The Case of the Missing Case

Recently an unreported decision of the upstate Margueritaville Justice Court came to our attention just in time for next week's holiday weekend:

VILLAGE JUSTICE COURT OF THE VILLAGE OF MARGUERITAVILLE
APPLEKNOCKER COUNTY: STATE OF NEW YORK
_________________________________________________x

PEOPLE OF THE STATE OF NEW YORK


- against-

PERRY MATERIA,

Defendant.
________________________________________________x

HON. GORDIE N. KNOTT, Associate Village Justice

This is one of several prosecutions of convenience store clerks for selling beer to a minor.

Penal Law Section 260.20, Unlawfully dealing with a child in the first degree, provides: " A person is guilty of unlawfully dealing with a child in the first degree when:... 2. He gives or sells or causes to be given or sold any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to a person less than twenty-one years old..." with statutory exceptions not relevant here. The crime is a class A misdemeanor.

Prior to the case at bar, a dreary parade of bedraggled minimum wage clerks humbly besought mercy from the court and were fined accordingly. I am not opposed to this kind of case, for were it not for such manufactured crimes in this sleepy community, there would be little need for my services as the Associate Village Justice.

This case, refreshingly, did not result in a plea of guilty. It concerns a local deli clerk, the defendant Perry Materia, who was employed as a counterman at the Kindest Cut of All Delicatessen. Materia is a first year law student clearly on his way to a stellar career in the defense bar. He opted for a trial at which he appeared pro se.

The prosecution's only witness was the agent provocateur Mister Marshall Javert. While he appeared clean shaven, on cross examination it was extracted from him that, on the date in question, he had a two day growth of beard, and was six feet tall and weighed two hundred pounds. He testified that when he was asked by the defendant how old he was, Javert replied untruthfully that he was twenty-two. In fact, he testified, he is but 19, and produced a birth certificate which he displayed in court. In this type of prosecution the "born on date" of the purchaser is more important than the born on date of the beer. While what he responded to Materia was a prevarication, the falsehood certainly appeared to be true. His attempt to mislead Materia has led me to question the veracity of his answers to any questions, given this propensity to deceive.

The prosecutrix, Asst. District Attorney Anna Metronick, convincingly argued that how old the purchaser appears to be is not a defense to charge of sale of an alcoholic beverage to a minor, People v. Werner, 174 NY 2d 132 (1903), because this is a malum prohibitum offense. Perry Materia replied that such a categorization meant that the offense was not malum in se, hence the sale was only illegal because the United States government, with the enactment of the National Minimum Drinking Age Act in 1984, had chosen to ride roughshod over the superior judgment of the People of New York that there was nothing wrong (and perhaps something salutatory) in the sale of beer to a nineteen year old.

Indeed, when the Werner case was decided the drinking age was eighteen, the people of New York having chosen to believe that the soldiers it would send off to defend the rights and liberties of our nation in the following decade should be able to relax with a beer if they so chose. ("Old enough to fight, old enough to drink" was a rallying cry against the intrusion of a paternalistic federal government.) Materia offered to brief the issue of whether the 1984 Federal law, imposed by coercion upon a recalcitrant New York legislature (a body infamously unwilling to act on much of anything), was a violation of the Ninth and Tenth Amendments to the Constitution. Happily, the outcome of this decision will obviate that need.

The undercover stool pigeon testified that on July 1 Materia sold him a case of a beverage that was labeled "beer" somewhere on the cardboard exterior, but which had unaccountably vanished from the evidence locker at the Margueritaville police station shortly after the police department's annual 4th of July picnic. However, the witness did produce for the court a register receipt with the words "Carton-- R. Beer" on it, and identified the defendant as the person who sold it to him. Javert returned to the store immediately with uniformed police who arrested the would be lawyer. Mr. Materia protested that his opportunity to be admitted to the bar might be at jeopardized. "Javert: It's a pity the law doesn't allow me to be merciful."

