                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   105234
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JUAN REYNOSO-FABIAN, Also
   Known as CARLOS,
                    Appellant.
________________________________


Calendar Date:   October 15, 2015

Before:   Garry, J.P., Egan Jr., Rose and Clark, JJ.

                             __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered August 22, 2012, upon a verdict
convicting defendant of the crimes of criminal possession of a
forged instrument in the first degree (10 counts) and willful
possession of cigarettes in packages bearing false, altered or
counterfeited stamps.

      In March 2011, defendant was charged in an amended 13-count
indictment with numerous crimes, including criminal possession of
a forged instrument in the first degree (10 counts) and willful
possession of cigarettes in packages bearing false, altered or
counterfeited stamps. The charges stemmed from an August 27,
                              -2-                105234

2010 investigation and regulatory search of a variety store
located on Central Avenue in the City of Albany, during the
course of which investigators discovered, among other things, 10
sheets of counterfeit cigarette tax stamps. A search of
defendant's vehicle on this date also revealed, among other
things, packages of cigarettes bearing counterfeit tax stamps.
Thereafter, in November 2011, defendant was charged in a separate
indictment with a single count of criminal possession of a forged
instrument in the first degree arising out of an October 16, 2011
incident wherein defendant attempted to sell cigarettes bearing
counterfeit tax stamps to another local convenience store. The
People's subsequent motion to consolidate the indictments was
granted, and the count contained in the November 2011 indictment
became count 14 of the amended indictment.

      Following the denial of defendant's motions to suppress,
among other things, the physical evidence seized in August 2010,
the matter proceeded to trial, during the course of which
defendant testified upon his own behalf. At the conclusion of
the trial, the jury found defendant guilty of criminal possession
of a forged instrument in the first degree (counts 1 through 10)
and willful possession of cigarettes in packages bearing false,
altered or counterfeited stamps (count 11) and acquitted
defendant of the remaining charges. Defendant's subsequent
motion to set aside the verdict was denied, and defendant
thereafter was sentenced to an aggregate prison term of 3½ to 10½
years followed by a period of postrelease supervision. Defendant
now appeals.

      Defendant initially contends that County Court erred in
denying his various suppression motions, including his motion to
suppress the physical evidence seized at the variety store and
from his vehicle on August 27, 2010 and a subsequent
identification made of him with respect to the October 16, 2011
transaction. As to the August 2010 search of the variety store,
although both defendant and the People have briefed this issue
utilizing the standard probable cause analysis, the investigators
testified, and County Court found, that the search of the
premises constituted a regulatory search under Tax Law § 474 (4).
In this regard, the statute authorizes the Commissioner of
Taxation and Finance "to examine the books, papers, invoices and
                              -3-                105234

other records of any person in possession, control or occupancy
of any premises where cigarettes or tobacco products are placed,
stored, sold or offered for sale, . . . as well as the stock of
cigarettes or tobacco products in any such premises or vehicle"
(Tax Law § 474 [4]; see generally People v Quackenbush, 88 NY2d
534, 541-542 [1996]). Where, as here, the stock to be inspected
and examined is located at a retail outlet where cigarettes are
sold, the investigators may "insist[], in a nonforcible manner,
on entry into a locked storeroom, provided they reasonably
believe[] it contain[s] cigarettes" (People v Rizzo, 40 NY2d 425,
429 [1976] [citation omitted]; see People v Sciacca, 45 NY2d 122,
128 [1978]). The authority to conduct an administrative search
of this nature "must be carefully limited in time, place and
scope" (People v Rizzo, 40 NY2d at 428) and does not extend to
areas where the investigators have no reason to believe that
"controlled activity [is] taking place" (People v Sciacca, 45
NY2d at 128). Hence, our inquiry distills to whether the
investigators here exceeded the scope of the authority conferred
upon them by Tax Law § 474 (4).

