| People v Laughing |
| 2014 NY Slip Op 00267 [113 AD3d 956] |
| January 16, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Plaintiff, v AndrewL. Laughing, Respondent. New York State Department of Taxation and Finance et al.,Appellants. |
—[*1] Daniel S. Pease, Massena, for respondent.
Peters, P.J. Appeal from an order of the County Court of St. Lawrence County(Richards, J.), entered July 3, 2012, which denied motions by the Division of State Policeand the Department of Taxation and Finance to quash subpoenas ad testificandum issuedby defendant.
Defendant and a codefendant were arrested and subsequently indicted for possessionor transportation of unstamped cigarettes in violation Tax Law § 1814 (c) (2) afterState Police discovered over 30,000 unstamped cigarettes in a vehicle they were drivingin St. Lawrence County.[FN1] Defendant moved to dismiss the indictment in furtherance of justice pursuant to CPL210.40, alleging, among other things, that the Department of Taxation and Finance andthe Division of State Police had a forbearance enforcement policy concerning thisprovision of the Tax Law when Native Americans—such ashimself—transported Native American manufactured [*2]cigarettes from one reservation to another within NewYork. In support of the motion, defendant submitted an email sent by Richard Ernst, theDepartment's Deputy Commissioner, to members of the Department's enforcementbureau which, among other things, instructed that "untaxed [N]ative American cigarettes[transported] from one reservation in [New York] to another reservation in [New York]"are not to be seized. The Department conceded that the email memorialized a policy thatwas in effect prior to defendant's arrest and which remained in effect thereafter.Defendant also submitted an email from a State Police investigator documenting a nearlyidentical stop that occurred less than a month prior to his arrest wherein State Police,after making several phone calls, decided not to arrest him or to seize the cigarettesdiscovered in his vehicle. County Court ordered a Clayton hearing (seePeople v Clayton, 41 AD2d 204 [1973]), specifically finding that "the present policyof the . . . Department . . . and of the [Division] with respect toprosecution of unstamped cigarette charges involving alleged Native Americans" wasboth relevant to the resolution of the motion and required further record development.
Defendant thereafter applied for judicial subpoenas duces tecum seeking documentsfrom the Department and the Division related to their respective enforcement of the TaxLaw with respect to cigarettes produced on Native American lands. Following a hearing,County Court denied the motion. Defendant then issued and served subpoenas uponErnst and Robert LaFountain, Captain of the Division, to compel their testimony at theClayton hearing. The Division and the Department thereafter moved to quash thesubpoenas. County Court denied the motions, and this appeal ensued.[FN2]
Initially, the Department and the Division argue that, in denying defendant'sapplication for subpoenas duces tecum on the ground of relevancy, but then subsequentlyupholding the subpoenas that sought to compel the testimony of Ernst and LaFountain,County Court violated the doctrine of law of the case. Even were we to find this assertionto be meritorious, this Court is neither bound nor restricted by that doctrine (see Matter of Joy v Kutzuk, 99AD3d 1049, 1050 [2012], lv denied 20 NY3d 856 [2013]; Matter of Jonathan M., 61AD3d 1374, 1375 [2009]; Frankel v Frankel, 158 AD2d 750, 751 [1990]).
"An application to quash a subpoena should be granted only where the futility of theprocess to uncover anything legitimate is inevitable or obvious or where the informationsought is utterly irrelevant to any proper inquiry" (Anheuser-Busch, Inc. vAbrams, 71 NY2d 327, 331-332 [1988] [internal quotation marks, brackets andcitations omitted]; accordMatter of Hogan v Cuomo, 67 AD3d 1144, 1145 [2009]). The party challengingthe subpoena "bears the burden of demonstrating a lack of authority, relevancy or factualbasis for its issuance" (Matter of Hogan v Cuomo, 67 AD3d at 1145; seeMatter of Congregation B'Nai Jonah v Kuriansky, 172 AD2d 35, 37 [1991],appeal dismissed 79 NY2d 895 [1992]).
Here, defense counsel's authority to issue the subject subpoenas is not disputed(see CPL 610.20 [3]). Furthermore, a factual basis for their issuance was clearlysupplied by Ernst's memo setting forth the [*3]Department's policy of nonseizure of Native Americanmanufactured cigarettes and the documented prior incident in which State Police neitherarrested defendant nor seized the cigarettes he was transporting under nearly identicalcircumstances. Thus, the central issue on this appeal is whether the testimony concerningthe Department's policy and its actual enforcement is relevant to defendant's CPL 210.40motion.
An indictment may be dismissed in the interest of justice where there exists some realand compelling circumstance demonstrating that conviction or prosecution of thedefendant would result in injustice (see CPL 210.40 [1]; People v Banks, 100 AD3d1190, 1191 [2012], lv denied 20 NY3d 1059 [2013]; People v Marrow, 20 AD3d682, 683 [2005]). At the time the instant charge was lodged against defendant, andat present, the taxability by New York of Native American manufactured cigarettes underthe circumstances at play here lacked clarity. It is undisputed that the Department had aforbearance enforcement policy with respect to Native American manufactured cigarettesthat are transported between reservations. Furthermore, defendant asserts that, whenfaced with decisions regarding the applicability and enforcement of the Tax Law tovarious situations involving the possession or transportation of Native Americanmanufactured cigarettes, the Division almost uniformly deferred to the expertise of theDepartment and the primacy of its dealings with the Indian nations. While there can beno question that "it is the prerogative of a District Attorney to prosecute people whocommit crimes," it is equally true that "one of the reforms effected through the years inthe procedure to dismiss accusatory instruments in the interest of justice was to removethe power to do so from the offices of District Attorney and Attorney-General and lodgeit, instead, in the courts alone" (People v Rickert, 58 NY2d 122, 131 [1983]). Tobe sure, the policy of the Department and the issues surrounding the Division's actualenforcement of the Tax Law with respect to Native American manufactured cigarettesmay very well be found insufficient to justify dismissal of the indictment in the interestof justice. Yet, we simply cannot say that the testimony sought on those issues "is utterlyirrelevant" to the question of whether defendant's prosecution here would be unjust(Anheuser-Busch, Inc. v Abrams, 71 NY2d at 332; see People v Rickert,58 NY2d at 130-131 [in dismissing, in the interest of justice, criminal informationscharging the defendant fathers with nonsupport of their children, the court properlyconsidered evidence that the Department of Social Services did not regard thecircumstances of the cases as deserving of even quasi-criminal action available in FamilyCourt]).[FN3] Accordingly, Supreme Court properly denied the motions to quash the subpoenas.
Rose, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: The indictment againstthe codefendant was subsequently dismissed in the interest of justice.
Footnote 2: Inasmuch as theDepartment and the Division were not parties to the underlying criminal action, they mayproperly appeal from the order denying the motion to quash the subpoenas (seeMatter of Cunningham v Nadjari, 39 NY2d 314, 317 [1976]; People v Cruz, 86 AD3d782, 782-783 n 2 [2011]).
Footnote 3: Despite the contentionsof the Department and the Division to the contrary, nothing prohibits County Court fromconsidering an allegation of selective prosecution or enforcement of the Tax Law indeciding whether dismissal of the indictment is warranted in the furtherance of justice(see e.g. People v Riccelli, 149 AD2d 941, 942-943 [1989]; see generallyPeople v Tyler, 46 NY2d 264, 266-267 [1978]).