Opinion
2008KN079061.
4-15-2009
THE PEOPLE OF THE STATE OF NEW YORK v. RAN YANG, Defendant.
The People were represented by Leila Rosini, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, New York. The defendant was represented by Vanessa Pai-Thompson, Esq., Brooklyn Defenders Services, Brooklyn, New York.
The defendant is charged with one count of Attempting to Evade or Defeat the Cigarette and Tobacco Tax (A.C. 11-4012 [a][1]); one count of Attempting to Evade or Defeat the Cigarette and Tobacco Tax (A.C. 11-4012 [B]); one count of Attempting to Evade or Defeat the Cigarette and Tobacco Tax (Tax Law § 1814 [a] [1]); and one count of Unlawful Possession or Transportation of Untaxed Cigarettes for the Purpose of Sale (Tax Law § 1814 [d]). By Notice of Motion served and filed on December 31, 2008, he has moved to dismiss the information as facially insufficient. The People did not respond to this motion by the court's stated deadline of March 20, 2009. For that reason their position on this matter was not considered in this ruling.
The information alleges that on October 21, 2008, at about 5:20 p.m. inside of 155 York Street, in the County of Kings, State of New York, a police officer observed Defendant Yang to be in a kitchen that was located in an area behind a counter during a time when the officer was engaging in a transaction with co-defendant Yan Lin, who also stood behind the counter. The officer gave Yan Lin money in exchange for a package of cigarettes that did not bear the required New York State and New York City tax stamps. The officer then observed Defendant Yang, while behind the counter, "attempt to grab a box containing ten packages of cigarettes" that did not bear the required New York City and State tax stamps.
The cigarette box and packages were recovered and inspected by the officer who, through his professional training and experience, concluded that "the tax stamps contained on the products in this case were not lawful tax stamps required by New York State Law and New York City Law."
The officer also consulted with the New York State Department of Taxation and Finance which confirmed that neither Yan Lin nor Ran Yang "are agents licensed by the Commissioner."
FACIAL SUFFICIENCY
An information is facially sufficient if the factual section of the complaint contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense(s) charged (CPL §§ 100.15; 100.40[1][b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL § 100.40[1][c]; People v. Alejandro, 70 NY2d 133, 135 [1987]). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680 [1999]). While the factual allegations of an information must give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading (see People v. Casey, 95 NY2d 354, 360 [2000]). When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People (see People v. Gonzalez, 184 Misc 2d 262, 708 N.Y.S.2d 564 [App Term, 1st Dept 2000], lv. denied 95 NY2d 835 [2000]). However, conclusory allegations are insufficient (see People v Dumas, 68 NY2d 729 [1986]) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency (Gonzalez, 184 Misc 2d at 264).
New York City Administrative Code § 11-4012 (a)(1) provides that any person who willfully attempts in any manner to evade or defeat any tax imposed by chapter thirteen of this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a misdemeanor. New York City Administrative Code § 11-4012 (b) provides that any person, other than an agent so authorized by the commissioner of finance, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax under chapter thirteen of this title, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of such chapter shall be guilty of a misdemeanor.
Similarly, New York State Tax Law § 1814(a)(1) provides that any person who willfully attempts in any manner to evade or defeat any tax imposed by article twenty of this chapter or the payment thereof shall, in addition to other penalties provided by law, be guilty of a misdemeanor. New York State Tax Law § 1814[d] provides, in relevant part that any person, other than an agent licensed by the commissioner, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax imposed by section four hundred seventy-one of this chapter, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of article twenty of this chapter shall be guilty of a misdemeanor.
The defendant argues that the entire complaint should be dismissed for facial insufficiency because the defendant was never in possession of the contraband cigarettes and did not participate in the sale of untaxed cigarettes to the undercover officer.
Under the New York State Penal Code, to possess means "to have physical possession or otherwise exercise dominion and control over tangible property." PL § 10.00 (8). Possession may be either actual or constructive possession. Constructive possession, requires a showing "that the defendant exercised dominion and control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v. Fernandez, 270 AD2d 91 (1st Dept. 2000); People v. Manini, 79 N.Y.2d561, 569 (1992); People v. Pearson, 75 NY2d 1001 (1990); People v. Brown, 240 AD2d 675 (2nd Dept. 1997); People v. Dawkins, 136 AD2d 726 (2nd Dept. 1988).
