Defendant is charged with the crime of false advertising under section 202-a of the Agriculture and Markets Law, which states in part: False Advertising. 1. An advertisement concerning a food or food product shall not be false or misleading in any particular.
The evidence is clear and convincing that, on January 29, 1971, at its Suffern store, defendant sold various, specified food products at prices higher than those advertised by defendant in newspapers circulated in Suffern on January 27,1971.
However, the very section which provides criminal jurisdiction for violations of the Agriculture and Markets Law (§ 41) takes it away in this case. ‘ ‘ Violation of chapter A misdemeanor. Except as otherwise provided by the penal law, a person who by himself or another violates any of the provisions of this chapter or of any other law the enforcement of which is within the jurisdiction of the department, is guilty of a misdemeanor, and ”. This is so because the Penal Law contains section 190.20 (false advertising) which explicitly defines and proscribes the elements of the criminal activity of false advertising. Those elements are not coextensive with the elements of section 202-a of the Agriculture and Markets Law.
Defendant’s motions to dismiss are now granted, and the information is dismissed.