Taub v. Altman

The Legislature has provided that an offense may be prosecuted in a county when, “[e]ven though none of the conduct constituting such offense may have occurred” there, “[s]uch conduct had, or was likely to have, a particular effect upon such county . . . , and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” (CPL 20.40 [2] [c]). Further, a “particular effect” is defined as a “materially harmful impact upon the governmental processes or community welfare of’ the county seeking to assert jurisdiction (CPL 20.10 [4]). This appeal asks us to decide whether the People established a “particular effect” in New York County with respect to those five counts of the indictment which charged petitioners with evasion of city taxes.

*41As recognized in People v Fea, “[e]xtraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (47 NY2d 70, 76-77 [1979]). Significantly, the majority acknowledges that “[c]learly,” petitioners violated a “statute [Penal Law § 175.35] . . . intended to protect the integrity of governmental processes” (majority op at 37). The majority concludes, however, that the necessary “particular effect” is lacking here because it is not enough that New York County is the seat of New York City government (majority op at 35, 39). It is hard to imagine, though, that the Legislature intended to preclude the county in which city government is situated from prosecuting city tax cheats. Surely, evading city taxes affects the “governmental processes or community welfare” of New York County as contemplated by CPL 20.40 (2) (c). Nor can it be said that petitioners (especially petitioner Taub, who had practiced as a tax attorney) should be surprised to face prosecution in New York County. Put differently, by allegedly evading city taxes, he would have had “knowledge that [his tax evasion] was likely to . . . have [a] particular effect” (CPL 20.40 [2] [c]) in the county where his city taxes were required to meet the City’s financial obligations and to operate city government; namely, New York County.

Further, the quantifiable revenue loss here is precisely the type of “concrete and identifiable injury” required in Matter of Steingut v Gold (42 NY2d 311, 318 [1977]). During a meeting in New York County, a public official offered to use his official position to benefit a corrupt businessman in exchange for the latter’s promise to hold a fundraising event for a campaign occurring in Kings County (see id. at 313-314). We found venue lacking in Kings County because there was absolutely no evidence that the election had been tainted. That is, the gravamen of the crime charged in Steingut was really the quid pro quo, which occurred entirely in Manhattan, and could just as easily have been a promise by the businessman to give the public official tickets to a sporting event, rather than an offer to hold the fundraiser. Here, by contrast, the People adduced evidence before the grand jury of the exact amount of city taxes allegedly evaded by petitioners.

Fea is likewise distinguishable from this case. In Fea, the People failed to adduce evidence that the defendant’s conduct had any actual impact on the county (Bronx) asserting venue: *42the defendant loanshark beat a delinquent debtor in Rockland County to assure resumption of payments in Bronx County (see People v Fea, 47 NY2d at 73-74). Moreover, the defendant had not been charged with violating a statute designed to protect governmental processes (see id. at 76-77).

The main stumbling block for the majority appears to be that revenue loss from city tax evasion affects all of the City’s counties (majority op at 38). But we have never before required a particular effect to be a unique effect (see Steingut, 42 NY2d at 317). Moreover, while the majority may consider it undesirable for multiple counties to have jurisdiction over a single offense, the Legislature clearly contemplated that eventuality. As the Commission Staff Notes observe, “[i]n general, . . . multiple county jurisdiction is bestowed more liberally than state jurisdiction” (Commission Staff Notes, reprinted following CPL 20.40 in NY Cons Laws Serv, Book 7, at 109).1

In addition, the potential for prosecution in multiple jurisdictions does not prejudice a defendant. We have recognized, for example, that under the jury trial guarantee of article I, § 2 of the State Constitution, a criminal defendant has the right “to be tried in the county where the crime was committed unless the Legislature has provided otherwise” (People v Ribowsky, 77 NY2d 284, 291 [1991] [emphasis added]). Furthermore, a defendant who faces potential prosecution by multiple counties will, in fact, be prosecuted only once: constitutional protections against double jeopardy, as well as the even more protective statutory bars against multiple prosecutions (see CPL art 40), *43safeguard a defendant against multiple prosecutions for the same offense.2

The majority worries that allowing venue here might inspire the New York County District Attorney to assert jurisdiction over cases where, for example, a toll collector embezzles in the Bronx; or a person steals from a city agency in Kings County or vandalizes city property in Queens or Richmond Counties. Perhaps, the majority suggests, the Albany County District Attorney might be tempted to assert jurisdiction over similar cases of theft or vandalism that diminish state revenues or cause state expenditures (majority op at 35-36). Assuming these District Attorneys would desire to expend limited resources on the prosecutions hypothesized by the majority, the statutes at issue here would preclude them from doing so.

The majority’s hypothetical examples are crimes that, like tax evasion, are committed against a government and adversely affect government revenues. Unlike offering a false instrument for filing, however, these crimes are not “violative of a statute intended to protect the integrity of the governmental processes” (People v Fea, 47 NY2d at 76-77). On the contrary, the majority’s hypothetical examples are garden-variety larcenies or criminal mischief. Such thefts and vandalism do not fall within the category of crimes susceptible to extraterritorial jurisdiction.3

*44Further, the majority’s hypothetical examples are readily prosecuted in the county where the defendant committed the crime. After all, the geographic location of vandalism or a theft is obvious. Accordingly, venue for the majority’s examples would lie in the county of occurrence under CPL 20.40 (1) (a), which provides venue over an offense when a defendant’s “[c]onduct . . . within such county [is] sufficient to establish . . . [a]n element of such offense.”

