People v. Ochel

Criminal Court of the City of New York

People v. Ochel

40 Misc. 2d 597, 243 N.Y.S.2d 78, 1963 N.Y. Misc. LEXIS 1654

CourtCriminal Court of the City of New York

DecidedSeptember 10, 1963

StatusPublished

This text of 40 Misc. 2d 597 (People v. Ochel) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Ochel, 40 Misc. 2d 597, 243 N.Y.S.2d 78, 1963 N.Y. Misc. LEXIS 1654 (N.Y. Super. Ct. 1963).

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Opinion

J. Howard Rossbach, J.

Defendant, the wife of a grocer, is charged with a violation of section 105-a of the Alcoholic Beverage 'Control Law. This section provides: “No person, firm or corporation holding any license or permit issued under this chapter shall sell, offer for sale or give away beer at retail on Sunday between three antemeridian and one postmeridian. Persons, firms or corporations holding licenses and/or permits issued under the provisions of the alcoholic beverage control law permitting the sale of beer at retail, may sell such beverages at retail on Sunday before three antemeridian and after one postmeridian for off-premises consumption”.

On the trial it appeared that defendant’s husband owned the store and was the licensee to sell beer. On Sunday, June 12, 1963, at 12:20 p.m., defendant made an ill-advised sale of six cans of beer to the officer in plain clothes and was served a summons therefor. Her husband, the licensee, who was standing near her, was not served.

Defendant’s counsel urges that defendant cannot be convicted of a violation of section 105-a on the ground that that section applies only to licensees. It seems clear that the Legislature had two objectives in enacting section 105-a:

1. Prohibit all sales of beer for off-premises consumption between 3:00 a.m. and 1:00 p.m. on Sunday.

2. Permit such sales by licensees before 3:00 a.m. and after 1:00 p.m.

[598]*598Unfortunately, some language from the permissive part of the statute was also placed in the prohibitory part. Consequently, as the statute now reads, the prohibition is limited to licensees. This is a statute enforcible by criminal sanctions. Its clear words of restriction may not be ignored by any surmise as to legislative intent. If the Legislature wishes to remove the restrictive category, amendment is simple. Defendant is acquitted.

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J. Howard Rossbach, J.

Defendant, the wife of a grocer, is charged with a violation of section 105-a of the Alcoholic Beverage 'Control Law. This section provides: “No person, firm or corporation holding any license or permit issued under this chapter shall sell, offer for sale or give away beer at retail on Sunday between three antemeridian and one postmeridian. Persons, firms or corporations holding licenses and/or permits issued under the provisions of the alcoholic beverage control law permitting the sale of beer at retail, may sell such beverages at retail on Sunday before three antemeridian and after one postmeridian for off-premises consumption”.

On the trial it appeared that defendant’s husband owned the store and was the licensee to sell beer. On Sunday, June 12, 1963, at 12:20 p.m., defendant made an ill-advised sale of six cans of beer to the officer in plain clothes and was served a summons therefor. Her husband, the licensee, who was standing near her, was not served.

Defendant’s counsel urges that defendant cannot be convicted of a violation of section 105-a on the ground that that section applies only to licensees. It seems clear that the Legislature had two objectives in enacting section 105-a:

1. Prohibit all sales of beer for off-premises consumption between 3:00 a.m. and 1:00 p.m. on Sunday.

2. Permit such sales by licensees before 3:00 a.m. and after 1:00 p.m.

[598]*598Unfortunately, some language from the permissive part of the statute was also placed in the prohibitory part. Consequently, as the statute now reads, the prohibition is limited to licensees. This is a statute enforcible by criminal sanctions. Its clear words of restriction may not be ignored by any surmise as to legislative intent. If the Legislature wishes to remove the restrictive category, amendment is simple. Defendant is acquitted.

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Bluebook (online)

40 Misc. 2d 597, 243 N.Y.S.2d 78, 1963 N.Y. Misc. LEXIS 1654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ochel-nycrimct-1963.