      Anthony Vona, a criminal investigator for the Department of
Taxation and Finance, testified that the Department received a
complaint from an industry source that the variety store "had
untaxed cigarettes in the back of the store" and that someone
there was "stamping their own cigarettes with counterfeit
stamps." Upon arriving at the location with fellow investigator
Holly Stah, Vona spoke with defendant, who identified himself as
the owner of the store and indicated that no one else was on the
premises. As Stah spoke with defendant about obtaining invoices
for the products located behind the counter, Vona walked to the
rear of the store, where he observed a partition and a door
leading to a back room. Through a gap in the door frame, Vona
saw a quantity of brand-name cigarettes on the floor. When Vona
informed defendant that he would need access to the back room,
defendant's demeanor immediately changed; according to Vona,
defendant became very nervous, began making phone calls – in
Spanish – where cigarettes were discussed, changed his status
from store owner to store manager, claimed that the back room was
locked and instructed the investigators that they would need to
return later when the owner arrived with a key.
                              -4-                105234

      Vona and defendant then walked to the rear of the store,
where Vona stated to defendant, "[L]ook, I can see cigarettes
clear[ly] in this back room; you're going to need to open this
door." As this conversation was taking place, Vona heard
movement in the room; defendant then opened the door – without a
key – and Vona discovered another individual, identified by
defendant as his "helper," in the back room.1 The cigarettes
that Vona had observed only moments earlier were now covered by a
blanket or clothing;2 when this covering was removed, Vona found
a "master case" of cigarettes, which defendant – as a retailer –
was not authorized to have, as well as another half case of
cigarettes, for a total of 90 cartons of cigarettes. Vona
removed one of the cartons and confirmed that it did not bear the
required tax stamp. At this point, defendant's anxiety increased
and he began pacing, prompting Vona to contact his supervisor to
report the results of the inspection and to relay his concerns
regarding defendant's behavior. Citing defendant's erratic
behavior and resulting safety concerns, Vona briefly placed
defendant in handcuffs until backup could arrive. As the search
continued to unfold, investigators discovered, among other
things, additional cases of untaxed cigarettes, as well as an
iron that was believed to have been used to affix counterfeit tax
stamps, in the back room. The counterfeit tax stamps themselves
were discovered in a half bathroom immediately adjacent to the
back room where the untaxed cigarettes were found and other



    1
        Vona subsequently testified at trial that he could not
recall whether it was defendant or his helper, identified as
Donatilo Tolantino, who opened the door. Additional trial
testimony also established that defendant made a series of phone
calls to Tolantino after the investigators arrived at the store.
    2
        Vona expanded on this discussion at trial, describing how
– when he gained access to the room — the cigarettes that he had
seen through the crack in the door "all of a sudden . . . were
gone." When Vona asked what had happened to the cigarettes,
neither defendant nor Tolantino responded, after which Vona
lifted up a blanket lying on the floor and discovered the missing
product.
                               -5-                 105234

merchandise packaged for sale was being stored.3

      Inasmuch as defendant was "operating a retail outlet where
cigarettes were sold openly and notoriously[, the investigators
were authorized] . . . to enter the premises and inspect the
cigarettes for possible fraudulent stamping" (Mubarez v State of
New York, 115 Misc 2d 57, 59-60 [Ct Cl, 1982]; see People v
Rizzo, 40 NY2d at 428-429). While lawfully on those premises,
Vona observed a quantity of cigarettes – in plain view – through
a crack in the door leading to a back room, which was a "logical
place to keep such additional stock" (Mubarez v State of New
York, 115 Misc 2d at 60). Vona's observations, coupled with
defendant's nervous demeanor, misrepresentations and suspicious
behavior, provided the investigators with a reasonable basis upon
which to demand access to this storage area – where, among other
things, a quantity of untaxed cigarettes were discovered.
Although the counterfeit tax stamps themselves were located in a
half bathroom off of this storage area, the half bathroom was
immediately adjacent to the back room; additionally, Stah
testified that the half bathroom was – based upon her
observations – "probably not being used" for its intended purpose
and, further, that the counterfeit tax stamps were recovered from
the "same general area" as, among other things, the untaxed
cigarettes. Under these circumstances, we do not find that the
investigators exceeded the permissible scope of their regulatory
search (see People v Sciacca, 64 AD2d 677, 680 [1978]; see also
Mubarez v State of New York, 115 Misc 2d at 59-60; compare People
v Sciacca, 45 NY2d at 128-129; People v Rizzo, 40 NY2d at 429-
430). Accordingly, County Court properly denied defendant's
motion to suppress the evidence seized from the variety store.

