People v. Griesebacker , 173 N.Y.S.2d 934 ( 1958 )

This is an appeal from a conviction of a violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law. Section 65, “ Prohibited sales ”, states: “ No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1. Any minor, actually or apparently, under the age of eighteen years”. Under section 130, a violation of the above is a misdemeanor, so there must be proof beyond a reasonable doubt of the guilt of this defendant. The facts are not in dispute. A minor under the age of 18 years, ordered and was served a coca-cola in a restaurant. His five companions, adults, ordered and were served beer. All were served food. At some time the youth exchanged glasses with a companion and drank some of his beer. The complaining witness observed the youth holding the glass and issued a summons to the defendant, the waiter who served the table. There is no proof that the defendant saw the youth make the exchange or that he even knew of it. The service cheek, in evidence, confirmed the orders. The argument of the People that the defendant at least indirectly permitted an alcoholic beverage to be given away to an under 18-year-old minor in violation of the statute is without merit. We believe there is a rule of reason to be applied. The language of the statute is designed to embrace conduct where parties participate directly or indirectly in actual immediate service to a minor under 18 years of age, or knowledgeably and voluntarily, singly or in combination, or under circumstances that should impart knowledge, act so as to permit the delivery of an alcoholic beverage to such minor. Judgment is unanimously reversed upon the law and the complaint dismissed, and the fine remitted. Concur — Botein, P. J., Breitel, Rabin, Stevens and Bergan, JJ.