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Bess v. Spitzer

November 18, 2006

BRIAN N. BESS, A MEMBER OF THE SHINNECOCK INDIAN NATION, RESIDING ON THE SHINNECOCK INDIAN NATION RESERVATION, PLAINTIFF,
v.
ELIOT SPITZER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, ANDREW S. ERISTOFF, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, KRISTEN M. BOWES, IN HER OFFICIAL CAPACITY AS PROSECUTING ATTORNEY IN THE BRONX, NEW YORK, DISTRICT ATTORNEY'S OFFICE, GEORGE K. NOHAI, IN HIS OFFICIAL CAPACITY AS LIEUTENANT, SPECIAL INVESTIGATIONS UNIT, NEW YORK STATE POLICE, JOSE A. FEBO, IN HIS OFFICIAL CAPACITY AS INVESTIGATOR, NEW YORK STATE POLICE, LESLIE G. MILLINGTON, IN HIS OFFICIAL CAPACITY AS SENIOR INVESTIGATOR, NEW YORK STATE POLICE, WILLIAM HULSE JR., IN HIS OFFICIAL CAPACITY AS INVESTIGATOR, NEW YORK STATE POLICE, ELEVEN UNKNOWN STATE POLICE TROOPERS IN THEIR OFFICIAL CAPACITIES, AND ONE UNKNOWN TOWN OF SOUTHAMPTON POLICE OFFICE IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District J.

MEMORANDUM OF DECISION AND ORDER

Brian N. Bess (the "plaintiff") commenced this action against Eliot Spitzer, Andrew S. Eristoff, Jose A. Febo, William Hulse, Jr. (collectively, the "State Defendants"), George K. Nohai ("Nohai"), Leslie G. Millington ("Millington"), Kristen M. Bowes ("Bowes"), and certain unnamed police officers seeking declaratory and injunctive relief related to the search of his premises, the seizure of his property, and his arrest and currently pending criminal prosecution in the Supreme Court of the State of New York, Bronx County.

Presently there are five applications before the Court: (1) a motion by the plaintiff for a preliminary injunction enjoining his state court criminal prosecution; (2) a motion by the State Defendants to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); and (3) a motion by the defendant Bowes for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c); (4) a motion by the plaintiff for a temporary restraining order; and (5) a request by the plaintiff for a pre-summary judgment motion conference. The defendants Nohai and Millington have not appeared in the action. On November 17, 2006, the Court heard oral arguments on the various applications.

I. BACKGROUND

A. The Plaintiff's Arrest

The plaintiff is a member of the Shinnecock Indian Nation. The plaintiff resides at 12 Old Soldiers Road, Southampton, New York, which is located on the Shinnecock Indian Nation Reservation in eastern Long Island.

On or about August 25, 2005, a grand jury in Bronx County, New York indicted the plaintiff for violating certain provisions of the New York State Tax Law and the New York City Administrative Code (the "Indictment"). The specific provisions of the New York State Tax Law and the New York City Administrative Code under which the plaintiff is charged make it a felony to willfully avoid the payment of taxes on ten thousand cigarettes or more, and to possess or transport for the purpose of sale certain amounts of cigarettes in packaging that does not bear a lawful New York State tax stamp. See N.Y. Tax Law §§ 1814(a)(2), 1814(e)(2) (McKinney 1999); N.Y. City Admin. Code §§ 11-4012(a)(2), 11-4012(c).

On or about August 29, 2005, the defendants Nohai, Febo, Millington, Hulse, Jr., and the unidentified officers appeared at the plaintiff's on-reservation premises for the purpose of executing a search warrant issued by a Bronx County judge. The search warrant authorized the officers to search for and seize the following:

Untaxed cigarettes, counterfeit New York State tax stamps, counterfeit cigarettes, as well as various business records and documents reflecting the illegal possession, distribution, sale and/or proceeds of the same, including but not limited to invoices receipts, United States Currency, accounting ledgers, and any other document relating thereto.

During the execution of the search warrant at the plaintiff's residence, the defendants seized "[a]pproximately 145 cases of cigarette tobacco products, approximately $48,711 cash, a .40 caliber handgun, and [a] .357 handgun." Compl. ¶ 18. It is not clear whether the plaintiff was present at the time of the search.

On or about September 30, 2005, certain defendants returned to the plaintiff's on-reservation premises with a warrant for the plaintiff's arrest. The defendants arrested the plaintiff, who was arraigned in Supreme Court, Bronx County. The plaintiff has apparently been released on $500,000 bond.

B. The Plaintiff's Article 78 Proceeding

On or about September 7, 2005, the plaintiff commenced an Article 78 proceeding in the Supreme Court, Albany County under index number 5440-05. The plaintiff commenced this proceeding after the search of his premises and the seizure of his property, but prior to his arrest. Through this proceeding the plaintiff sought to invalidate the Indictment and search warrant issued as to him; to stay the enforcement of the warrant issued for his arrest; and to enjoin any further criminal proceedings against him in Bronx County. In addition, the plaintiff sought a declaratory judgment that the New York tax laws do not apply to him, and that the courts of New York acted in excess of their jurisdiction by subjecting him to New York criminal process. The plaintiff's asserted right to this relief was based on the Fort Albany Treaty of 1664, and 18 U.S.C. §§ 1151-1170, which sets forth criminal provisions relating specifically to Native American Indians.

