I was recently given a summons in New York City for an Open Container
of Alcohol; Violation sec 10-125 sub 2b (it is not 100% clear on the
summons).

What type of crime is it?  What is the typical fine/punishment?  Is it
advisable to bring legal consel?

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Request for Question Clarification by justaskscott-ga on 01 Dec 2002 20:06 PST

Were you in a car or, instead, in a public place when you received the summons?

To what court does the summons require you to go?

Are there any other details on the summons that might help us to find the answer?

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Clarification of Question by dustyngobler-ga on 01 Dec 2002 21:29 PST

I was walking down the street with an alcoholic drink in a brown bag. 
I need to go to the 346 Broadway Criminal Court in New York City.

Hello dustyngobler!

Wow. New York doesn’t make it easy on a researcher. But I think that
you will find this information interesting.

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You were issued a summons for a violation of the New York City
Administrative Code, section 10-125, consumption of alcohol in public:

§ 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 liable for a civil penalty of not
more than one hundred ($100) dollars for each violation, which may be
recovered in a proceeding before the environmental control board. Such
proceeding shall be commenced by the service of a notice of violation
returnable before such board.

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Note that this is a CIVIL VIOLATION and not a criminal violation, and
that it is punishable by a maximum fine of $100.00

An example of a civil violation is a basic speeding ticket. It is NOT 
a criminal offense and would not subject you to reporting that you
have been “arrested”.

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Lawyer?

Difficult call. 

If you have a job or hope to have a job where any sort of record with
the court system could call your background into question, I would
strongly suggest hiring an attorney. Now with that said, you will be
spending probably $500 in attorney fees for a civil violation with a
$100 maximum penalty.

If you think that you did not violate the law, and want to keep your
record clear, hire an attorney.

If you want to do some research and go it alone in front of the judge,
and believe that you have not violated the law as written, as much as
I hate advising people to represent themselves, this MAY be a case
where that MAY be advisable. (You know the old saying: He who
represents himself/herself has a fool for a client.)

Or you could go down to the courthouse and pay the fine and be done
with it.
**************************************
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AN INTERESTING CASE YOU SHOULD KNOW ABOUT:

In 2001 a fellow by the name of Merlin Cunninham got busted for the
same offense, and fought it in the courts and won.  The case, People
of the State of New York versus Merlin Cunninham, 727 N.Y.S.2d 281
(New York City Criminal Court, May 9, 2001) stood for the following
propositions:

Defendant was charged with consuming alcohol in public. The Criminal
Court, New York County, Judge Analisa Torres, held that summons was
facially insufficient.
Summons dismissed.
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).

Defendant, Merlin Cunningham, is charged with consuming alcohol in
public, in violation of Administrative Code of the City of New York §
10- 125(b).
On April 7, 2001, Officer Robert F. McPartland served defendant with
what is commonly known as a "universal summons." The accusatory
instrument states that on that date, at 234 West 33rd Street in
Manhattan, Officer McPartland observed defendant "consume a 24 [ounce]
can of St. Ide[']s Malt Liquor in a public place[,] ... Penn Station,
a transportation facility."
In order to be facially sufficient, a universal summons must satisfy
the requirements applicable to informations. An information must
contain non-hearsay allegations of an evidentiary nature that provide
reasonable cause to believe that the defendant committed the offense
charged. The non-hearsay allegations, if true, must establish every
element of the offense.

When a statute contains an exception, the accusatory instrument must
allege that the conduct charged does not fall within the exception..
In other words, the accusatory instrument must state facts which
negate the exception.

The summons is facially insufficient in two respects.

First, under Administrative Code § 10-125(a)(1), the accusatory
instrument must allege that the beverage contains more than one-half
of one percent of alcohol. Because the summons does not state that the
malt liquor consumed by defendant contains more than one-half of one
percent of alcohol, it is facially insufficient.
Second, Administrative Code § 10-125(b) prohibits consumption of
alcohol in public, unless it takes place at "a block party, feast or
similar function for which a permit has been obtained." Because the
summons fails to allege that defendant's consumption did not occur at
such a function, it does not state every element of the offense and is
facially insufficient.

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**************************************

HERE IS THE ENTIRE TEXT OF THE CUNNINGHAM CASE:

The People of the State of New York, Plaintiff, v. Merlin Cunningham,
Defendant.

