Appeals from judgments of the District Court of Suffolk County, First District (Glenn A. Murphy, J.), rendered November 22, 2004. The judgments convicted defendant Armindo G. Esteves, upon a jury verdict, of criminal mischief in the fourth degree and criminal trespass in the third degree, and convicted defendant Maria R. Esteves, upon a jury verdict, of criminal trespass in the third degree.

Judgments of conviction affirmed.

Viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find it was legally sufficient to establish defendants' guilt beyond a reasonable doubt. Furthermore, we are of the opinion that the lower court properly denied defendants' request for a jury charge that if they were acting upon the advice of their attorney, they could not be found guilty of the charges since they lacked the requisite criminal intent. We agree with the lower court that whether the defendants were acting upon the advice of their attorney is only one factor to be considered by the jury and is not dispositive. Furthermore, the court charged the jury with respect to the elements of knowingly and intentionally prior to handing the case over to them. Finally, we have reviewed the other issues raised on appeal and find them to be without merit.

Accordingly, there is no basis upon which to disturb the judgments of conviction.

Rudolph, P.J. and McCabe, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the judgments and dismiss the accusatory instruments in the following memorandum: [*2]

In my view, the accusatory instruments were inadequate in that they alleged that the events concerned property owned by an "Annemarie Pagano," the manager of the New York State Department of Taxation and Finance's Nassau County District Office, instead of the New York State Department of Taxation and Finance.

Furthermore, the evidence adduced at trial established that the business in question (Arjo Corp.) had been transferred to Lisbon Bakery, Inc. prior to its seizure by the New York State Department of Taxation and Finance. Therefore, the business was improperly seized by the New York State Department of Taxation and Finance. In any event, the business, not the real property, was seized. Moreover, in viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), it is my opinion that it was not legally sufficient to prove defendants' guilt beyond a reasonable doubt since it did not establish that defendants had the requisite mens rea to commit the alleged crimes.
Decision Date: June 27, 2006