People v. Kriesel

• Decision Date: 28 May 1970
• Citation: People v. Kriesel, 311 N.Y.S.2d 162, 63 Misc.2d 72 (N.Y. Cty. Ct. 1970)
• Parties: The PEOPLE of the State of New York v. Elaine KRIESEL.
• Court: New York County Court

Page 162

311 N.Y.S.2d 162

63 Misc.2d 72

The PEOPLE of the State of New York v.Elaine KRIESEL.

Onondaga County Court.

May 28, 1970.

Frank A. Gualtieri, Dist. Atty. of Onondaga County(Jon K. Holcombe, Asst. Dist. Atty., of counsel) for the People.

Faith A. Shidenberg, Syracuse, for defendant.

MEMORANDUM

ALBERT ORENSTEIN, Judge.

This is an appeal from a judgment of conviction for violation of Section 65(1) of the Alcoholic Beverage Control Law after a non-jury trial in the Town of Lysander Justice Court(Robert Oram, J.) on January 7, 1969.Defendant was sentenced on January 7, 1969, to pay a fine of $300.00.

Section 65(1) of the Alcoholic Beverage Control Law provides in simple and forthright terms that:

'No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1.Any minor, actually or apparently, under the age of eighteen years; * * *.'

Defendant on this appeal contends that the statute under which this defendant was convicted is unconstitutional, upon the ground that the phrase 'actually and apparently under the age of eighteen years', is vague and fails to clearly define the prohibited acts.I find this contention has no merit.

The 18th Amendment to the Federal Constitution, (The Volstead Act) was repealed by the 21st Amendment of the Federal Constitutioneffective December 5, 1933.

The Legislature of the State of New York, by Chapter 478 of the Laws of 1934 adopted the Alcoholic Beverage Control Law.Section 2 of that law declared it a policy of the State to regulate and control the sale of alcoholic beverages within the state.

The purpose of the Alcoholic Beverage Control Law was to carry out that policy in the public interest.

'Section 2, Policy of state and purpose of chapter

* * * The restrictions, regulations and provisions contained in this chapter are enacted by the legislature for the protection, health, welfare and safety of the people of the state.* * *'

The legislative intent so enacted is clearly an exercise of the police power by the state, Calvery Presbyterian Church v. State Liquor Authority, 245 App.Div. 176, 281 N.Y.S.2d 81, affirmed270 N.Y. 497, 200 N.E. 288.

The state has the constitutional power to control and regulate the issuance or revocation of all liquor licenses.(Matter of Bushell v. City of New York, 242 App.Div. 366, 274 N.Y.S. 757)The Court of Appeals upheld the constitutionality of the liquor tax law of 1896 holding that the regulation and control of liquor traffic was a proper exercise of the state's police power.(People ex rel. Einsfeld v. Murray, 149 N.Y. 367, 44 N.E. 146)'The protection of adolescents against psychic and physical impairment from the use of alcohol is a settled policy of the State.'(Matter of Barnett v. O'Connell, 279 A.D. 449, 450, 111 N.Y.S.2d 166, 167)

The section of the Alcoholic Beverage Control Law in question is clear and specific.In keeping with the policy as stated, Article 5, Section 65(1) prohibits the sale of alcoholic beverages to any minor, Actually or apparently under the age of 18 years.

The prohibited act forbids the sale to any minor actually under the age of 18 years and by adding the words 'apparently', it clearly means that the seller has the right to refuse to sell an alcoholic beverage to one who appears to be less than 18 years of age but is actually over 18 years of age.

This interpretation is reasonable and clear in the light of the last paragraph contained in Section 65 of the Alcoholic Beverage Control Law:

'Neither such person so refusing to sell or deliver under this section nor his employer shall be liable in any civil or criminal action or for any fine or penalty based upon such refusal, except that such sale or delivery shall not be refused, withheld from or denied to...