It is also noted that under the Penal Law, in order to exercise "dominion and control" over an item; the item must be "'within [his] immediate control and reach'", and be "'available for unlawful use if he so desires'". People v. Lynch, 116 AD2d 56 (1st Dept. 1986) citing People v. Lemmons, 40 NY2d 505 (1976), quoting People v. Persce, 204 NY 397 (1912); P.L. § 10.00 [8].) Here, the facts as stated in the complaint clearly demonstrate that the box of cigarette packages was within Defendant Yang's immediate physical control and reach, and that he exercised such control by attempting to grab the box.
The complaint states that defendant Yang attempted "to grab a box containing ten packages of cigarettes that did not bear the required New York State and New York City tax stamps from behind the counter." His very actions showed a proprietary interest in the box full of untaxed cigarette packs.
The fact that the co-defendant, Yan Lin was the person who actually participated in the hand-to-hand transaction with the undercover police officer does not make him the sole possessor of the contraband cigarettes. It is possible for possession to be joint. See People v. Hyde, 302 AD2d 101 (1st Dept. 2003); People v. Manini, 79 NY2d 561 (1992). Defendant Yang's "knowing possession" could be established by the fact that the box was in open view in an unobstructed space taken together with his close proximity to the box of contraband cigarettes at the time of the sale. See People v. Elhadi, 304 AD2d 982 (3rd Dept. 2003). Further, the fact that the undercover officer was able to see Defendant Yang "in the kitchen" when the officer approached the counter tends to show that sale transaction between the undercover officer and the counterman was also within Defendant Yang's realm of sight and hearing. It could be reasonable for a jury to conclude that Defendant Yang was someone from whom this transaction need not be hidden and that he was not ignorant regarding what was occurring, or what was inside the subject box.
From the facts as stated in the complaint, a jury could reasonably infer that Defendant Lin and Defendant Yang "shared direct access to, and dominion and control over", the box of cigarette packages. United States v. Booker, 436 F.3d 238 citing Curren v. United States, 494 U.S. 1019 (1990). In contrast, courts have held that it would be insufficient evidence to support constructive possession of a gun where "it was physically impossible for the defendant to grab" the contraband during the subject transaction. In re Sealed Case, 323 U.S. App. D.C. 128 (D.C. Cir. 1997). Such was not the case here.
The defendant cites People v. Pearson, 75 NY2d 1001 (1990) and People v. Williams, 135 AD2d 763 (1987) to support his position that the fact that he was in the location at the time of the investigation and arrest is not enough to establish a prima facie case for these charges. However, this is not a matter involving "mere presence" as the defendant asserts, and these cases are inapplicable. In the Pearson case the defendant was seen walking out the back door of a store where contraband was found. Mr. Pearson was not said to be seen in the vicinity of the transaction or seen to be trying to obtain the contraband. Similarly in Williams, the defendant had been a sometime guest who just happened to be discovered in the same room with the contraband. By contrast, in the instant case Defendant Yang actively and aggressively attempted to grab the box of cigarettes during or immediately after the sale. It would have been an entirely different matter if the defendant had stayed in the kitchen and never acknowledged that the cigarettes even existed.
The defendant also argues that the complaint fails to set forth facts that would give rise to an inference that Defendant Yang possessed the cigarettes with intent to sell them. When evaluating whether an accusatory instrument alleges facts sufficient to infer defendant's intent to offer for sale illicit goods, a court may consider such factors as the nature and number of goods offered, the manner in which the goods were displayed, the defendant's interaction with the public as well as the goods, the length of time that the defendant engaged in the conduct, and the time and place of the alleged conduct (see People v Montanez, 177 Misc 2d 506, 510-511 [Crim Ct, NY County 1998]; People v Abdul, 157 Misc 2d 511, 514 [Crim Ct, NY County 1993]; People v Diouf, 153 Misc 2d 887, 890 [Crim Ct, NY County 1992]; People v Sylla, 154 Misc 2d 112, 115-116 [Crim Ct, NY County 1992]). As stated above, it could be reasonably concluded that Defendant Yang was within sight and hearing of the sale that took place between the counterman and the undercover police officer. This taken together with the allegation that the officer observed the defendant attempt to grab the box of contraband at the time that the officer was investigating the sale of untaxed cigarettes could reasonably lead a jury to conclude that the defendant was aware of the nature of the contents of the box and the substance of the exchange occurring between Defendant Lin and the undercover officer. Therefore, this tends to show that Defendant Yang was indeed aware of and even involved in the sale of cigarettes at that location. As previously stated, a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency (People v. Gonzalez, Id. at 264). It seems logical to conclude that Defendant Yang could very well had acted out of concern about the fact that untaxed cigarettes could be confiscated by the police and used against him and Defendant Lin in a prosecution. While it is not necessary to know the defendant's specific intent or motivation since that would be an issuer for the trier of fact, it is still instructive in determining whether it would be reasonable to conclude that he was involved in the sale of contraband cigarettes and thereby attempting to avoid paying a tax on such sales.
