People v Tobaly

[*1] People v Tobaly 2010 NY Slip Op 51074(U) [27 Misc 3d 1236(A)] Decided on March 22, 2010 District Court Of Nassau County, First District O'Brien, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 22, 2010; it will not be published in the printed Official Reports.

Decided on March 22, 2010
District Court of Nassau County, First District

The People of the State of New York,

against

Sasha Tobaly, Defendant(s)



14911/09



Susan Lutinger, Esq. Assistant District Attorney, Nassau County District Attorney's Office, 99 Main Street, Hempstead, NY 11550, Attorney for Plaintiff

Barry Black, Esq. 845 Third Ave., 8th Floor, New York, NY 10022-6601, Attorney for Defendant

William J. O'Brien, J.

The defendant moves for omnibus relief, one branch of which seeks dismissal of the accusatory instrument as facially insufficient. Because that branch of the motion is granted, the balance of the motion need not be considered.

The defendant is charged by "Misdemeanor Information" with one count of violating Nassau County Local Law, Title 64, "Social Host Law", § 4. That provision of the local ordinance reads as follows:

"§4. Unlawful consumption of alcohol by minor at a residence. a. It shall be unlawful for any person over the age of eighteen who owns, rents, or otherwise controls a private residence, to knowingly allow the consumption of alcohol or alcoholic beverages by any minor on such premises or to fail to take reasonable corrective action upon learning of the consumption of alcohol or alcoholic beverages by any minor on such premises. Reasonable corrective action shall include, but not be limited to: 1) making a prompt demand that such minor either forfeit and refrain from further consumption of the alcoholic beverages or depart from the premises; and 2) if such minor does not comply with such request, either promptly reporting such underage consumption of alcohol I) to the local law enforcement agency or ii) to any other person having a greater degree of authority over the conduct of such minor.b. The provisions of this subdivision a of this section shall not apply to: I) the consumption of alcohol or alcoholic beverages by a minor whose parent or guardian is present and has expressly permitted such consumption; or ii) the use and consumption of alcohol or alcoholic beverages by a minor for religious [*2]purposes."

Thus, as noted by Judge Engel in People v. Anderson, 2009 WL 3130180, in order to be facially sufficient, an information charging an individual with a violation of Nassau County's Social Host law "...must contain non-hearsay allegations which, if true, establish each of the following elements: (1) that the Defendant is over the age of eighteen years; (2) that the Defendant either owned, rented or otherwise controlled a private residence; (3) knowingly allowed the consumption of alcohol or alcoholic beverages by minors on the subject premises; or (4) failed to take reasonable corrective action upon learning of such consumption."

The Misdemeanor Information in this case is sworn to by Police Officer Kathleen Adcock (it is noted that Officer Adcock actually signed the document on the wrong line - the line provided for the officer before whom the attestation is taken and the actual signature line bears the signature of a police lieutenant who did not respond to the scene, however this minor defect is one of form which can safely be ignored). The "to wit" clause of the accusatory instrument provides, in its entirety, as follows: "On May 2nd, 2009, at approximately 1145 pm, while assigned to a medical aided case at 6 Creek Rd, deponent (P.O. Adcock) observed an 18 year old female, Marissa Eisenberg, DOB XX/XX/91, slumped down in a chair, breathing, but vomiting and not verbally responsive. Deponent observed that the aided had an odor of an alcoholic beverage on her breath. Witness, Leanne Gale, stated to deponent that her friend Marissa had been at the party at 6 Creek Rd since 9:30 PM, was dropped off at the house by another friend's mother, and was not intoxicated when she arrived. Leanne's mother, Dr. Tsiporah Shore, was called to the house by her daughter. She arrived, assessed Marissa's condition, and called 911 for an ambulance to transport aided to the hospital for treatment. Sasha Tobaly informed deponent that his parents were the owner's (sic) of the house and that he was left in control of the premises. Mr. Tobaly stated to deponent that he knew that Marissa had been drinking at the house, but that she arrived at the house drunk, and that he had no control over what other people do. Deponent observed empty beer cans on the front lawn of the property and noticed a strong odor of alcoholic beverages at the premise (sic)."

The court concludes that the accusatory instrument in this case fails to establish non-hearsay allegations of fact as to most of those elements.

First, with respect to the element that the defendant was over the age of eighteen years of age at the time of the alleged incident, this fact is simply ignored in the accusatory part of the instrument. However, this is a defect which is curable by amendment and the People do request leave to amend. Were this the only defect, the motion to dismiss would have to be denied (CPL § 170.35, 1., (b)).

Secondly, with respect to the element that the defendant either owned, rented or [*3]otherwise controlled a private residence, there is no allegation within the accusatory instrument that the named location, described by address and as a "house" was a private residence. Furthermore, the only assertion that the defendant was "in control" of the premises is a statement attributed to the defendant by Officer Adcock in which he states to the officer that his parents are the owners of the house and he was left "in control". The element of control of the premises is a thorny issue in cases such as this one in which the person charged clearly was not the owner or tenant of the premises. This issue is addressed by the parties in the moving and opposing papers, however for purposes of this motion, the court holds only that this conclusory statement attributed to the defendant, to the effect that he "controlled" the premises does not, in and of itself, establish reasonable cause to believe that the defendant was in control of the premises within the meaning of the statute (CPL §100.40, 1., (b)). It is clear that a child of an owner of premises has no right to dispose of, alter or otherwise impair the rights of the parent to use and enjoy the premises and it is also clear that defendant's own assumption that he had the right to "control" the premises does not establish the legal existence of control. One cannot create authority which does not exist by merely stating that one has authority (Colonie Hill, Ltd. v. Duffy, 114 AD2d 879, mot for lv to app dism 68 NY2d 753). The accusatory instrument includes no allegation which tends to establish that the defendant controlled the premises other than the defendant's own statement.

With respect to the element that the defendant knowingly allowed the consumption of alcohol on the premises by a minor, there is no allegation within the body of the accusatory instrument which suggests the manner in which the defendant knew or should have known that the individual who was allegedly found to be intoxicated on the premises was a minor. There is no allegation that the defendant and the allegedly intoxicated person were schoolmates or that they were known to each other in any way prior to the incident. Indeed, the assertion that the individual was under the age of twenty-one (a "minor" as defined in Local Law 64, Section 3, subdivision d.) does not appear by non-hearsay allegation within the body of the accusatory instrument, however the People have supplied a certified copy of the birth certificate for the allegedly intoxicated person and they have asked to annex it to the accusatory instrument. While this would cure the deficit of proof with respect to the actual age of the individual, it does not and cannot cure the absence of reasonable cause to believe that the defendant knew or should have known that the person was a minor.

Finally, with respect to the element that the defendant failed to take corrective action, it is noted that the defendant contends that contrary to the assertions contained in the accusatory instrument, he actually contacted the authorities to request emergency assistance for the allegedly intoxicated person. As to this element, the court is satisfied that the accusatory instrument would be sufficient since the allegation of fact set forth therein suggests that it was a third party who contacted 911, not the defendant. That is an issue of fact which would otherwise have to be resolved at trial and not a facial sufficiency issue. [*4]

Accordingly, the motion to dismiss for facial insufficiency is granted, CPL § 170.35, 1.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: March 22, 2010

CC:Hon. Kathleen M. Rice, District Attorney

Gallet, Dreyer & Berkey, LLP

WJO:ju