People v. Foreman ( 1968 )

Alfred J. Weiner, J.

This is a motion to dismiss the information herein, upon the ground that same is defective in that it fails to allege sufficient facts to constitute a violation of subdivision 3 of section 484 of the former Penal Law. In substance, the information alleges that on the 28th day of February, 1967, at the Pomona Junior High School, Pomona, N. Y., the defendant sold one pint of wine to a 15-year-old girl for the sum of $1, in violation of subdivision 3 of section 484 of the former Penal Law.

The defendant argues that the statute prohibits certain activities as to children when carried on in certain resorts or by persons in certain kinds of businesses; and that the allegations in the information are of a single isolated sale of an alcoholic beverage on public property, which is not that type of act prohibited by the statute.

To get the sense of a statute, one must read the whole of it. The title of the statute is ‘ ‘ Permitting children To attend certain resorts Subdivision 3 (supra) must be read in conjunction with the six other subdivisions, each of which forbids certain commercial activities with children. No more was intended than the prohibition of certain activities as to children when carried on in certain resorts or by people in certain kinds of businesses (People v. Martell, 16 N Y 2d 245).

There is no allegation in the information that the defendant was engaged in the business of selling alcoholic beverages or that he was selling or giving away such beverage at a prohibited resort. The information is, therefore, fatally defective.

If the alleged act had been committed after September 1,1967, then the information would have been sufficient. The title of section 260.20 of the revised Penal Law is: “ Unlawfully dealing with a child ”. It is apparent that under this new statute, the Legislature is prohibiting the specific act of a person giving or selling any alcoholic beverage to a child except when that person is the parent or guardian of such child. It is no longer necessary that the act be carried on in certain places or by persons in certain types of businesses.

The information is dismissed