AD3d 869 , 870 (2d Dep't 2006).
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the charge of Cigarette Tax Evasion is denied. Defendant's motion to dismiss the charge of Possession or Sale of Unstamped Cigarette Packs is granted. Defendant's motion to suppress the seizure of the cigarette pack and other items seized from him following his arrest is granted. SO ORDERED.
Even if the initial seizure of the cigarette pack and defendant's subsequent arrest were constitutionally proper, it is questionable whether the post-arrest warrantless search of defendant's shoulder bag was lawful. See People v. Gokey, 60 NY2d 309, 313-14 (1983); People v. Hernandez , 40 AD3d 777 , 778-79 (2d Dep't 2007); People v. Chisolm , 7 AD3d 728 , 729 (2d Dep't 2004). Because of the Court's decision to suppress all the evidence seized in this case, it is unnecessary to decide this issue.