The opinion of the court was delivered by: John B. Garrity, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Defendant has moved by way of Notice of Omnibus Motion dated October 17, 2008 supported by the affirmation of David S. Martin, Esq., seeking various forms of relief. The People have opposed, by way of "Affirmation in Answer to Defendant's Notice of Motion" supported by the affirmation of Paul Ackermann, Esq., Assistant Corporation Counsel dated October 28, 2008. Having read and duly deliberated on the aforementioned motion and the People's response thereto, this Court finds and determines the matter as follows:
Defendant is charged with three (3) counts of violating the "open container" law in violation of City Ordinance § 14-19, a violation, said offense having occurred on two separate dates (7/29/08 and 8/29/08).
1. The defendant's request seeking to dismiss the accusatory instrument on the basis that it does not meet the requirements of an information is denied. An accusatory instrument will be dismissed as facially insufficient only if it fails to allege non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offenses charged and the defendant's commission thereof. C.P.L. §100.15 (3); 100.40 (1)(c); People v. Alejandro, 70 NY2d 133 (1987). An information is sufficient on its face only if it contains non-hearsay factual allegations which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged. C.P.L. § 100.15(3); 100.40 (1)(b),(c); People v. Casey, 95 NY2d 354 (2000). Here, all of the elements necessary to sustain a challenge to the form and content of an information and a simplified information are met including the fact that it contains sworn allegations of fact establishing each of the elements of the offense based upon the personal knowledge of the officers who arrested the defendant.
2. The defendant challenges the constitutionality of the City Ordinance on the following grounds: 1) it is selectively enforced by City law enforcement; 2) it is vague and ambiguous; and 3) it subjects the offender to cruel and unusual punishment. In opposition, the People contend that 1) the defendant has failed to demonstrate a pattern of discrimination in the City's enforcement of the statute that is consciously practiced by City law enforcement, citing People v. Friedman, 302 N.Y.75, 81 (1950) and People v. Elhage, 147 AD2d 911 (4th Dept. 1989) in support of their position; 2) that the ordinance is not vague for it gives a person of ordinary intelligence, fair notice of the contemplated conduct which is forbidden and its applicability is further clarified with the enactment of section (f) of the ordinance which limits its applicability not to include any activity already regulated by New York State Alcohol and Beverage Control Commission; and 3) that the defendant has failed to demonstrate how the ordinance is cruel and inhumane.
While the defendant challenges the local ordinance on various constitutional grounds, this Court is strongly persuaded by just one of the arguments advanced by the defendant - the one which contends that the ordinance violates the Eighth Amendment of the U.S. Constitution in that its punishment is excessively harsh. Despite being impelled by this argument, this Court is constrained to deny the motion in light of the fact that a penal sanction has never been struck down on the grounds of disproportionality. People v. Broadie, 37 NY2d 100, 117 (1975) citing People v. Fitzpatrick, 32 NY2d 499, 509-513 [under constraint of Furman v. Georgia, 408 U.S. 238].
This Court previously ruled in a decision and Order dated June 20, 2008, that Poughkeepsie City Ordinance § 14-19 shall be deemed a "violation" for purposes of classification of the offense. People v. Tara Killeen (Docket Nos. 07-42599; 07-42634; 07-43488; 07-44771; 07-44926; 07-45062; 07-45108; 07-45270); Penal Law § 55.10(3)(b). In Killeen, this Court further found that despite the sentencing stricture set forth in Penal Law § 70.15(4) setting a maximum jail sentence of fifteen (15) days for violations, a violation of the open container law (§ 14-19) remains punishable by up to six (6) months in jail due to the language that was kept in the Poughkeepsie City Code despite being rendered anachronistic by the subsequent adoption of the Penal Law. Poughkeepsie City Code § 1-8 and Poughkeepsie City Council Resolution Section 4, adopted April 18, 1966. Simply stated, the penalty provisions for one convicted of an open container violation in Poughkeepsie was enacted approximately one year (1966) prior to the effective date of the Penal Law (enacted 1967) [Penal Law § 55.10(3)(b)], and while an amendment to the City Code could readily update the statute which presently imposes a demode penalty, the authority to revise penalties does not rest with this Court, rather it lies within the sole discretion of the City's legislative body.
