People v. Ricchiutti

82 Misc. 2d 399, 370 N.Y.S.2d 337, 1975 N.Y. Misc. LEXIS 2648

Opinion

Richard C. Delin, J.

The defendant is charged with a felony under the Tax Law. He now moves to strike the District Attorney’s statement which alleges that he is a second felony offender. (See Penal Law, § 70.06; CPL 400.21.)

Section 70.06 (subd 1, par [a]) of the Penal Law provides that a second felony offender is "a person who stands convicted of a felony deñned in this chapter” (emphasis supplied). Possession of untaxed cigarettes as a felony is not defined in the Penal Law. Under the established rules of statutory construction and the self-evident language of the statute, the instant offense is not subject to the increased penalties of section 70.06.

Accordingly, the defendant’s motion is granted. It is, so ordered.