On December 29, 2005, Supreme Court Justice George B. Ceresia, Jr. denied the plaintiff's Article 78 petition. See Bess v. Spitzer, No. 5440-05 (N.Y. Sup. Ct. Albany County Dec. 29, 2005). Justice Ceresia held that (1) the plaintiff lacked standing to sue under the Fort Albany Treaty of 1664; (2) the plaintiff failed to join the Shinnecock tribe as a necessary party; (3) pursuant to 25 U.S.C. § 232, the State of New York has concurrent jurisdiction with the Federal Government to enforce New York's criminal laws against Indians on Indian reservations within the State of New York; and (4) that the plaintiff has an adequate alternative remedy to assert these claims as defenses in his criminal action. Apparently, the plaintiff did not appeal the denial of his Article 78 petition and his time to do so has expired.

C. The Plaintiff's Motion to Dismiss the Indictment

In or about November, 2005, the plaintiff made a motion to dismiss the Indictment in Bronx County. Essentially, the plaintiff's motion to dismiss advanced the same arguments that the plaintiff made in his Article 78 proceeding, and that he makes here in support of his motion for a preliminary injunction and in opposition to the defendants' motions to dismiss. These arguments are, that as a Shinnecock Indian he is immune from criminal prosecution by the State of New York for alleged violations of the New York State and City tax codes; and that based on this immunity the courts of Bronx County were without jurisdiction to issue warrants for the search of his home on the Shinnecock reservation and for his arrest, or to continue to prosecute him for his alleged activity. On May 24, 2006, Justice Steven L. Barrett denied the plaintiff's motion to dismiss the Indictment. See People v. Bess, Indictment No. 90097/2005, at 13-15 (N.Y. Sup. Ct. Bronx County July 20, 2006).

Justice Barrett concluded, among other things, that (1) 25 U.S.C. § 232 remains valid and permits the State of New York to assert jurisdiction over the criminal activity of a Shinnecock Indian committed on, as well as off, the Shinnecock reservation; (2) the plaintiff had no basis to claim that the State of New York cannot proscribe the sale of un-stamped or fraudulently stamped cigarettes to non-tribe members during transactions conducted both on and off the reservation; (3) the courts of Bronx County had the authority to issue a warrant for the search of the plaintiff's on-reservation premises for evidence of criminal conduct committed within Bronx County and to issue a warrant for the plaintiff's arrest; and (4) individual Indians lack standing to sue under the Treaty of Fort Albany of 1664 because that Treaty secures rights for "tribes and bands of Indians" rather than individuals.

D. The Current Action

On May 31, 2006, the plaintiff commenced this action. The Court notes that the parties named as defendants in the complaint are identical to the parties named as respondents in the plaintiff's prior Article 78 proceeding. In this action, the plaintiff claims that his indictment, his arrest, the seizure of his property, his continued prosecution, and the assessment of taxes against his on-reservation property violates (a) the Fort Albany Treaty, 1664; (b) the Contract Clause of the United States Constitution, Art. I, s. 10, cl. 1; (c) the Indian Commerce Clause of the United States Constitution, art. I, s. 8, cl. 3; (d) "the policy of the Congress of the United States concerning Indians"; and (e) "the trustee relationship of the government of the United States of America as trustee and guardian of" the plaintiff as a Shinnecock Indian.

The plaintiff seeks declaratory and injunctive relief in the form of (1) a declaration that the provisions of the New York State Tax Law and the New York City Administrative Code that form the grounds for his criminal prosecution are invalid as applied to him; and (2) an injunction ordering (a) the return of all property seized by the defendants; (b) that the plaintiff be released from custody; (c) the release of all monies paid or pledged for plaintiff to be released on bond; and (d) an Order barring the defendant Bowes from prosecuting the plaintiff in the Bronx County Supreme Court. The defendants oppose the plaintiff's motion for a preliminary injunction and move to dismiss the complaint.

II. DISCUSSION

A. Legal Standards

1. Rule 12(b)(1)

When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001). Under Rule 12(b)(1), the Court must accept as true all material factual allegations in the complaint, but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).

2. Rule 12(b)(6)

Fed. R. Civ. P. 12(b)(6) allows a court to dismiss a complaint for "failure to state a claim on which relief can be granted." In deciding such a motion, the Court must take the allegations of the complaint to be true and "draw all reasonable inferences in favor of the plaintiff." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). In this regard, a complaint will not be dismissed unless " 'it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief.' " Scutti Enters., LLC. v. Park Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Desiderio v. Nat'l Ass'n of Sec. Dealers, 191 F.3d 198, 202 (2d Cir. 1999).

3. Rule 12(c)

The standard for reviewing a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is analogous to the rules pursuant to Rule 12(b)(6). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). The Court must determine whether "the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. Int'l Union United Plant Guard Workers of Am., 47 F.3d 14, 16 (2d Cir. 1995). As with a 12(b)(6) motion to dismiss, the issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).

B. New York Criminal Jurisdiction Over Shinnecock Indians

A federal statute provides that:

The State of New York shall have jurisdiction over offenses committed by or against Indians on Indian reservations within the State of New York to the same extent as the courts of the State have jurisdiction over offenses committed ...


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