      As for the subsequent search of defendant's van, one of the
investigators testified at the suppression hearing that, although
defendant initially refused a request to search his vehicle, he
thereafter signed a written consent to search – a consent that
the investigator read to defendant in its entirety in order to


     3
        Subsequent trial testimony also documented the discovery
of empty master case boxes stored behind the toilet in this
bathroom.
                              -6-                105234

ensure that he understood the contents thereof, including that
portion of the document advising defendant that he was not
required to consent to a search of the vehicle. County Court
credited the investigator's testimony on this point and, upon
reviewing the transcript of the suppression hearing, we are
satisfied that the People met their burden of establishing "that
the consent was freely and voluntarily given based on the
totality of the circumstances" (People v Williford, 124 AD3d
1076, 1078 [2015], lv denied 25 NY3d 1209 [2015]).4

      Nor are we persuaded that the photographic array shown to
the individual to whom defendant allegedly sold cigarettes on
October 16, 2011 was unduly suggestive. Preliminarily, we note
that defendant was acquitted of the charge relative to this
incident, and the witness in question offered no testimony beyond
the confines of this transaction. Hence, we are hard pressed to
discern the impact of the allegedly flawed identification
procedures upon defendant's convictions. That said, upon
reviewing the testimony offered at the suppression hearing
detailing the manner in which the array was prepared and
presented to the witness in question, as well as the array
itself, we are satisfied that the People met their initial burden
of "establish[ing] the reasonableness of the police conduct and
the lack of any undue suggestiveness in [the] pretrial
identification procedure" employed (People v Smith, 122 AD3d
1162, 1163 [2014] [internal quotation marks and citations
omitted]; see People v Lanier, 130 AD3d 1310, 1312-1313 [2015],
lv denied ___ NY3d ___ [Oct. 29, 2015]; People v Matthews, 101
AD3d 1363, 1364 [2012], lvs denied 20 NY3d 1101, 1104 [2013]).
We are equally satisfied that defendant thereafter failed to meet
his ultimate burden of demonstrating that the procedure utilized
was unduly suggestive (see People v Lanier, 130 AD3d at 1313;
People v Matthews, 110 AD3d at 1364). Indeed, "[t]he physical
characteristics of the people included in the [subject] array are
sufficiently similar and the variations [are] not such as to


    4
        The written consent to search form contained in the
record on appeal – dated September 1, 2010 – does not appear to
be the form that defendant executed in Stah's presence on August
27, 2010.
                              -7-                105234

create a substantial likelihood that . . . defendant would be
singled out for identification" (People v Matthews, 101 AD3d at
1364 [internal quotation marks and citation omitted]).
Accordingly, defendant's motion to suppress the identification
was properly denied.

      As for County Court's Sandoval and Molineux rulings,
defendant – as so limited by his brief – ascribes error to the
admission of evidence regarding (1) his 2008 arrest for, among
other things, possession of untaxed tobacco, (2) an allegedly
fake sublease for the variety store entered into between
defendant's purported girlfriend and a third party, and (3) his
October 2011 sale of untaxed cigarettes to one of the witnesses
who testified at trial. With respect to defendant's 2008 arrest
in Schenectady County, County Court ruled that the People could
inquire as to whether defendant possessed untaxed tobacco for
sale on the date in question, but that the People could not imply
that defendant actually had been arrested, and no mention could
be made of the subsequent disposition of those charges.
Defendant raised no objection in this regard at the suppression
hearing, stating that there were reasons why the defense would
wish to explore this issue at trial, nor did he raise any
objection when this testimony was elicited at trial.
Accordingly, we deem this issue to be unpreserved for our review
(see People v Tinning, 142 AD2d 402, 406 [1988], lv denied 73
NY2d 1022 [1989]).5

      With respect to the testimony that defendant sold untaxed
cigarettes to another convenience store owner on October 16,
2011, three points are worth noting. First, defendant did not
raise a Molineux objection to such testimony at trial, nor did he
request any sort of limiting instruction. Additionally, even


    5
        We note in passing that shortly after reference to this
incident was made at trial, County Court gave an appropriate
limiting instruction to the jury, stating that the jury could
consider such proof only as to the issue of identification and
that any testimony on this point could not be used to establish
that defendant had a propensity to commit the crimes charged in
the consolidated indictment.
                              -8-                105234

accepting defendant's premise that such testimony constituted
proof of an uncharged crime, which we do not, we are satisfied
that this testimony would fall within any number of the
recognized Molineux exceptions – including absence of mistake
(see People v Molineux, 168 NY 264, 293 [1901]). Finally,
inasmuch as defendant was acquitted of the charge to which this
testimony most directly related (count 14 of the consolidated
indictment charging criminal possession of a forged instrument in
the first degree), we fail to discern any resulting prejudice.
We reach a similar conclusion regarding the challenged sublease;
even assuming that a document entered into between defendant's
alleged girlfriend and a third party constitutes an uncharged
crime or prior bad act attributable to defendant, we agree with
County Court that such proof goes to defendant's intent to commit
the charged crimes. Accordingly, we reject defendant's assertion
that he was denied a fair trial due to the admission of the
foregoing proof.

