New York Cigarette Smuggling cases are routinely prosecuted by the District Attorneys Offices across New York State. New York Cigarette Smuggling and other tobacco tax crimes are codified in Section 1814 of the New York Tax Law, rather than the New York Penal Code. Section 1814 of the New York Tax Law criminalizes the importation, distribution or sale of unstamped or unlawfully stamped cigarettes.
The purpose of New York Tax Law Section 1814 is to prevent the importation of cigarettes and other tobacco products from the states with lower tobacco taxes. New York State has the highest cigarette tax rate in all of United States – $4.25 per a a cigarette pack. Over 50% of cigarettes smoked in New York (57% in fact) are smuggled or brought in from out of state.
New York Cigarette Smuggling Charges under NY Tax Law Section 1814
All of New York Cigarette Smuggling charges are codified in New York Tax Law Section 1814. Each subsection of 1814 contains a different New York cigarette smuggling charge. Although the charges are located in the Tax Law and not in the Penal Law, they are still criminal charges, which carry criminal penalties.
Smuggling Charges under Section 1814 of New York Tax Law
- Willful Evasion of New York Tobacco Crimes
- Possession, Transportation, or Sale of Unstamped Cigarettes
- Possession or Transportation of Over 10,000 Cigarettes
- Possession or Transportation of Over 30,000 Cigarettes
- Willful Acts or Omissions Constituting a Misdemeanor New York Tobacco Tax Crime
- Alteration or Counterfeiting of Cigarette Tax Stamps
- Transportation of Over 10 Pounds of Untaxed Tobacco or 500 Untaxed Cigars
- Transportation of Over 15 Pounds of Untaxed Tobacco or 750 Untaxed Cigars
- Transportation of Over 50 Pounds of Untaxed Tobacco or 2,500 Untaxed Cigars
Willful Evasion of New York Tobacco Tax (NY Tax Law 1814(a))
Under New York Tax Law 1814(a), any person who willfully attempts to avoid New York taxes on:
- Ten thousand cigarettes or more, OR
- Twenty-two thousand cigars or more, OR
- Four hundred forty pounds of tobacco or more, OR
- Has previously been convicted two or more times of a violation of 1814(a)
is guilty of a Class “E” Felony.
Sentencing and Penalties on Willful Evasion of New York Tobacco Tax
As this New York Cigarette Smuggling Charge is a Class “E” Felony, it is punishable by 1 1/3 to 4 years in prison. However, a shorter determinate sentence, or a conditional discharge or probation are all authorized sentences for this New York tobacco tax crime.
Possession, Transportation, or Sale of Unstamped Cigarettes (NY Tax Law 1814(b))
Under New York Tax Law, it is a crime to:
- Possess or transport for the sale any unstamped or unlawfully stamped packages of cigarettes subject to New York tobacco tax, OR
- Sell or offer for sale any unstamped or unlawfully stamped packages of cigarettes.
Sentences and Penalties for Possession, Transportation or Sale of Unstamped Cigarettes
This charge is a misdemeanor. Therefore, it can be punishable by up to 1 year in prison. However, if the person has a prior conviction of this subdivision within the preceding 5 years, then this charge is a Class E felony. Class “E” Felonies are punishable by 1 1/3 to 4 years in prison. However, a shorter determinate sentence, or a conditional discharge or probation are all authorized sentences for this New York tobacco tax crime.
Possession or Transportation of Over 10,000 Cigarettes (NY Tax Law 1814(c)(1))
Under New York Law, it is a Class “E” Felony to:
(1) Willfully possess or transport for sale 10,000 or more cigarettes in unstamped or unlawfully stamped packages, OR
(2) Willfully sells or offers for sale 10,000 or more cigarettes in unstamped or unlawfully stamped packages.
Penalties and Sentencing for Possession or Transportation of Over 10,000 Cigarettes (NY Tax Law 1814(c)(1))
This New York Cigarette Smuggling charge is a Class E felony. Class “E” Felonies are punishable by 1 1/3 to 4 years in prison. However, a shorter determinate sentence, or a conditional discharge or probation are all authorized sentences for this New York tobacco tax crime.
