A former restaurateur who has had his share of run-ins with officials over unpaid property taxes and code violations avoided prison time Thursday in a sales tax case.
Frank Popolizio, 66, instead came up with the balance of the nearly $100,000 he owed to the state for unpaid sales taxes related to the now-defunct Pentagon restaurant on Erie Boulevard.
With the restitution came a sentence of five years of probation. He was also sentenced to perform 500 hours community service — the equivalent of three months of 40-hour work weeks.
Before being sentenced, Popolizio apologized for his conduct.
“I’m sorry for my actions,” he told the court. “Hopefully, I learned a lesson. Hopefully, you won’t see me again.”
The restitution was a key factor in what sentence acting Schenectady County Court Judge Polly Hoye would impose. His sentencing had been postponed repeatedly as he tried to come up with the money.
He faced anywhere from probation to up to three years in prison.
Even after Popolizio came up with the money, prosecutor Katie McCutcheon argued for jail time, saying that was the only thing that could deter Popolizio from committing similar crimes in the future.
She noted he has had a long history of problems with other forms of taxes, including not paying his property taxes. He is still more than $300,000 behind in those for his various properties, she said later.
She also noted that Popolizio has had 40 different judgments filed against him over the past 10 years. “Simply, your honor, enough is enough,” McCutcheon said.
Popolizio was arrested in May 2012 and charged with failing to pay to the state the sales tax he had collected at the Pentagon restaurant between January 2010 and February 2012.
In August 2011, Popolizio filed returns showing he owed at least $75,000 in sales tax collections, according to papers filed previously in court. The final tally of unpaid sales tax was $98,863.
Then, even after state investigators contacted Popolizio, he continued to not pay sales tax collected by the restaurant for the final two quarters it was in operation.
When investigators contacted Popolizio, he placed responsibility for failing to pay the sales tax on his accountant, according to records. The accountant, though, told investigators that he was never hired to prepare or file sales tax returns but was responsible only for the filing of corporate income tax returns.
Popolizio was represented by attorney Dennis Englert, who noted that it was Popolizio’s first criminal conviction.
“He is a businessman,” Englert said. “He was a novice restaurant owner — and when I say novice, I mean novice.”
McCutcheon described the crime as essentially taking money from the hands of residents who just wanted to enjoy a meal.
The sales tax money he collected went to his own personal use, not to the state as it was supposed to.
“For over two years he never paid a dime of sales tax, despite knowing exactly what he needed to do,” she said. “He has been a businessman for countless years.”
McCutcheon also said later that Popolizio had been sent several notices by the state tax department, and was visited by tax officials. Still, he didn’t pay.
In imposing the sentence, the judge noted that Popolizio must follow all the conditions of probation.
“I think this was hopefully a wakeup call to you,” Hoye said.
Still pending against Popolizio is an unrelated case from Otsego County. He was arrested in January 2012 after his dog-breeding business, South Side Dogs, was raided by state police and troopers found dozens of allegedly malnourished dogs.
Popolizio faces two counts of grand larceny, one count of scheme to defraud and four counts of animal cruelty in that case. He is also accused of failing to care for dogs and cows that were found starving to death, and not paying for hay he purchased.
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