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Open Container and Being in a Park After Dark Symmons in New York (CRIMINAL LAW & PROCEDURE)

Mon, 06 Oct 2008 00:00:00 GMT
Tags: acquaintances, bronx, container, criminal, dark, friend, involves, law, met, park, procedure, state, symmons, york

My question involves criminal law for the state of: New York
At 11.50 pm, my friend and I met up with 3 other acquaintances at a park in the Bronx, New York. As my friend and I arrived, we started walking down through the park when a cop came from one end and asked us to walk towards him. When we walked toward him he asked for ID's and also checked the bag of one of the acquaintances who had a bottle of Captain Morgan half finished in a plastic bag. The cop then issued all 5 of us 2 summons each, one 10-125.2b for "open container" and the other 103.a1 for being "in park after dark." We are now to appear in court in December.

1. Should all 5 of us be given summons for open container even though the one acquaintance and only he had possession of the captain Morgan bottle?

2. Can anything be done to avoid going to court? (As I am a college student and have classes every week day)

All tips, advice, suggestions, help welcome!
Thank You,
MivaK

3. Can this summons be dismissed on the following grounds?
Summons charging defendant with consumption of alcohol in public was
facially insufficient for not stating every element of offense;
summons did not state that malt liquor consumed by defendant contained
more than one-half of one percent of alcohol as required by statute
and also failed to allege that defendant's consumption of alcohol did
not occur at block party, feast or similar function, as exception to
prohibition against consumption of alcohol in public. New York City
Administrative Code, 10-125(a)(1), 10-135(b).
as summons stated Description of Criminal Court Offense: "Open Container"

4. The park's entrance had no signs stating the park hours or any signs at all for that matter.

5. If found guilty or even not guilty, will this show up on my record?

All tips, advice, suggestions, help welcome!
Thank You,
Mivak

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  • Tue, 07 Oct 2008 19:34:00 GMT(1)

  • Quoting MivaK

    1. Should all 5 of us be given summons for open container even though the one acquaintance and only he had possession of the captain Morgan bottle?

    The officer apparently believed you were sharing the bottle. If you were not, you can try to use that as a defense.

    Quoting MivaK

    2. Can anything be done to avoid going to court? (As I am a college student and have classes every week day)

    Retain a lawyer, and see what your lawyer can work out. But you should expect that you will have to go to court.

    Quoting MivaK

    3. Can this summons be dismissed on the following grounds?

    Discuss that with your lawyer.

    Quoting MivaK

    4. The park's entrance had no signs stating the park hours or any signs at all for that matter.

    That's another thing you will want to bring to the attention of your lawyer. I'm not personally familiar with the park or what signs are (or are not) posted there.

    Quoting MivaK

    5. If found guilty or even not guilty, will this show up on my record?

    Criminal charges and their disposition, including dismissal or acquittal, can be expected to show up on your criminal record. If the charges are violations, though, those are regarded more like traffic tickets than criminal offenses.

    If you're accurately describing the code sections charged, it seems like the officer was a bit careless. Administrative Code Sec. 10–125(a)(2) is a definition. Sec. 10-135 relates to sale and possession of electronic stun guns, not presence in a park after hours. You can look up code provisions here.

    Quoting New York City Administrative Code, Sec. 10–125 Consumption of alcohol on streets prohibited.

    a. Definitions. Whenever used in this section, the following terms are defined as follows:

    1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume.

    2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city.
    b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.

    c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section.

    d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street.

    e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.

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