People v. Heil, 2010 NY Slip Op 20148 (N.Y. Dist. Ct. 4/21/2010), 09-156.

• Decision Date: 21 April 2010
• Docket Number: 09-157.,09-156.
• Citation: 2010 NY Slip Op 20148
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JOHN C. HEIL AND ELIZABETH A. HEIL, Defendants.
• Court: New York District Court

Page 1

2010 NY Slip Op 20148

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JOHN C. HEIL AND ELIZABETH A. HEIL, Defendants.

09-156.

09-157.

Rye City Court.

Decided April 21, 2010.

Janet DiFiore, District Attorney White Plains (Frank L. Priolo, Diana Ameri & Steven A. Bender, Ass't Dist Att'y of counsel) for plaintiff.

Piscionere & Nemarow, P.C., Rye (Anthony G. Piscionere of counsel) for Defendants.

JOSEPH L. LATWIN, J.

This case involves consumption of alcohol by our youth. The impact of alcohol abuse on the lives of our young people can be seen in traffic fatalities, increased crime, decreased productivity, and countless other alcohol-related problems. This issue not new to Rye. See e.g., People v. Houis, 196 Misc 2d 754 at 755, 766 NYS2d 520 at 521 [Rye City Ct, 2003], where Judge Lane said "Drinking by youths and the too often concomitant supplying of alcohol to the young is a very serious problem, both locally and nationally. What is deemed by some to be a mere "rite of passage" too often leads to tragedy" & People v, Bassett, Rye City Ct, February 14, 2005, Alfano, J., File No. 04 Crim 444. Each year, local newspapers report on some tragedy where young lives are lost to the effects of alcohol, whether by motor vehicle accidents, fights, falls or drowning, followed by the mourning and bemoaning of family and friends. There is no doubt that this is a serious problem; so important that it has attracted several attempts of the State Legislature to protect us and our children from the impacts of alcohol.

The State Legislature enacted a number of laws generally restricting access to alcoholic beverages by underage individuals. Several laws are directed toward persons other than the underage drinker: a person is prohibited from giving, selling, or causing to be given or sold any alcoholic beverage to a person less than 21 years old, Penal Law § 260.20(2) — the law at issue here; see also Alcoholic Beverage Control Law § 65(1) (prohibiting selling, delivering, or giving away, or causing or permitting or procuring to be sold, delivered, or given away any alcoholic beverage to any person actually or apparently under the age of 21 years); and from misrepresenting the age of a person under the age of 21 years for the purpose of inducing the sale of any alcoholic beverage to such person, Alcoholic Beverage Control Law § 65-a. Moreover, a person who knowingly causes the intoxication or impairment of ability of a person under the age of 21 years by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for that minor may be civilly liable to a third party who is injured by reason of that intoxication. General Obligations Law § 11-100(1). Related provisions of the Alcoholic Beverage Control Law direct that an entity licensed to sell alcoholic beverages may accept as written evidence of age only certain types of documentation. Alcoholic Beverage Control Law § 65-b(2)(b). Licensees also must conspicuously display a notice regarding the illegality of the sale or giving of alcoholic beverages to persons under the age of 21 years and of the presentation of identification that is false, fraudulent, or not that of the presenter for the purpose of purchasing or attempting to purchase alcoholic beverages. Id. at § 65-d. Other laws are directed toward the underage persons themselves: an underage person is prohibited from presenting or offering to a licensee under the Alcoholic Beverage Control Law any written evidence of age that is false, fraudulent, or not actually his or her own for the purpose of purchasing or attempting to purchase any alcoholic beverage, Alcoholic Beverage Control Law § 65-b(2)(a); and from possessing any alcoholic beverage with the intent to consume it, id. § 65-c.

Among the laws passed by the Legislature is Penal Law § 260.20 — Unlawfully dealing with a child. That is the crime with which the defendants are charged in this case. Defendants are charge by a superceding misdemeanor information with Unlawfully Dealing with a Child in the First Degree in violation of Penal Law § 260.20(2).