Possession or Transportation of Over 30,000 Cigarettes (NY Tax Law 1814(c)(2))
This New York Tobacco Smuggling Charge makes it illegal to willfully:
(1) Possess or transport for the purpose of sale 30,000 or more cigarettes subject to New York Tax that are packaged in unstamped or unlawfully stamped packages, OR
(2) Sell or offer for sale 30,000 or more cigarettes in any unstamped or unlawfully stamped packages.
Penalties and sentencing for Possession or Transportation of Over 30,000 Cigarettes
This New York cigarette smuggling charge is a Class D non-violent felony. As such, it is punishable by a maximum of 2 1/3 to 7 years in prison. However, probation, conditional discharge or a sentence of 1 – 3 years, or a determinate sentence of one year or less are all authorized sentences.
Applicable Legal Presumptions to New York Cigarette Smuggling Cases
Possession of Over 400 Cigarettes
There is a legal presumption in New York State that possession of more than 400 cigarettes in unstamped or unlawfully stamped packages at one time by any person other than an agent at any one time is presumptive evidence that such cigarettes are subject to tax as provided by article twenty of this chapter.
Possession of Over 5,000 Cigarettes
Importantly, Section 1814 of the New York Tax Law contains a provision that possession of 5,000 or more cigarettes in unstamped or unlawfully stamped packages is presumptive evidence that such cigarettes are possessed or transported for the purpose of sale.
Thus, even if there is no other evidence that the prosecutor has regarding an individual’s possession intent, the prosecutor is able to get a jury instruction from the judge that the jury can infer that the individual possessed such a quantity of cigarettes for the purpose of sale.
Individuals Exempt from New York Tax Section 1814
Many individuals come in contact or transport untaxed cigarettes or tobacco products without knowing that the cigarettes or tobacco products don’t have the correct tax stamps. New York Cigarette Smuggling laws specifically exclude conduct which takes within these time periods and by certain individuals from criminal prosecutions:
Time Periods Exempt from New York Tax Section 1814
- Periods of time during which a New York Tax can still be paid on unstamped or improperly stamped cigarettes;
- Time period during which unstamped or improperly stamped cigarettes may be returned to the agent.
Individuals Exempt from New York Tax Section 1814
- Common or contract carriers, warehouse employees lawfully engaged in transportation or storage of unstamped cigarettes as merchandise or transportation of tobacco products;
- Other employees acting within the scope of their employment;
- Public officers or employees in the performance of their official duties requiring possession or control of tobacco products;
- Individuals who have temporary and incidental possession of products who have lawful possession;
- Individuals who are in possession of untaxed cigarettes or tobacco products for the purpose of aiding the police in performance of their duties.
Willful Acts or Omissions Constituting a Misdemeanor New York Tobacco Tax Crime (NY Tax Law 1814(f))
It is also a New York Tax Crime to engage in a willful act or omission relating to New York Cigarette Smuggling or Possession of Untaxed Tobacco products, other than the conduct prohibited by sections (a), (b), (c), (d), (e), (g), (h) or (i) of New York Tax Law 1814.
Penalties and Sentencing for Willful Act or Omission relating to New York Tax Law 1814
This New York Tax Smuggling charge is a misdemeanor. As such, it is punishable by up to 1 year in prison.
Alteration or Counterfeiting of Cigarette Tax Stamps (NY Tax Law 1814(g))
(g) Any person who falsely or fraudulently makes, alters or counterfeits any stamp prescribed by the tax commission under the provisions of article twenty of this chapter, or causes or procures to be falsely or fraudulently made, altered or counterfeited any such stamp, or knowingly and willfully utters, purchases, passes or tenders as true any such false, altered or counterfeited stamp, or knowingly and willfully possesses any cigarettes in packages bearing any such false, altered or counterfeited stamp, and any
person who knowingly and willfully makes, causes to be made, purchases or receives any device for forging or counterfeiting any stamp, prescribed by the tax commission under the provisions of article twenty of this chapter, or who knowingly and willfully possesses any such device, shall be guilty of a class E felony.
