Nearly two weeks have passed since New York’s highest court ruled Cayuga and Seneca counties could not prosecute the Cayuga Indian Nation for selling untaxed cigarettes at their LakeSide Trading stores in Union Springs and Seneca Falls.
However, Cayuga County District Attorney Jon Budelmann said he still intends to pursue criminal charges against the nation.
“My reading (of the decision) is that we can’t prosecute them for failing to collect discount cigarettes brands they sell to consumers….I’m trying to prosecute them for possessing untaxed cigarettes with the intent to sell them to non-Indians,’’ Budelmann said last week.
Budelmann’s plan elicited a sharp response from the Cayugas’ lawyer and it also seems to contradict the reaction of Rochester lawyer Philip Spellane, who represents both counties in the civil side of the dispute.
“Clearly, the prosecution can’t go forward,’’ Spellane said shortly after the state Court of Appeals ruled on May 11.
In its ruling, the court said the Cayugas can not be prosecuted for tax evasion because the state does not have a system for its Indian retailers to collect taxes on cigarettes sold to non-Indians.
“To argue that you then can prosecute them for being in possession of the very cigarettes they’re allowed to sell is illogical and reeks of sour grapes,’’ said Syracuse lawyer Daniel French, a former U.S. attorney who represents the Cayugas.
“Speaking as a former prosecutor,’’ French added, “the district attorney’s refusal to terminate these prosecutions is an outright abuse of his office and is in utter defiance of the specific ruling of the Court of Appeals.’’
In December 2008, Budelmann and then-Seneca County District Attorney Richard Swinehart said grand juries in their respective counties had returned sealed indictments against the Cayugas. The indictments have never been opened but both prosecutors said at the time they were seeking tax-evasion charges against the Cayugas after authorities seized some 17,600 cartons of unstamped cigarettes from the nation’s two stores.
Swinehart is no longer in office and his successor Barry Porsch said he believes the court ruled that the Cayugas can not be prosecuted in the case.
Budelmann said he would seek to have the indictments opened and then pursue his criminal case against the Cayugas unless the indictments are ordered dismissed. French said the Cayugas would ask to have the indictments dismissed if Budelmann seeks to have them opened.
- Court ruling puts Cayuga Indian Nation back in cigarette business
- Cayuga County to appeal decision allowing Indians to sell tax-free cigarettes
- Cayuga, Seneca Counties Seek Supreme Court Hearing on Cigarette Tax Dispute
- DA: Notice of appeal to be filed in cigarette tax ruling
- Cayuga Indians’ offer to settle cigarette tax dispute falls flat