People v. Teetsel

• Decision Date: 29 August 1958
• Citation: 177 N.Y.S.2d 612,12 Misc.2d 835
• Parties: PEOPLE of The State of New York v. Robert TEETSEL and George Norton, Defendants.
• Court: New York County Court

Page 612

177 N.Y.S.2d 612

12 Misc.2d 835

PEOPLE of The State of New York v. Robert TEETSEL and George Norton, Defendants.

Ulster County Court.

August 29, 1958.

Andrew J. Cook, Jr., Kingston, for defendant, Robert Teetsel.

Howard C. St. John, Dist. Atty., Kingston, for the People.

LOUIS G. BRUHN, Judge.

This is a motion on behalf of the defendant, Robert Teetsel, for an order granting him permission to inspect the Grand Jury minutes of the December, 1957 Supreme Court Grand Jury.

Pursuant to Section 39, subdivision 2-a of the Code of Criminal Procedure, this Court has jurisdiction of such a motion.

The object of such a motion is not to supply an accused with evidence prior to trial but to lay the basis for a motion to dismiss the indictment where there is reason to believe that the evidence before the Grand Jury is insufficient or illegal. People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 31, 156 N.E. 84, 86, 52 A.L.R. 200.

The law seems well settled that on such a motion the Judge is authorized to read the minutes of the Grand Jury. People v. Howell, 3 N.Y.2d 672, 675, 171 N.Y.S.2d 801, 803.

In keeping with the customary practice this Court has examined the Grand Jury minutes, as well as the moving affidavit submitted.

While the instant motion is primarily for the inspection of the Grand Jury minutes preparatory to a motion to dismiss the indictment, the Court has inherent power to dismiss the indictment without passing upon the motion to inspect if it appears the indictment was found without sufficient evidence, or upon illegal testimony. People v. Walsh, 92 Misc. 573, 156 N.Y.S. 366; People v. Hirschberg, Gen.Sess., 37 N.Y.S.2d 861; People v. Navarra, 8 Misc.2d 497, 168 N.Y.S.2d 206; People v. De Lancett, 9 Misc.2d 1021, 171 N.Y.S.2d 281.

The indictment in question, No. 5230, charges the defendants jointly with a violation of Section 65 of the Alcoholic Beverage Control Law of the State of New York in that they 'on or about the 6th day of December, 1957, caused or permitted alcoholic beverages to be delivered to a minor actually under the age of eighteen years; * * *'. (Italics supplied.) Said Section 65 provides in part:----

'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;'. (Italics supplied.)

This Court is fully aware of the fact that the Appellate Courts in Proceedings pursuant to Article 78 of the Civil Practice Act to review a determination of the State Liquor Authority have consistently held that under the regulatory statute intent or knowledge on the part of the licensee is immaterial, in order to provide increased protection for the young and that 'every licensee has the statutory responsibility of seeing to it that sales of alcoholic beverages are not made to persons less than 18 years of age and assumes the risk of such sales'. Barnett v. O'Connell, 279 App.Div. 449, 111 N.Y.S.2d 166; Erin Wine & Liquor Store v. O'Connell, 283 App.Div. 443, 447, 128 N.Y.S.2d 364, 369, affirmed 307 N.Y. 768, 121 N.E.2d 614; Sheibar v. New York State Liquor Authority, 4 A.D.2d 442, 166 N.Y.S.2d 394.

Even in those proceedings, however, to sustain a determination by such Authority there must be 'substantial evidence' to support the finding. Even Wine & Liquor Store v. O'Connell, supra.

This Court is likewise fully aware that other jurisdictions are divided on the question of whether or not a licensee may be criminally indicted for an illegal sale to a minor by his agent, in his absence and contrary to his instructions.

However, in those jurisdictions holding that such licensee can be indicted, the statute, in most cases, is directed against a licensee and the doctrine of respondent superior is invoked to justify criminal responsibility on such licensee.

Even in our own State such doctrine apparently applies to Sections of the Alcoholic Beverage Control Law where such section is directed specifically against the licensee or the licensed premises. See Section 106 of the Alcoholic Beverage Control Law. People v. Hawk, 156 Misc. 870, 283 N.Y.S. 531, affirmed 268 N.Y. 678, 198 N.E. 555.

Curiously enough subdivision 6 of Section 106, (supra) provides:----

'No person licensed to sell alcoholic beverages shall suffer of permit any gambling on the licensed premises, or suffer or permit such premises to become disorderly'.

The Court of Appeals in interpreting such italicized phrase in Migliaccio v. O'Connell, 307 N.Y. 566, at page 568, 122 N.E.2d 914, at page 915 had this to say:----

'In considering what is implied by the phrase 'suffer or permit' as employed in the statute quoted above, we are guided by what was written for this court (per Cardozo, J.) in People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 30, 121 N.E. 474, 476: 'Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at...