Under the majority’s reading of the injured forum statutes, however, it has become immeasurably more difficult, if not impossible, to prosecute the evasion of city taxes (except city sales taxes)4 within the City of New York. Venue will still lie within the county in which the false filing was either executed or mailed (majority op at 39). As this case illustrates, however, it is not always easy to determine years after the fact where a defendant executed or mailed a false tax return. Indeed, according to the People, “an attempt to ground venue in any county on the basis of execution or mailing would be an exercise in futility—even under the ‘preponderance of the evidence’ standard applicable to issues of county venue.” For example, in this case “there was no direct evidence establishing where [petitioner] Taub was when he signed and mailed the returns.”

The majority has therefore effectively designated the county where the false instrument was filed as the sole certain venue for prosecuting evaders of New York City income taxes (see Matter of Sharpton v Turner, 169 AD2d 947, 950 [3d Dept 1991]).5 The New York State Department of Taxation and Finance, which administers the New York City resident income tax, requires a taxpayer to file a combined state and city resident income tax return (see Tax Law § 1312 [c]; 20 NYCRR 292.1). The Department has directed taxpayers to file these combined returns at an address in Albany County if using the United States Postal Service, or at an address in Ulster County if using *45a private delivery service (see www.nystax.gov [IT-100-I (Instructions), at 6]).

In short, city income tax cheats may be prosecuted in a county where city tax collection functions have been centralized for reasons of administrative and taxpayer convenience; they may not be prosecuted in New York County, which is the seat of city government, even though a shortfall in city revenues adversely affects the city government’s ability to meet its financial obligations and deliver city services. In our view, a fair reading of the injured forum statutes would avoid this anomalous result. Accordingly, we respectfully dissent from the majority’s conclusion that venue does not lie here, and would affirm the judgment of the Appellate Division denying petitioners’ request for prohibition.6

Judges G.B. Smith, Ciparick, Rosenblatt and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to affirm in a separate opinion in which Judge Graffeo concurs.

Judgment reversed, etc.

. The majority points out that District Attorneys initially complained that multicounty jurisdiction would apply too broadly, with every county potentially having jurisdiction over bank robberies or burglaries, for example, no matter where committed (majority op at 37). Admittedly, the Commission Staff Notes preceded those complaints. Yet, the injured forum provision was revised, not jettisoned. Further, the revisions designed to address the District Attorneys’ comments—especially, defining “particular effect” to necessitate an impact on “governmental processes”—argue for venue here. Nor are the District Attorneys of the other four counties within New York City likely troubled by New York County’s exercise of venue over this tax evasion case (see Wise, Funds Recovered in Tax Cases Soften Blows to DAs’ Budgets, NYLJ, May 10, 2004, at 1, cols 4, 5, at 7, col 1 [describing program to offset budget cuts to the five District Attorneys’ offices by allowing them to “keep part of the taxes recovered through criminal prosecutions” of “tax cheats and others who commit financial crimes”; and noting that the New York County District Attorney’s office “agreed to make ... its recoveries available to other counties,” which allowed the other four District Attorneys—via a transfer of almost $14,000,000 from New York County—to recover current year budget cuts]).

. Petitioners’ litigation strategy undercuts any argument that multiple-county jurisdiction works to a criminal defendant’s detriment. The net effect of obtaining prohibition here is that petitioners have willingly exposed themselves to prosecution in multiple counties. Specifically, New York County will continue prosecuting the 29 remaining counts of the indictment, and petitioners now face (as they conceded at oral argument) the prospect of prosecution elsewhere on the five tax-related counts.

. The crime charged against petitioners—offering a false instrument for filing in the first degree—occurs when a person “knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, . . . offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation” (Penal Law § 175.35). As the majority acknowledges, this statute is “intended to protect the integrity of governmental processes,” as called for in Fea to support extraterritorial jurisdiction (see Fea, 47 NY2d at 77; majority op at 37). In stark contrast, “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). Criminal mischief of any degree is similarly bereft of any lan*44guage protecting governmental processes, and simply calls for an “intent to damage property of another person” (Penal Law § 145.05).

. Interestingly, the New York State Department of Taxation and Finance, which administers the New York City sales and use tax, has designated a location in New York County as the mailing address for filing all New York State and Local Quarterly Sales and Use Taxes Returns (see www.nystax.gov [Form ST-100]).

. The majority has also encouraged New Yorkers to execute and mail their tax returns from out of state in order to minimize their exposure to prosecution for tax evasion.

. The majority emphasizes that petitioners still face numerous other charges, some of which carry stiffer penalties than the tax-related counts at issue here (majority op at 32). This strikes us as irrelevant. The People should be allowed to pursue the full case against petitioners. This is surely what was intended by the Commission for Quality of Care, which brought these matters to the New York County District Attorney’s attention, and the New York State Department of Taxation and Finance, which recommended that the New York County District Attorney commence a grand jury investigation into petitioners’ possible tax crimes and false filings. Further, petitioners might face consecutive sentencing if convicted for falsely reporting income on separate years’ returns.