People v. Fratto

Appellate Division of the Supreme Court of New York

People v. Fratto

103 A.D.2d 1000, 478 N.Y.S.2d 208, 1984 N.Y. App. Div. LEXIS 19673

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 1984

StatusPublished

Cited by1 cases

This text of 103 A.D.2d 1000 (People v. Fratto) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fratto, 103 A.D.2d 1000, 478 N.Y.S.2d 208, 1984 N.Y. App. Div. LEXIS 19673 (N.Y. Ct. App. 1984).

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Opinion

— 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 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 NY2d 281; People v Lubow, 29 NY2d 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 NY2d 363, 371; see, also, People v Costello, 305 NY 63). Subdivision (e) of section 695 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 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. (Appeal from order of Ontario County Court, Cicoria, J. — dismiss indictment.) Present — Dillon, P. J., Doerr, Boomer, Green and O’Donnell, JJ.

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— 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 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 NY2d 281; People v Lubow, 29 NY2d 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 NY2d 363, 371; see, also, People v Costello, 305 NY 63). Subdivision (e) of section 695 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 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. (Appeal from order of Ontario County Court, Cicoria, J. — dismiss indictment.) Present — Dillon, P. J., Doerr, Boomer, Green and O’Donnell, JJ.

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Bluebook (online)

103 A.D.2d 1000, 478 N.Y.S.2d 208, 1984 N.Y. App. Div. LEXIS 19673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fratto-nyappdiv-1984.

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