People v. Knickerbocker

GREGORY A. GATES, J. The "defendant" is charged with violating Alcoholic Beverage Control Law § 65-c. While not a penal statute in the true sense of the word, it does provide that "no person under the age of twenty-one years shall possess any alcoholic beverage, as defined in this chapter, with the intent to consume such beverage." (Alcoholic Beverage Control Law § 65-c [1].) Exceptions to the statute for educational and parental-provided alcohol use However, in strictly construing the statute, as I must do, I find that it proscribes prospective conduct only. By its very terms, Alcoholic Beverage Control Law § 65-c prohibits the present possession of alcohol with an intent to consume it either right then, or later. While it is clear through Officer Buttacavoli's observations and the defendant's admissions that she had previously consumed an alcoholic beverage, there is no proof of an intent to do so then or later. I am trying desperately to avoid a tortured interpretation of this statute. It is presumptively and otherwise valid. That said, however, we cannot expand it beyond the scope anticipated by the Legislature in its selection of the language chosen. I believe a fair interpretation of section 65-c proscribes present possession and consumption. For example, an observation of someone under the age of 21 actually drinking an alcoholic beverage would establish its possession and, a fortiari, a consummated intent to consume it. Moreover, actual evidence of possession with proof of intent to consume it would also pass muster. Here, however, the only evidence of the defendant's possession and consumption are an odor of alcohol from who knows how long ago and cans of beer which could have been possessed by anyone in the apartment. The underage and overindulgent consumption of alcohol must be discouraged and, as appropriate, legislated against. Alcoholic Beverage Control Law § 65-c does exactly that. However, I cannot read the statute to prohibit past consumption. The statute does prohibit present or future consumption and the possession of alcohol for future consumption. In this case, the evidence does not meet or exceed those standards and the charge is therefore dismissed.