Docket No. 2001SN040175 

CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 

188 Misc. 2d 184; 727 N.Y.S.2d 281  
May 9, 2001, Decided 

 

Analisa Torres, J. 

Defendant, Merlin Cunningham, is charged with consuming alcohol in
public, in violation of Administrative Code of the City of New York §
10-125 (b).

On April 7, 2001, Officer Robert F. McPartland served defendant with
what is commonly known as a "universal summons." *  he accusatory
instrument states that on that date, at 234 West 33rd Street in
Manhattan, Officer McPartland observed defendant "consume a 24 [ounce]
can of St. Ide[']s Malt Liquor in a public place[,] ... Penn Station,
a transportation facility."


  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
  
* The terms "universal summons" and "summons" as used in this opinion
do not refer to the summons defined in CPL 130.10.
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

Administrative Code § 10-125 (b) provides that:  

"[n]o 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."

Under section 10-125 (a) (1), "alcoholic beverage" is defined as any
liquid intended for human consumption containing more than one half of
1% (.005) of alcohol by volume.

In order to be facially sufficient, a universal summons must satisfy
the requirements applicable to informations. (People v Rodman, 32 NY2d
821, 822 [1973].) An information must contain nonhearsay allegations
of an evidentiary nature that provide reasonable cause to believe that
the defendant committed the offense charged. The nonhearsay
allegations, if true, must establish every element of the offense.
(CPL 100.40 [1]; 100.15 [3]; People v Alejandro, 70 NY2d 133, 137
[1987].)

When a statute contains an exception, the accusatory instrument must
allege that the conduct charged does not fall within the exception.
(People v Kohut, 30 NY2d 183, 188 [1972]; People v Diaz, 147 Misc 2d
121, 123 [Crim Ct, NY County 1990].) In other words, the accusatory
instrument must state facts which negate the exception. (People v
Diaz, supra, at 124.)

The summons is facially insufficient in two respects. 

First, under Administrative Code § 10-125 (a) (1), the accusatory
instrument must allege that the beverage contains more than one half
of 1% of alcohol. Because the summons does not state that the malt
liquor consumed by defendant contains more than one half of 1% of
alcohol, it is facially insufficient.

Second, Administrative Code § 10-125 (b) prohibits consumption of
alcohol in public, unless it takes place at "a block party, feast or
similar function for which a permit has been obtained." Because the
summons fails to allege that defendant's consumption did not occur at
such a function, it does not state every element of the offense and is
facially insufficient.

Accordingly, the summons is dismissed. 

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Best of luck with this little problem.
If you have any questions, please click on the “Clarification” button
and I will get back to you as soon as I can.
All the best,
Weisstho-ga

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Clarification of Answer by weisstho-ga on 01 Dec 2002 22:51 PST

OOPS. 

One other thought:  If the summons is incorrect (for example, it cites
the wrong code section, or incorrectly cites the code) or has other
deficiencies, that may be sufficient to have the judge toss the case
out and dismiss. Always worth a try.

Again, good luck.
weisstho-ga

Best answer I've gotten with this service.

Hey Dusty - I got the exact same ticket for the exact same thing this
past Saturday night. I think the grounds for dismissal above would
definitely apply to my case. Did you end up fighting the ticket and,
if so, how did it go and is there any advice you could give me?

Dek-

Where did you get yours?  I am in the same situation - anything
anybody knows would be very helpful.

Actually, the cop filled out the summons wrong and the case was thrown
out.  Sorry :-(

Hello, I got this same stupid ticket, mine says in violation of 
10-125(c)

Basically, I was outside of a bar and people were smoking, so I
thought that I was OK since I bought the beer at the bar which I was
directly outside of.  The bar did not tell me that I could not walk
outside with the beer so I thought I was on thier property and within
the law.

Also the guy that gave me a ticket said that I only had to send in a
$25 check, he never said that I'd go to court, "its like a parking
ticket he said"

so, here is my question, if I plead not guily and go to a trial, is it
easy to respresent myself in this kind of thing?  And, if I do loose
the trial, can I get into any more trouble than I would have had I
pleaded guilty?

finally, are you sure this is only a civil offece because it does say
criminal court on the ticket...

thanks a lot for your help..

