Opinion
Argued November 16, 1999
December 20, 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.
Cobb Cobb, Tuxedo, N.Y. (John W. Cobb of counsel), for appellant.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (Robin A. Forshaw of counsel), for respondent.
THOMAS R. SULLIVAN, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ.
DECISION ORDER
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 ; People v. Lacay, 115 A.D.2d 450 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
SULLIVAN, J.P., FRIEDMANN, FEUERSTEIN, and SMITH, JJ., concur.