People v. Filacouris

745 N.E.2d 378, 95 N.Y.2d 940, 722 N.Y.S.2d 459, 2000 N.Y. LEXIS 3808

Opinion

OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Defendants underreported the amount of liquor they sold, over a four-year period, at their family store in Long Island. As a result, they collected over $200,000 in sales taxes that they did not remit to the State. Each defendant was convicted of 15 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35) arising out of the submission of false tax returns, one count of grand larceny in the second degree (Penal Law § 155.40 [1]), and one count of filing a false sales and compensating use tax return (Tax Law § 1817 [b] [1]). The Appellate Division modified the judgment by dismissing each defendant’s conviction on the Tax Law count, and otherwise affirmed.

Defendants contend that the jury verdict convicting them of offering a false instrument for filing, and acquitting them of several Tax Law counts of filing false sales and compensating use tax returns, is repugnant. Their claim is meritless. Since the jury could have found that defendants offered the false returns for filing but did not “make[] and subscribe [ ]” them (Tax Law § 1817 [b] [1]), defendants’ acquittal of the Tax Law counts was not “conclusive as to a necessary element” of the offering a false instrument for filing charges (see, People v Tucker, 55 NY2d 1, 7).

The People have not cross-appealed. Therefore, the Appellate Division’s dismissal of the one Tax Law violation of which defendants were convicted is not before us.

Defendants’ remaining contentions are unpreserved.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Orders affirmed in a memorandum.