
    The People of the State of New York, Plaintiff, v William E. Ricchiutti, Defendant.
    County Court, Trial Term, Nassau County,
    May 30, 1975
    
      Robert J. Kaschak for defendant. Denis Dillon, District Attorney (Douglas Hollmann of counsel), for plaintiff.
   Richard C. Delin, J.

The defendant is charged with a felony under the Tax Law. He now moves to strike the District Attorney’s statement which alleges that he is a second felony offender. (See Penal Law, § 70.06; CPL 400.21.)

Section 70.06 (subd 1, par [a]) of the Penal Law provides that a second felony offender is "a person who stands convicted of a felony deñned in this chapter” (emphasis supplied). Possession of untaxed cigarettes as a felony is not defined in the Penal Law. Under the established rules of statutory construction and the self-evident language of the statute, the instant offense is not subject to the increased penalties of section 70.06.

Accordingly, the defendant’s motion is granted. It is, so ordered.  