The defendant's constitutional challenge is further hampered by the fact that facial challenges to statutes are disfavored because legislative enactments carry a strong presumption of constitutionality. People v. Taylor, 9 NY3d 129, 150 (2007). Courts are bound to construe statutes as they have been drawn and are not to review the expediency, wisdom or propriety of a Legislature's actions if such matters are performed within its powers. Lawrence Construction Corp. v. State of New York, 293 NY 634, 639 (1944). In order to have standing to challenge a statute as unconstitutional, a defendant must demonstrate actual or threatened injury to a protected right. Duke Power Comp. v. Carolina Environmental Study Group, 438 U.S. 59 (1978); People v. Parker, 41 NY2d 21 (1976); People v. Merolla, 9 NY2d 62 (1961). A defendant must also establish that he has been aggrieved by the unconstitutional feature of the statute. See, Ulster County Court v. Allen, 442 U.S. 140 (1979); Oriental Blvd., Co. v. Heller, 27 NY2d 212 (1970), appeal dismissed 401 U.S. 986 (1971); People v. Beakes Dairy Co, 222 NY 416 (1918).
Here, there is no actual or threatened injury that the defendant advances which gives him a demonstrated constitutional right to drink alcohol in public places. Moreover, the right of municipalities to regulate the consumption of alcoholic beverages in public has been recognized in New York State. People v. Finch, 88 Misc 2d 581 (Sullivan County Just. Ct. 1976); People v. Elhage, 147 AD2d 911 (4th Dept. 1989); New York Comptroller Op. 86-72 (1986); New York Attorney General Op. 2003-13. This right is underscored by the City's right to regulate the use of municipal property and enact ordinances that tend to preserve good order, peace, health, and the safety and welfare of its inhabitants. Second Class Cities Law § 30. "In 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 NY2d 333, 337 (1969); see also, People v. Uplinger, 58 NY2d 936; People v. Onofre, 51 NY2d 476, 492 (1980). The Court now turns to the particular constitutional challenges raised in the defendant's motion:
While the defendant asserts that he has been aggrieved by the unconstitutional enforcement of the statute in that its selective enforcement constitutes a violation of the Fourteenth Amendment, the defendant has failed to sufficiently demonstrate that a pattern of discrimination has been consciously practiced, rather he merely suggests that non-enforcement of the ordinance has occurred within the city, but this is insufficient to sustain a constitutional violation. Yick Wo v. Hopkins, 118 U.S. 356 (1886); People v. Friedman, 302 NY 75, 81 (1950).
Despite the claim that the ordinance is vague and ambiguous, this court finds otherwise. The statute provides that "No person shall have in his or her possession any open container containing an alcoholic beverage in any public place with the intent to consume the same in such public place of the City of Poughkeepsie." Poughkeepsie City Ordinance § 14-19(d). The statute includes exemptions and an applicability provision. Poughkeepsie City Ordinance § 14-19(e) and (f). The statute defines public place to "includes all areas of the public parks of the City of Poughkeepsie, such areas designated by the city as picnic areas, golf courses, highways, roads, streets, sidewalks and publicly owned and maintained malls."Poughkeepsie City Ordinance § 14-19(b). It has been previously held that the reasonable regulation of the possession of alcoholic beverages is not unconstitutional, but it is only where a statute outright proscribes the possession of a container of alcohol which has been deemed unconstitutional on the basis that such regulations fail to bear a reasonable relation to the public good, because if uniformly enforced, it would prohibit the acquisition of all alcoholic beverages for all purposes. People v. Lee, 58 NY2d 491 (1983). Here, the statute is specific and has exemptions and an applicability provision. It does not prohibit the possession of all alcohol in a public place, but only possession with the intent to consume the ...