People v. Filacouris

267 A.D.2d 397, 700 N.Y.S.2d 478, 1999 N.Y. App. Div. LEXIS 13240

Opinion

—Appeal by the de fendant 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.

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 wa& 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 NY2d 281; People v Lacay, 115 AD2d 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.