People v. Cioffi , 55 A.D.2d 682 ( 1976 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 19, 1975, convicting him of unlawful possession, etc., of unstamped and unlawfully stamped packages of cigarettes, as a felony, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court, dated March 7, 1975, which, after a hearing, denied defendant’s motion to suppress physical evidence. Judgment and order reversed, on the law and the facts, motion granted, and indictment dismissed. On June 28, 1973 two investigators of the New York State Tax Commission went to a hosiery store pursuant to a complaint. They observed, on a counter, three packages of cigarettes which did not have the requisite New York State tax stamp on them. When the defendant appeared and identified himself as the owner of the store, he was told by the officers that the three packages of cigarettes were illegal. The officers testified that, at the time they told the defendant that the three packages of cigarettes were illegal, they were aware of the fact that it was legal to possess up to two cartons of untaxed cigarettes at any given time. They requested that he give them the rest of the cigarettes. After defendant asked for and was shown the officers’ identification, he proceeded to unlock the door to a room containing more than 1,000 cartons of untaxed cigarettes. The defendant’s motion to suppress the cigarettes as evidence should have been granted. The totality of the circumstances, including the fact that the officers misled the defendant into believing that he had already committed a crime, indicates that the defendant’s consent to the search was merely a submission to authority. Rabin, Acting P. J., Shapiro, Titone and Suozzi, JJ., concur. [81 Misc 2d 1.]