Hello, elbst23 - I believe that the answer I provided to the original
question works equally well for you.

As to your first question - you can always go to court and contest the
ticket. Now, a civil infraction (which this charge certainly appears
to be - and, yes, a civil infraction may be handled by the criminal
court - a speeding ticket, for example, is a civil infraction. So is
running a stop sign), a civil infraction only requires proof by a
preponderance of the evidence (the cop needs only to show by 51% that
you are "responsible" - no "beyond a reasonable doubt" stuff here)and
so your defenses would have to be pretty good. Ignorance of the law,
remember, is no excuse.

Sounds like you are "responsible" (guilty) - you were outside the bar
and you are deemed to know the law - pay the ticket.

If you were to fight it - no, you cannot (generally - and in almost
every case) be placed in greater jeopardy if you fight it and lose.

Many people feel, and quite rightly, that you will almost always get a
better deal from the judge or the magistrate when you show up and
fight the ticket as opposed to paying it right off. Problem with that
is that it takes time.

weisstho-ga

I recently got this summons as well, and if you go in and pay the fine
I was wondering what it means exactly to have this on your records? Is
this any worse then having a parking ticket on your record?  Is this
something that is going to impede from getting jobs or finding an
apartment?

This will almost undoubtedly NOT impair your record. As you might
recall, the relevant question is whether "you have been convicted of
any misdemeanor or felonies?"  or, in the alternative, whether you
"have been convicted of any crime?"  The keys here are that
misdemeanors and felonies are "crimes", whereas a civil infraction
(e.g. parking tickets, speeding tickets) are "civil infractions" - a
classification of offense which includes the same offense that we are
talking about here.

Don't sweat it. You're cool.

weisstho-ga

Good News!  According to today's amNew York, you no longer need to go
to court for this violation.  You can just mail in $25.  I got one a
few years ago and waited five hours to stand up and say "guilty". 
Then I had to wait in another line to pay the fine.  This is just in
time for the fireworks on the 4th.  If you can finish a few beers
before getting the ticket it's cheaper than a bar.

Not sure about that. I got one a week ago and I need to show up.  Any
other sources state that you can just send in $25?  Also, my summons
does not state the alcohol content of my drink (doesn't even say it
was alcoholic) and doesn't say it wasn't ata block party, etc.  Would
either of those truely still be enough grounds to dismiss the case? 
Also on the summons, the officer wrote MA fro the state instead of MD
(I have a MD liscense).  Is that grounds for dismissal?  Thanks for
your help.

Drinking From a Brown Bag? Put Your Fine in an Envelope
By EDDY RAMÍREZ

Published: July 2, 2004
New York Times


Anthony Jordan stood inside the Summons Court in Lower Manhattan
yesterday, his face red with indignation as he waited in line with $15
in his hand and a police officer by his side.

Mr. Jordan, a 30-year-old record shop owner, had been cited in May for
having an open bottle of alcohol while he was with friends outside his
house in Brooklyn. He had to spend the better part of a day waiting in
various lines for his turn before a hearing officer, where he pleaded
guilty and waited in yet another line to pay his fine, accompanied by
a police escort.
 
"I wasn't even drinking," said Mr. Jordan, who paid the fine rather
than return to court to fight it. "I refuse to come back and miss
another day of work. This was just a waste of time."

But the lines in court may be shorter soon. Under a new rule that took
effect yesterday, New Yorkers who choose not to contest a charge of
carrying an open container, a violation comparable to a parking
ticket, can mail in a plea of guilty along with their fine, which is
usually $25. Those who want to dispute the charge can still plead
their case in court.

The rule was issued by the state's chief courts administrator,
Jonathan Lippman, to fix a faulty system that resulted in a high
number of dismissals and shortchanged the city of revenue from fines,
said John Feinblatt, Mayor Michael R. Bloomberg's criminal justice
coordinator.

In 2002, nearly 117,000 summonses were issued to New Yorkers accused
of having an open container of alcohol in public. But only 30 percent
of those cited were convicted. The rest either had their fines waived
in court or never showed up in court. "We were basically giving
everybody a free pass - a license to dodge the system," Mr. Feinblatt
acknowledged. Mr. Feinblatt said the new rule, first reported
yesterday in amNew York, was adopted after a yearlong pilot program in
Queens that allowed violators to pay fines by mail. The conviction
rate for Queens increased by 30 percent and the rate of dismissals
dropped by 63 percent, Mr. Feinblatt said.

