Opinion
July 13, 1984
Appeal from the Ontario County Court, Cicoria, J.
Present — Dillon, P.J., Doerr, Boomer, Green and O'Donnell, JJ.
Order unanimously affirmed. Memorandum: The defendants were indicted for offering a false instrument for filing in the first degree (Penal Law, § 175.35) and evasion of taxes (Tax Law, § 695, subd [a]). The trial court properly dismissed the indictments under section 175.35 Penal of the Penal Law. As a general rule, when two statutes prohibiting criminal conduct overlap, the People have the right to prosecute under either law ( People v Eboli, 34 N.Y.2d 281; People v. Lubow, 29 N.Y.2d 58). This right is limited, however, when legislative intent discloses that the specific statute shall be the "exclusive means of punishing [a] particular [act]" ( People v. Valenza, 60 N.Y.2d 363, 371; see, also, People v. Costello, 305 N.Y. 63). Subdivision (e) of section 695 Tax of the Tax Law states that "[i]f the provisions of this section conflict with those contained in any other law, this section shall control". Section 175.35 Penal of the Penal Law conflicts with subdivision (a) of section 695 in that it provides for different punishment and is governed by a different Statute of Limitations (see CPL 30.10, subd 2, par [b]). Section 175.35 is therefore not available to the prosecution in this instance.