Criminal Court of the City of New York, Kings County
Charles J. Hynes District Attorney - Kings County, Attorneys for the People of the State of New York.
By: ADA Jacob Uriel Brooklyn Defender Services By: Debra Silberman Attorneys for defendant.
HON. NOACH DEAR, A.J.S.C.
The People commenced this criminal action against the defendant by the filing of an information which charged defendant with a violation of New York City's Open Container Law (New York City Administrative Code § 10-125[b] [hereinafter NYC AC 10-125[b] or open container law]). When the defendant was arraigned before me on May 13, 2012, I dismissed the information for facial insufficiency. My reasons for doing so are set forth below. My reasons for recommending that the practices and policies of the NYPD with respect to enforcement of the open container law be scrutinized are also set forth below.
NYC AC 10-125[b] states: "No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained." For purposes of this section, an alcoholic beverage is defined as "[a]ny liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume" (NYC AC 10-125[a]). The arresting officer stated that the cup contained beer based on professional training as a police officer in the identification of alcoholic beverages and that he recognized the odor emanating from the container as beer based on that training and experience.
NYC AC 10-125[b] provides that "[p]ossession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section." Thus, a person violates NYC AC 10-125[b] when he or she (1) intends (2) to drink or consume (3) an open container (4) containing any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume (5) in any public place except at a block party, feast or similar function for which a permit has been obtained.
To be sufficient on its face, the "[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof (CPL § 100.40[c]). This is referred to as the "prima facie case requirement" (People v Jones, 9 N.Y.3d 259, 262 ). An information which does not meet this requirement is jurisdictionally defective and mandates dismissal of the charges (People v Dreyden, 15 N.Y.3d 100 ; People v Kalin, 12 N.Y.3d 225 ; People v Casey, 95 N.Y.2d 354 ).
Here, the only non-hearsay allegations contained in the information are set forth in the supporting deposition of the arresting officer. He alleged that on May 12, 2012, at 6:55 p.m., he observed the defendant on a sidewalk at the corner of 27th Street and 4th Avenue drinking from a plastic cup containing an alcoholic beverage, namely beer. He stated that he concluded the cup contained beer based on his professional training as a police officer in the identification of alcoholic beverages and that he recognized the odor emanating from the container as an alcoholic beverage. He also stated the defendant told him he was drinking beer.
Here, the information is facially insufficient. First, it is not supported by non-hearsay allegations, such as by a certified laboratory test, that the beer that defendant was allegedly drinking contained "more than one-half of one percent (.005) of alcohol by volume" (see People v. Lopez, 170 Misc.2d 278, 281 [Crim Ct, Kings County 1996] [requiring a laboratory test to support an information charging a violation of VTL § 1192.2 - operating a motor vehicle while under the influence of alcohol with.10% or more blood alcohol level]). While the arresting officer's professional training and sense of smell may be sufficient to support his conclusion that defendant was drinking beer, such does not support the conclusion that the beer contained more than one-half of one percent (.005) of alcohol by volume because the beverage could have very well been non-alcoholic beer. Nowhere in his supporting deposition did the arresting officer allege that he was an expert in differentiating these types of beverages, and the Court will not assume that he had such an expertise.
Second, the information fails to satisfy the element that the drinking did not occur at "a block party, feast or similar function for which a permit has been obtained." Where, as here, the defining statute contains an exception, such is a material element that must be alleged in the accusatory instrument (see People v Santana, 7 N.Y.3d 234');">7 N.Y.3d 234, 235 ; People v Kohut, 30 N.Y.2d 183');">30 N.Y.2d 183, 187 ).
As the Court of Appeals explained "[e]ssential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" (People v Santana, 7 N.Y.3d at 236-237 citing People v Kohut, 30 N.Y.2d at 187).
Here, the clear wording of NYC AC 10-125[b] excludes from its prohibitions drinking, consuming and possessing alcoholic beverages at "block part[ies], feast[s] or similar function[s] for which a permit has been obtained." Further, alcoholic beverages with less than one-half of one percent of alcohol by volume are outside the prohibition. Since this action was commenced by information, not only did the absence of the existence of these exceptions have to be alleged in the information, the non-hearsay allegations of the factual part of the information and the supporting depositions, if true, had to establish the absence of the existence of the exception (CPL § 100.40[c]). As stated, they did not.
Finally, based on personal observations and other anecdotal evidence, such as conversations with other judges in Criminal Court and accounts in the press, I formed the impression that Blacks or Latinos are being disproportionately cited for violations of New York City Administrative Code § 10-125[b]. Over the several years that I have been sitting in Brooklyn Criminal Court arraigning people for open container violations, every single defendant was either Black or Latino. As hard as I try, I cannot recall ever arraigning a White defendant for such a violation.
To test the validity of my belief, I instructed my staff to review all of the adjudicated open container summonses for the month of April 2012 that involved Brooklyn residents from the Criminal Court records and files in Kings County. Only summons cases were reviewed. These cases begin when an NYPD Officer issues a summons, colloquially known as a "pink ticket" summons. The defendants in these cases typically appear in Criminal Court at 346 Broadway in Manhattan where the ...