Again, facial sufficiency does not require that the accusatory instrument prove the defendant's guilt beyond a reasonable doubt, not does it require that the defendant's motive for his actions be proven within the four corners of the complaint. (People v Henderson, Id. at 680). The Information is facially sufficient if the factual section of the complaint contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offenses charged (CPL §§ 100.15; 100.40[1][b]).
The defendant further argues that the complaint fails to set forth facts that would "give rise to an inference that Mr. Yang willfully attempted to evade or defeat payment of tax." As stated above, this court finds that the facts as set forth in the complaint are sufficient to show that the defendant possessed the untaxed cigarettes and that he possessed them with the intent to sell them. The fact that the cigarettes did not bear the required New York City and State tax stamps, together with the fact that the defendant was not an agent of the State Department of Taxation gives reasonable cause to believe that Defendant Yang did not intend to see to it that New York State received any payment for the taxes due on the sale of the cigarettes in question.
Additionally, the defendant cites People v. Tracy, 1 Misc 3d 308 (City Ct, Jefferson County, 2003) to support his position that the information is facially insufficient because it fails to allege that the twenty-four hour time period to pay the use tax, during which a person may possess untaxed cigarettes without violating the statute, had expired.
New York State Tax § 471-a does provide a presumption that untaxed cigarettes and tobacco products are subject to the tax until the person in possession of them proves otherwise, and requires that the tax imposed on cigarettes be paid within twenty-four hours. See, New York State Tax Law § 471-c. However New York State Tax § 471-a clearly maintains that the tax imposed on such cigarettes is a "use tax". In defining the term "use", the statute specifically states that term "shall not include possession for sale". [Emphasis Added]. See, People v. Zheng, 2005 NY Misc. LEXIS 3446; 234 N.Y.L.J. 41.
The defendant in Tracey was arrested moments after the delivery to his home of untaxed cigarettes from an Indian reservation, which is permitted to sell untaxed cigarettes. It was determined that the defendant had made these purchases for their personal consumption, or "use". The court held that New York State Tax Law § 1814[a][1] was inapplicable during the twenty-four hour period within which a use tax is allows the purchasers twenty-four hours in which to settle their obligations. This is especially applicable when, as in this case, law enforcement has personal knowledge of when that period commenced. (See Tracey, 1 Misc 3d at 314). However, in the instant case, the allegation is that the defendant was involved with the actual sale of untaxed cigarettes in exchange for United States Currency and was immediately found to be in possession of a box of unstamped cigarettes provide immediately after a sale of a package of unstamped cigarettes. This plainly shows that the defendant intended to sell untaxed cigarettes, since he and his co-defendant had just done so successfully. It would be reasonable for a jury to conclude that the untaxed cigarette packages inside the recovered box were also intended to be sold.
Here, the defendants were acting as sellers and was possessing the cigarettes for sale, as opposed to personal use, as was the case in Tracey. The Defendant Yang and Mr. Lin possessed a box of cigarettes packages, ostensibly to sell them to the public. The cigarettes were untaxed. A sale was made to an undercover police officer and the defendants received a sum of money during the transaction. The facts as stated in the complaint allege that the defendant evaded the payment of cigarette taxes during the execution of the very act of selling the cigarettes. Therefore, the twenty-four hour rule does not apply here. People v. Zheng, Id; New York State Tax § 471-a.
Based upon the foregoing, this court finds that the factual allegations in the instant information give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried for the same (Casey, 95 NY2d at 360).
The defendant's motion to dismiss the information for facial insufficiency is denied in its entirety.
This opinion constitutes the decision and order of the court.