Opinion
February 8, 1968
Michael LoPinto for defendant.
Mathew McHugh, City Prosecutor, for plaintiff.
The defendant was previously arraigned before Acting City Judge KENNETH JOHNSON on August 3, 1967. The defendant has waived rearraignment before me and submits himself to the jurisdiction of this court as it is now constituted. Following his submission to jurisdiction the defendant has renewed his motion to dismiss the information for legal insufficiency.
As I review the information it merely states the defendant was found by the police officer having a beer party with certain minors present. One of the minors present, Jennifer Hutchings, was 18 years of age and certainly legally qualified to consume alcoholic beverages if she so desired. A second minor, Johannes W. Van Donsil, is alleged to be 17 years of age and, therefore, this section of the law does not include him. This leaves only Mary Durling, age 15, and Linda Newby, age 13, to be protected by the statute.
The other allegations concerning the party taking place under some bushes or that the party disturbed the neighborhood are irrelevant to the crime alleged and, therefore, not considered.
Nowhere in the information does it allege that the defendant even as much as offered beer to the two minors protected by the law or that they partook of it.
To hold that the mere presence of minors where alcoholic beverages are being served or where a "beer party" is taking place would, by its normal extension, outlaw and prohibit every backyard wiener roast, firemen's carnival or even the mere keeping of such in a parent's refrigerator. I know of no law which prohibits such an act.
In this information there is nothing alleging that the defendant did anything to actually cause or permit the life or limb of the minors to be endangered.
I do not agree that People v. Bergerson ( 17 N.Y.2d 398) is in point. In that case the indictment specifically set forth allegations indicating how the defendant endangered the child's life (the defendant permitted Higgins to leave the defendant's house late at night unattended by an adult and in an intoxicated condition and as a result of the defendant's acts and while so intoxicated the minor was struck by a motor vehicle and killed).
The information herein is dismissed on the grounds it is jurisdictionally defective.