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Former AG seeks dismissal of untaxed cigarettes case

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CANTON — A former state attorney general argued this week that the grand jury presentation leading to an Irving man’s indictment in an untaxed cigarette case was inadequate and the charge should be dropped.

Seth A. Snyder, 27, was pulled over by state police March 2 in Waddington and later was charged with felony possession and transportation of 30,000 or more untaxed cigarettes. An identical charge was levied against codefendant Andrew W. Munch, 19, of Dunkirk.

According to former attorney general Dennis C. Vacco, now a Buffalo-based attorney, Mr. Snyder presented officers with a memo, dated July 6, 2011, wherein Deputy Commissioner of Tax Enforcement Richard Ernst allegedly directed that cigarettes transported between Native American reservations should not be seized.

“We believe the DA’s office knew of the memo and they should have presented the memo to the grand jury, particularly because my client presented the memo to the officers that seized the cigarettes,” said Mr. Vacco, who appeared in St. Lawrence County Court on Tuesday.

He said that while prosecutors are seeking “to make this a very simple case of alleged tax evasion,” the case is more complicated.

“The statute that they’re intending to prosecute this young man under, in my estimation, is unconstitutional,” Mr. Vacco said. “The question is to whether or not these cigarettes, that are Native American brand products, were intended to be sold in commerce on the sovereign native territories.”

The defense asked for a hearing to determine if the indictment should be dismissed “in the name of justice,” according to Mr. Vacco.

Neither St. Lawrence County District Attorney Nicole M. Duve nor Assistant District Attorney Jonathan L. Becker returned a phone call seeking comment Friday. Mr. Becker represented the prosecution in court Tuesday.

Controversy regarding another cigarette seizure case arose earlier this summer when a state Supreme Court justice ruled in favor of the defense.

William Cagle, who was carrying approximately 5 million Signal brand cigarettes to HCI Distribution Corp., located on Winnebago tribal lands in Nebraska, was stopped at a U.S. Border Patrol checkpoint in Waddington on Jan. 23. The stop and seizure prompted a lawsuit, filed by HCI, seeking to reclaim the confiscated property, against members of the district attorney’s office and state police.

Justice David R. Demarest ruled in late June that the 26,000 cartons of cigarettes, holding a value of nearly $2 million, must be returned to their owner.

In early July, Ms. Duve appealed Judge Demarest’s ruling, and the case remains pending in the state appellate court.

According to Mr. Vacco, complication between state taxation and Native American cigarettes has been a long-standing issue that remains unresolved.

“Sales tax is ultimately the responsibility of the purchaser of the product,” Mr. Vacco said. “The state has been without an answer for a generation or more as to how it’s going to force its citizens to pay that tax.”

Judge Jerome J. Richards did not make a ruling from the bench Tuesday regarding Mr. Snyder’s indictment, choosing instead to issue a written decision. As of Friday afternoon, no decision had been filed.

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