A person is guilty of unlawfully dealing with a child in the first degree when: ...

2. He gives or sells or causes to be given or sold any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to a person less than twenty-one years old . . .

Penal Law § 260.20 was derived from former Penal Law § 484(3).¹ The intent of § 484(3) was to protect physical health, morals and well-being of children, and such solicitude related not only to sexual offenses but to other dangers as well. People v. Bergerson, 17 NY2d 398, 271 NYS2d 236 [1966]. In 1985, several laws relating to underage drinking were amended by chapter 274 of the Laws of 1985, including Penal Law § 260.20, principally raising the legal drinking age from 19 to 21. The Governor's Memorandum in support of the law said,

Making alcohol accessible to young people results in a variety of public health, safety and legal problems. When young people can legally purchase alcohol, they are more likely to be killed or injured in an automobile crash, more likely to be involved in a non-violent crime and more likely to experience a wide variety of health-related problems.

In 1983, according to coroner's data, 21% of all 19 and 20 year olds who died in New York were legally intoxicated at the time of their death. The leading cause of death for 19 and 20 year olds is motor vehicle accidents. Although 19 and 20 year olds represented only 4.1% of the licensed drivers in 1983, they were responsible for 13.4% of all alcohol-related fatal crashes and 12.8% of all alcohol-related injury producing crashes.

However, nothing in the legislative history sheds any light on the meaning of terms of the statute.

Defendants move to: (1) suppress defendants' statements pursuant to CPL § 710.20; (2) suppress evidence pursuant to CPL §§ 710.20, 710.60 and 710.70; (3) dismiss the accusatory instrument for facial insufficiency; and (4) obtain disclosure of prior bad acts pursuant to CPL § 240.43.

Facial Insufficiency

Since the issue of the facial sufficiency of the information is dispositive of the entire proceeding, it will be addressed first.

A misdemeanor complaint . . . or a count thereof, is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in section 100.15; and (b) the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument. CPL § 100.40 (4).

Conformity with CPL § 100.15

Under CPL § 100.15, a misdemeanor complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The accusatory part of each such instrument must designate the offense charged. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. In order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

Here the information clearly sets forth the court with which it was filed and the title of the action. It is subscribed and verified by PO Gomez as complainant. It states that the allegations are made on the complainant's direct knowledge. It contains an accusatory part that designates the offense charged, and a factual part that contains facts supporting or tending to support the charge. Thus, the form of the information appears to comply with CPL § 100.15. That does not end the inquiry. The factual allegations must allege every element of the offense charged and be supported by non-hearsay evidence.

The elements of Penal Law § 260.20 are:

(a) the person charged must give or sell or cause to be given or sold;

(b) any alcoholic beverage, as defined by section three of the alcoholic beverage control law;

(c) to a person less than twenty-one years old.

The information alleges,

"The defendants at the above date, time and place, while aiding and abetting and acting in concert, did host a party for their daughter at their home where they allowed 13 persons, each of which was under the age of 21 years, each having dates of birth after the year of 1989 . . . to consume alcohol on their property, which was observed by your deponent, who observed each youth drinking from Budlight [sic] beer cans. The defendants knew that the 13 persons were under that age of 21, due to the fact that they were the same age as the defendants' daughter, who was under age 21, and defendants knew that the youths were not legally allowed to consume alcohol. The defendants admitted to your deponent to knowing that alcohol was being consumed at their home by persons under the age of 21, and nevertheless allowed such activity to continue."

There is no allegation that either defendant or anyone else gave or sold any alcohol to anyone. This failure to allege that anyone gave or sold alcohol to a minor alone might be sufficient to grant the motion. If no one sold or gave alcohol, defendants could not have caused alcohol to be sold or given. There are sufficient allegations in the information of alcoholic beverages (Bud Light) being imbibed by persons under 21 years of age. The issue presented is what constitutes "cause to be given" under ...