      Finally, we find no merit to defendant's claim that the
verdict is not supported by legally sufficient evidence and/or is
against the weight of the evidence. New York imposes a tax on
the possession of cigarettes intended for sale, the payment of
which is evidenced "by means of an affixed cigarette tax stamp"
(Tax Law § 471 [1]). Only licensed individuals, referred to in
the Tax Law as "agents" (Tax Law § 470 [11]), are permitted to
"purchase [cigarette tax] stamps and affix [them] . . . to
packages of cigarettes to be sold within the state" (Tax Law
§ 471 [2]). Insofar as is relevant here, it is a felony for a
person to "knowingly and willfully possess any cigarettes in
packages bearing . . . false, altered or counterfeited stamp[s]"
(Tax Law § 1814 [g]). Relatedly, "[a] person is guilty of
criminal possession of a forged instrument in the first degree
when, with knowledge that it is forged and with intent to
defraud, deceive or injure another, he [or she] utters or
possesses any forged instrument of a kind specified in [Penal Law
§] 170.15" (Penal Law § 170.30; see People v Batson, 103 AD3d
910, 910 [2013], lv denied 21 NY3d 1013 [2013]), which includes
"stamps . . . or other valuable instruments issued by a
government" (Penal Law § 170.15 [1]; see People v Batson, 103
AD3d at 910). As the People here proceeded upon a theory of
constructive possession, they bore "the burden of establishing
                              -9-                105234

that defendant exercised dominion and control over the contraband
or the area where the contraband was found" (People v McGough,
122 AD3d 1164, 1166 [2014] [internal quotation marks and
citations omitted], lv denied 24 NY3d 1220 [2015]; see Penal Law
§ 10.00 [8]). "Such possession may be established through either
direct or circumstantial evidence, and may be found even though
others have access to the contraband or the area where it is
located" (People v Rodwell, 122 AD3d 1065, 1067 [2014] [internal
quotation marks and citation omitted], lv denied 25 NY3d 1170
[2015]; see People v Perry, 116 AD3d 1253, 1254 [2014]).

      At the start of the trial, the parties stipulated, among
other things, that the van parked at the rear of the variety
store on August 27, 2010 was registered to defendant, that
untaxed and unstamped (or unlawfully stamped) packages of
cigarettes were seized from the premises on that date and that
the sheets of tax stamps seized therein were counterfeit. Hence,
the dispositive issues before us center upon defendant's intent
to deceive another, which may be inferred from the surrounding
circumstances (see People v Bickley, 99 AD3d 1113, 1113-1114
[2012], lv denied 20 NY3d 1009 [2013]), and the proof adduced
relative to his exercise of dominion and control over the areas
where the contraband was found. In this regard, without
recounting the extensive and detailed testimony regarding
defendant's conduct on the day in question, the observations made
by the investigators on the scene and the product seized
therefrom, we are satisfied that the verdict is supported by
legally sufficient evidence and, further, is in accord with the
weight of the credible evidence – specifically with respect to
the intent and possession elements of the charged crimes. To be
sure, defendant attempted to downplay his role in the operation
of the variety store, denied having access to or storing anything
in the back room from which much of the product in question was
seized and claimed that he phoned Tolantino on the day in
question solely in an effort to locate the records requested by
Stah. In the final analysis, however, the conflicting proof
offered at trial "created credibility issues that the jury was
entitled to, and obviously did, resolve against [defendant]"
(People v Muniz, 93 AD3d 871, 874 [2012], lv denied 19 NY3d 965
[2012]). Defendant's remaining contentions, including his
assertion that he improperly was denied the right to call certain
                              -10-                 105234

witnesses and that the sentence imposed was harsh and excessive,
have been examined and found to be lacking in merit.

     Garry, J.P., Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
