People v. Villatoro

• Decision Date: 29 June 1993
• Citation: 158 Misc.2d 557,601 N.Y.S.2d 410
• Parties: PEOPLE of the State of New York v. Nicholas VILLATORO, Defendant.
• Court: New York Villiage Court

Page 410

601 N.Y.S.2d 410

158 Misc.2d 557

PEOPLE of the State of New York v. Nicholas VILLATORO, Defendant.

Village Justice Court of

Incorporated Village of Westbury,

Nassau County.

June 29, 1993.

Jerome F. Matedero, Village Atty., Westbury, for Incorporated Village of Westbury.

Nicholas Villatoro, appeared pro se.

THOMAS F. LIOTTI, Village Justice.

The defendant received an Appearance Ticket charging him with "open container possession." The ticket, issued to the defendant on or about January 27, 1993, in the vicinity of Powells Lane and Rockland Street, within the Incorporated Village of Westbury states, more specifically, that the defendant is accused of violating Village and Town of North Hempstead ordinances. However, only the pertinent Village Code section is cited, to wit: § 26A-3(A), which provides as follows:

Unless otherwise authorized by the Code of the Village of Westbury, and except as hereinafter provided, no person shall have in his possession an open bottle, can or other container containing any alcoholic beverages in or on any public place in the Village of Westbury or in a motor vehicle, as defined by the Vehicle and Traffic Law, which is parked or moving on or over a public place. This subsection shall not apply within the specific confines of those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within and on private property that is not a public place as defined in § 26A-2 of this chapter.

In reviewing the applicable definitions within § 26A-2 of this chapter, alcoholic beverages "include any liquid intended for human consumption containing more than one-half of one percent ( 1/2 of 1%) by volume of alcohol (ethanol)."

The definitions also provide that a public place includes a road or sidewalk within the Village and not on private property. The location of the occurrence appears to be on a "public place" as defined by the Code. The supporting deposition by the Police Officer issuing it states:

"I observed the defendant at the stated place, date and time 'in possession of an opened 12 oz. can of Tecate Beer with intent to drink same.' " ¹

The defendant comes before the Court pro se. At the time of arraignment, the defendant was prepared to enter a plea of guilty to the charge. The Court spent at least twenty (20) minutes advising the defendant of his rights and answering his questions. The Court expressed its concern relative to the legality of the law in question and advised the defendant that it would seek a Memorandum of Law from the Prosecutor regarding the constitutionality of the law before rendering a decision. The defendant then pled not guilty.

One question is presented by this ticket. Is this so-called "open container" law constitutional or does it impermissibly offend the Fifth Amendment of the United States Constitution?

After this arraignment the Court wrote a letter to the Prosecutor posing questions and suggesting, in pertinent part, as follows:

I would be most interested in your legal memo on these subjects, together with anything that you may offer me with respect to the legislative history of the law, which was apparently enacted in 1978. I also note that the police officer issuing this ticket has alleged a violation of the Town of North Hempstead Code, without citing the analogous section from that Code that was allegedly violated. Nonetheless, if the law in Westbury is to any extent a replication of the Town of North Hempstead law, I would be interested in knowing that and also, to what extent that ordinance has been challenged on the aforementioned points and the result of those cases, if any. See copy of letter dated April 14, 1993 in the Court file addressed to the Prosecutor, Jerome F. Matedero, Esq.

The Village Prosecutor has responded by a letter dated May 20, 1993, as follows:

Chapter 26A of the Westbury Code, entitled 'Open Beverage Containers' was enacted as Local Law No. 4 on August 17, 1978 at the recommendation of the Nassau County Police Department, with the basic provisions worded according to that Department's recommendation. Section 26A-3 thereof prohibits any person, except as otherwise permitted, to have in his possession an open bottle, can or other container containing any alcoholic beverages in or on any public place (as defined in § 26A-2) or in a motor vehicle (except a public bus).

A review of the applicable case law shows that the Court of Appeals, in People v. Lee, 58 N.Y.2d 491, 462 N.Y.S.2d 417 (1983) held unconstitutional a similar provision of the Code of the Village of Monticello which also prohibited possession of an open alcoholic beverage container in a public place without specific reference to intent to consume. Speaking for the majority in a divided court, Judge Jones observed (495-496)

"We turn then to the provisions of the code in question. The Village Justice Court upheld the statute as a reasonable exercise of the municipal police power as to which there was no pre-emption by State laws or regulations under the Supreme Court's recognition of the States' absolute power to bar the sale of alcoholic beverages in New York State Liq. Auth. v. Bellanca (452 US 714 [101 S.Ct. 2599, 69 L.Ed.2d 357]. Apparently recognizing the insufficiency of that analysis, County Court sustained the ordinance by reading the section 'to prohibit possession with the intent of the possessor or another to consume in one of the proscribed public places' (emphasis in original). Whatever might be judged to be the constitutionality of an ordinance so drafted, it suffices for present purposes to note that the provision now before us prescribes no such element of intent. We are called on to pass on the constitutionality of the provision as enacted, not as it might have been drafted.

" '[I]n order to be upheld as constitutional, a law which places some restriction upon an individual's freedom of action in the name of the police power must bear some reasonable relation to the public good.' (People v. Pagnotta, 25 N.Y.2d 333, 337 [305 N.Y.S.2d 484, 253 N.E.2d 202]; see, also, People v. Uplinger, 58 N.Y.2d 936 [460 N.Y.S.2d 514, 447 N.E.2d 62]; People v. Onofre, 51 N.Y.2d 476, 492 [434 N.Y.S.2d 947, 415 N.E.2d 936]; People v. Bunis, 9 NY2d 1, 4-5 [210 N.Y.S.2d 505, 172 N.E.2d 273]. While reasonable regulation of the possession of alcoholic beverages might be upheld, outright proscription as criminal of possession only of a container of an alcoholic beverage has not been shown to bear a reasonable relation to the public good. Consumption in public may be an activity subject to criminal proscription but no reasonable argument could be advanced to support a proscription against public possession alone which, if uniformly enforced, would effectively foreclose the acquisition of all alcoholic beverages for all purposes."

Chief Justice Cooke dissented, asserting that no basis existed for holding the ordinance constitutionally infirm.

Westbury's open beverage container law, like Monticello's, prohibits the carrying of an open container of alcoholic beverage in certain public places without reference to any specific intent that possessor consume such beverage. Therefore, it falls under the same constitutional proscription as found in People v. Lee (supra).

Accordingly, prosecution of the instant case is not warranted and I hereby request that it be calendared so a motion to dismiss can be made pursuant to CPL § 170.35.

The Lee case is clearly the seminal case for purposes of our discussion. In Lee, at 496, 462 N.Y.S.2d 417, 448 N.E.2d 1328, the Court further held that:

Nor is the ordinance in this case saved by the fact that all that is proscribed is possession of alcoholic beverages in 'open or unsealed' containers. The condition of openness in itself in no way threatens the public good, as the County Court recognized when it imported an intent to consume in public. While, of course, a container must be opened or unsealed to permit consumption, it cannot be presumed that every opening or unsealing...