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Defendants Move for Suppression of Evidence in Aiding and Abetting Case


This case involves consumption of alcohol by our youth. The defendants, where charged of aiding and abetting and acting in concert, of hosting a party for their daughter at their home where they allowed 13 persons, each of which was under the age of 21 years, each having dates of birth after the year of 1989 to consume alcohol on their property. The proponent alleged that defendants knew that the 13 persons were under that age of 21, due to the fact that they were the same age as the defendants’ daughter, who was under age 21, and defendants knew that the youths were not legally allowed to consume alcohol. Further, proponent alleged that the defendants admitted to knowing that alcohol was being consumed at their home by persons under the age of 21, and nevertheless allowed such activity to continue.

A Lawyer said that, in 1983, according to coroner’s data, 21% of all 19 and 20 year olds who died in New York were legally intoxicated at the time of their death. The leading cause of death for 19 and 20 year olds is motor vehicle accidents. Although 19 and 20 year olds represented only 4.1% of the licensed drivers in 1983, they were responsible for 13.4% of all alcohol-related fatal crashes and 12.8% of all alcohol-related injury producing crashes.

Defendants move to: (1) suppress defendants’ statements pursuant to CPL § 710.20; (2) suppress evidence pursuant to CPL §§ 710.20, 710.60 and 710.70; (3) dismiss the accusatory instrument for facial insufficiency; and (4) obtain disclosure of prior bad acts pursuant to CPL § 240.43.

The issue in this case is whether defendants are entitled to the suppression of the evidence against them.

The Court said that, since the issue of the facial sufficiency of the information is dispositive of the entire proceeding, it will be addressed first.

A misdemeanor complaint or a count thereof, is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in section 100.15; and (b) the allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.

Under CPL § 100.15, a misdemeanor complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the “complainant.” The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The accusatory part of each such instrument must designate the offense charged. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. In order for information to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

Here, the information clearly sets forth the court with which it was filed and the title of the action. It is subscribed and verified by PO Gomez as complainant. It states that the allegations are made on the complainant’s direct knowledge. It contains an accusatory part that designates the offense charged, and a factual part that contains facts supporting or tending to support the charge. Thus, the form of the information appears to comply with CPL § 100.15. That does not end the inquiry. The factual allegations must allege every element of the offense charged and be supported by non-hearsay evidence.

The elements of Penal Law § 260.20 are:

(a) The person charged must give or sell or cause to be given or sold;

(b) Any alcoholic beverage, as defined by section three of the alcoholic beverage control law;

(c) To a person less than twenty-one years old.

In the case at bar, there is no allegation that either defendant or anyone else gave or sold any alcohol to anyone. This failure to allege that anyone gave or sold alcohol to a minor alone might be sufficient to grant the motion. If no one sold or gave alcohol, defendants could not have caused alcohol to be sold or given. There are sufficient allegations in the information of alcoholic beverages (Bud Light) being imbibed by persons under 21 years of age. The issue presented is what constitutes “cause to be given” under Penal Law § 260.20 and if the facts alleged in the superseding information, given a fair and not overly technical reading of them hosting a party in one’s home and knowingly allowing and observing persons known to be underage consuming alcohol constitutes “cause to be given.”

Penal Law § 260.20 make a person guilty of unlawfully dealing with a child in the first degree when: He causes to be given or sold alcohol to a minor. Penal Law § 260.20 does not define what “causes to be given” means. Its meaning is neither clear nor unambiguous. Several other laws use the phrase “causes to be given” but, like Penal Law § 260.20, none expressly sheds any light on what the phrase means. Alcoholic Beverage Control Law § 65 is the most pertinent since it concerns alcohol and minors. It provides “No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages. Alcoholic Beverage Control Law § 65 is designed to embrace conduct where parties participate directly or indirectly in actual immediate service to a minor, or knowledgeably and voluntarily, singly or in combination, or under circumstances that should impart knowledge, act so as to permit delivery of an alcoholic beverage to such minor.

While generally penal statutes are strictly construed against the People and in favor of the accused, this general rule does not apply to the Penal Law, but its provisions must be construed according to the fair import of its terms to promote justice and affect the objects of the law.

Giving “cause to be given or sold” a fair and not overly technical reading, the minimum required to sustain a charge under this language requires that the defendants do something that is a necessary and proximate cause of a sale or gift of alcohol to a minor. While purchasing keg of beer and providing drinking glasses for a minor’s birthday party would likely be sufficient, building a house where, five years later, alcohol is sold or given to minors would appear insufficient. This case is much closer to the later than the former. Clarifying the line between the prohibited and the permissible will have to await a case by case evolution or an act of the State Legislature.

Based on the foregoing, the Court finds that mere hosting with observation and knowledge of consumption of alcohol by minors is itself not causing alcohol to be sold or given in violation of Penal Law § 260.20. What the defendants are charged with doing was ill-advised, foolish and wrong, but that does not make it a crime. It is not socially tolerable, but the Legislature has not made it illegal.

If the Legislature wishes to criminalize the knowing passive hosting of parties at which alcohol is served to minors, it certainly may and probably ought to do so. Even if the State Legislature is not so inclined, the City of Rye appears to have the authority to prohibit knowing passive hosting. The Attorney General has opined that a municipality has the authority to enact a local law that would prohibit any person over 16 years of age from hosting a party at premises under his or her control where five or more minors (meaning any person under 21 years of age) are present and alcohol is being consumed by any minor. There are remedies for future situations such as occurred here, but those remedies lie with the legislative bodies, and not the Courts.

Pending legislative action, the police and prosecutors are limited by the language of the law as it now stands. Their diligent efforts in this case to protect minors and the public from injury were the right thing to do and they did the best they could, but they are encumbered by the limiting wording of the statute.

Thus, the Court ordered that the defendants’ motion to dismiss the information is granted and the remainder of their motion is denied as moot.

Consumption of alcohol by youth is one of the reasons for accidents resulting to death or injuries. Parents must serve as an example to their children. If you have been improperly charge of abetting and aiding alcoholic drinks to minors, you need the advice of a Queens Injury Attorney and/or Queens Personal Injury Accident Attorney. Stephen Bilkis and Associates will protect your rights.

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