People v. Post — 163 A.D. 119

Majority

p. 119

The People of the State of New York, Respondent, v. Charles Post, Appellant.

Third Department,

July 1, 1914.

Headnote

Intoxicating liquors — crime — sale on Sunday by one not holding certificate —jurisdiction of County Court.

There is no punishment prescribed in subdivision 1 of section 36 of the Liquor Tax Law for the sale of intoxicating liquors on Sunday by a person not holding a liquor tax certificate; but the provisions of subdivision 2 apply to such a ease. By subdivision 1 of section 37 it is provided that where the punishment for any offense is fixed by subdivision 2 of section 36 the crime shall be prosecuted by indictment and by a trial in a court of record.

Hence, a County Court has jurisdiction of the crime of selling liquor on Sunday in violation of subdivision A of section 30 of the Liquor Tax Law by one not holding a liquor tax certificate.

Appeal by the defendant, Charles Post, from a judgment of the County Court of Schenectady county, rendered against him on the 2Tth day of March, 1914, convicting him of a violation of the Liquor Tax Law. (See Consol. Laws, chap. 34

p. 120

[Laws of 1909, chap. 39], § 30, subd. A, as amd. by Laws of 1910, chap. 494.)

Loucks & Alexander [ William Dewey Loucks of counsel], for the appellant.

Alexander T. Blessing, District Attorney, for the respondent.

The record shows that the defendant was indicted for a violation of subdivision A of section 30 of the Liquor Tax Law, which is a Sunday sale. The defendant was not the holder of a liquor tax certificate. He was indicted by a grand jury and was tried and convicted in the County Court. He challenges the jurisdiction of the County Court, and claims that the Police Court of the city of Schenectady had exclusive jurisdiction of the offense with which he is charged.

Any willful violation of the Liquor Tax Law, for which no punishment or penalty is otherwise provided, is, by subdivision 5 of section 36 (as amd. by Laws of 1910, chap. 485), made a misdemeanor. By subdivision 2 of section 37 of the Liquor Tax Law Courts of Special Sessions are given exclusive jurisdiction to try and determine all violations of the Liquor Tax Law included within subdivision 5 of section 36. The Police Court of the city of Schenectady is clothed with the same power in this particular as Courts of Special Sessions. (Second Class Cities Law [Consol. Laws, chap. 53; Laws of 1909, chap. 55], § 183.) Therefore, the question arises here, whether any other punishment or penalty is provided by the Liquor Tax Law for a Sunday sale by a person not holding a liquor tax certificate. Subdivision 2 of section 36 (as amd. by Laws of 1910, chap. 485) reads: “Any person who- * * shall violate * * * section * * * thirty shall he guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine of not more than five hundred dollars or by imprisonment in a county jail or penitentiary for a term of not more than one year, or by both such fine and imprisonment, * * * but this clause does not apply to violations of section thirty of this chapter, by a person not holding a liquor tax certificate, * * "x" the punishment for which is provided in the first

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clause of this section.” That is to say, if subdivision 1 of section 36 (as amd. by Laws of 1910, chap. 485) prescribes a punishment for a violation of section 30 by a person not holding a liquor tax certificate, the offender must suffer that punishment instead of the punishment prescribed by subdivision 2. If, however, no punishment is prescribed for the offense in subdivision 1, in that event the offender must suffer the punishment prescribed in subdivision 2. There is no punishment prescribed in subdivision 1 for a Sunday sale by a person not holding a liquor tax certificate. Therefore, the provisions of subdivision 2 attach to such a case and the punishment prescribed therein must be imposed upon the offender.

By subdivision 1 of section 37 of the Liquor Tax Law it is provided that where the punishment for any offense is fixed by subdivision 2 of section 36, the crime shall be prosecuted by indictment and by a trial in a court of record. It follows that the County Court had jurisdiction of the offense charged and that the offense was properly prosecuted by indictment and that the Police Court of the city of Schenectady had no jurisdiction of the alleged violation. This question has been passed upon before by this court. (People v. Parisi, 147 App. Div. 466 .)

The appeal should be dismissed and the judgment of the County Court affirmed.

All concurred.

JudgmenLof conviction affirmed.

Cases cited

People v. Parisi 147 App. Div. 466 N.Y. App. Div. 1911-11-29 p. 121