"These were extraordinary results which proved that by redesigning the
system and using something as simple as mail you could stop people
from falling through the cracks," Mr. Feinblatt said.

Some people waiting in court yesterday pointed out that given the
likelihood that the charge would be dismissed anyway, it made more
sense to have their day in court than to mail in their fines, even if
the mail option was easier.

Hector Roa, a maintenance worker, said he had tried to reason with the
police officer who cited him for drinking outside his parents'
Brooklyn home.

"I says to him: 'What's the ticket for?' " Mr. Roa recalled. " 'That
bottle's not mine. I don't even like to drink.' " He requested a
breath test.

"And you know what he told me?" Mr. Roa said to the others who were
also waiting to appear before a hearing officer. " 'Don't even worry
about it. You'll go to court and it will get dropped.' "

Can you change the date of a summons for this type of violation?  If so, how?

I saw this too, but after speaking with the clerk's office, they
indicated that I need to see the Judge.  It's the same violation.  Is
there any place where the information is confirmed by the city?  I
basically just want to send in a check.  There is no information I can
find that provides this

Hello,
My ticket is 10-125 2b, summons; hoowever, the officer got the place
of occurence wrong, misspelled my name, my home address, did not print
his full name where it says "complainanat's full name(printed)", but
just the letter "R", nad I don't even think he had me sign it. Does
that look good for me? And what does "F/O" mean? Thank you for any
comments or advice.

I got this ticket on the 24th of June in Manhattan and my court date
is on the 11th of August. I was stupidly walking on the sidewalk with
a few buddies and I was drinking a beer from a bag. Well I got the
summons, and the cop told me that I have to go to court plead, (he
said you plead, pay a $10 fine and you're outta there) and pay the
fine.

Now this was before the July 2nd law thats says people can now mail in
their fine. I looked around on the net but I could not find an
official NYC article. I am also unsure wether or not violators who
recieved the summons before this mail in your fine law came to pass
are eligible. Any help would be greatly appreciated, as I sure as hell
do not wanna miss a day of work to have to go to court for no reason.

Thank you

anyone who has a summons for open container/underage drinking: if the
brand of the alcoholic drink is not listed, you case will be dismissed
by the judicial officer!
also, people with public urination tix: you cannot argue your case
unless you have a medical condition that prevents you from holding it
in.
also, SHOW UP EARLY!

I got this from Eddy Ramirez (the NYTimes reporter who wrote the July
2 story), who got it from John Feinblatt at City Hall.

The plea by mail form is explained and availabel for download:

http://www.courts.state.ny.us/courts/nyc/criminal/specialprojects.shtml#pleabymail

Plea By Mail

1.	The plea and pay pilot program was initiated on March 27, 2003 in
Queens.  The target offense was for Consumption of Alcohol in Public,
AC §10-125(b).
2.	The pilot program was expanded citywide on June 23, 2004.
3.	The plea by mail procedure is fully described on the summons forms
that are handed to a defendant.
5.	New York State Unified Court System created a web page that
explains terms of the citywide program and provides an on-line plea
form that can be used to pay a fine.  The webpage address is
<http://www.courts.state.ny.us>.  The plea form and other details of
the plan can be found on the website section entitled ?What?s New.?

I just got the same violation.  The officer listed as teh offense "
OPEN CONTAINER OF ALCOHOL IN PUBLIC ", he didn't put the brand like
you said.  I told the cop that I was just holding the bottle for
someone else but the other guy didn't have an ID on him so he said I
am getting the ticket.  He didn't make me sign the ticket.

Should I fight this in court.  Also will I have to pay a court fee.

carisma-
the most you can pay is the fine, no court fees. also, every
opencontainer ticket w/o brand that i saw in my time in the courtroom
got dismissed, even one for an underage kid, who later bummed me a
cigarette. the judic. officer just looked at the ticket and dismissed
it, no action on the part of the defnd. before you see the jo, you
have to stay in line to get a colored slip of paper that determines
what courtroom you go into, but you have to tell the clerk that you're
contesting.