For the purposes of this subdivision, the words “stamp prescribed by the tax commission” shall include a stamp, impression or imprint made by a metering machine, the design of which has been approved by such commission.
Transportation of Over 10 Pounds of Untaxed Tobacco or 500 Untaxed Cigars (NY Tax Law 1814(h)(1))
(h)(1) Any dealer, other than a distributor appointed by the commissioner of taxation and finance under article twenty of this chapter, who shall knowingly transport or have in his custody, possession or under his control more than ten pounds of tobacco or more than five hundred cigars upon which the taxes imposed by article twenty of this chapter have not been assumed or paid by a distributor appointed by the commissioner of taxation and finance under article twenty of this chapter, or other person treated as a distributor pursuant to section four hundred seventy-one-d of this chapter, shall be guilty of a misdemeanor punishable by a fine of not more than five thousand dollars or by a term of imprisonment not to exceed thirty days.
Transportation of Over 15 Pounds of Untaxed Tobacco or 750 Untaxed Cigars (NY Tax Law 1814(h)(2))
Under New York Tax Law, transportation or possession of more than 15 pounds of tobacco or more than 750 cigars upon which New York taxes have not been imposed, is a misdemeanor.
Penalties and Sentencing for Possession of Transportation of Over 15 Pounds of Untaxed Tobacco or 750 Untaxed Cigars
This New York Cigarette Smuggling charge is punishable by up to 30 days in prison and a fine of not more than $5,000.
Transportation of Over 50 Pounds of Untaxed Tobacco or 2,500 Untaxed Cigars (NY Tax Law 1814(h)(3))
Under New York Tax Law Section 1814(h)(3), it is a crime knowingly transport or possess 2,500 or more cigars or 50 or more pounds of tobacco on which taxes have not been paid.
Knowledge can be established by the possession of these tobacco products, knowledge of the requirement of the tax on tobacco products and knowledge that such tax has not been paid.
Transportation of Over 50 Pounds of Untaxed Tobacco or 2,500 Untaxed Cigars (NY Tax Law 1814(h)(3))
This charge is generally a misdemeanor and as such, it is punishable by up to 1 year in prison. However, if the individual has been convicted twice under this subdivision, the subsequent charge is Class E felony, regardless of the amount of tobacco products involved in such violation. Under New York Law, Class E Felonies are punishable by up to 1 1/3 to 4 years in prison. However, for Class E Felonies, sentences of probation, conditional discharge, or a shorter incarceration period are permissible.
Alteration or Counterfeiting of Registration Certificate or Sticker (NY Tax Law 1814(i))
Altering or counterfeiting a registration certificate or sticker on cigarettes or other tobacco products is a separate crime under New York Law. Specifically, under New York Tax Law 1814(i) a person is guilty of a Class B misdemeanor when, he or she:
- falsely or fraudulently makes, alters, or counterfeits a registration certificate or sticker required under the New York Tax provisions; OR
- purchases, passes or tenders such certificate or sticker;
- makes, causes to be made, surceases or receives any device for forging or counterfeiting any registration certificate or sticker.
Penalties and Sentencing for Alteration or Counterfeiting of a Registration Certificate or Sticker
Under New York Law, this charge is a Class “B” misdemeanor. As such, this particular charge is punishable by up to 90 days in jail. Practically speaking, more frequently, these cases do not involve any jail time. Probation, conditional discharge, unconditional discharge, community service and time served are all acceptable resolutions to this New York Cigarette Smuggling tax crime.
Contact New York Tobacco Tax Criminal Defense Attorneys Today
If you are under investigation or have been arrested for a New York Cigarette Smuggling case, you need effective representation. Please call us at 212-729-9494 or contact us today to schedule your appointment.