Materia's attack started with the first question to the witness, which was "State your name for the record." Materia's objection was that it was hearsay. The witness had to concede that he believed he was named Marshall Javert because his parents told him that it was the name they had given him . This is, of course, classical hearsay as the defendant (who recently was awarded a grade of "A" in his evidence class) properly observed.

The prosecution went down hill like a runaway beer truck from there. Materia noted that Javert was himself an accomplice to the alleged crime. Because Javert was an accomplice, his testimony needed to be corroborated. This observation is correct, as the Criminal Procedure Law states:

 § 60.22  Rules of evidence; corroboration of accomplice testimony.
1.  A defendant may not be convicted of any offense upon the testimony
of  an  accomplice  unsupported  by  corroborative  evidence  tending to
connect the defendant with the commission of such offense.
2.   An "accomplice"  means  a  witness  in  a  criminal  action  who,
according  to  evidence  adduced  in  such  action,  may  reasonably  be
considered to have participated in:
(a)  The offense charged; and
3.  A witness who is an accomplice as defined in subdivision two is no
less such because a prosecution or conviction of himself would be barred
or  precluded by some defense or exemption,

Therefore, the fact that Javert was an undercover agent hired for the purpose of creating a violation of the law where none existed previously imposes on the prosecution the burden of corroborating his testimony. While each and every element need not be corroborated, and, indeed, the fact that Materia committed a crime need not be corroborated; the law requires that minimally there be corroboration that a crime did occur. Since it is no crime to sell beer to someone over twenty-one years old, the age of the purchaser is a crucial element to establishing a violation of law.

Here there is no proof that Javert was, in fact, under twenty-one. It is not an element of which the court could take judicial notice--indeed, I have judiciously noticed that Javert looks like he is over twenty-one. When the issue was raised ADA Metronick, to her credit, produced a certified birth certificate properly attested to, with a raised seal engrossed upon it. While it does prove beyond a reasonable doubt that there is a Marshall Javert born only nineteen years prior to the date of the sale of the items in question, Mr. Materia pointed out that the fact that the witness was the Javert to whom the certificate referred was proven solely by his own hearsay evidence, citing as persuasive authority the made for television movie "Switched at Birth."

Ms. Matronick pointed out that such a ruling would be unprecedented, and rightly so. However, Mr. Materia perceptively replied that when an argument is raised for the first time it is always unprecedented until a judge issues a ruling.

More damning, however, was the failure to prove beyond a reasonable doubt that the item in question was an alcoholic beverage. The witness Javert described the item in question as having the word "beer" emblazoned on the cardboard carton he brought to the counter and on the metal containers in which the liquid in question was contained. Materia elicited on cross examination that he never opened the carton himself when Javert brought it to the counter, and only cursorily scanned the bar code on the carton, briefly glancing up from the Richardson on Evidence text he was studying.

The courts' exhaustive reaseach at The Beer Site reveals that there are several hundred beers with names that begin with the letter "R," ranging from Raccoon Lodge Badger Blond Bock to Royal, with brands like Ramapo Valley Passover Honey Beer and Rolling Rock in between.

However, Perry Materia produced several cans which Javert had to concede were also located in the deli that said "Root Beer" on them, and which did not list any alcoholic substance in the ingredients label on the containers. Neither was" beer" or "alcohol" mentioned as an ingredient on a bag of snack food labeled "Beer Pretzels" introduced as Defendant's Exhibit B, nor was there any "ale" in the ginger ale the deli sold.

The receipt created by Materia on July 1 listed " carton R. beer" as an item purchased, the prosecutrix pointed out. On cross examination of Javert, Materia proved that he scanned the bar code on the carton with a laser, and the receipt was automatically produced as a result. The words on the receipt were not written by Materia, and were not an admission against penal interest, nor was he given Miranda warnings by Javert before the latter demanded a receipt.

Moreover, upon cross examination, the "minor" Javert (after having been given his Miranda warnings at the insistence of Mr. Materia) denied that he had actually sampled the beverage he bought. The word "beer" on the receipt was, therefore, also a classic illustration of a hearsay declaration by an unknown and unidentified party who had programmed the cash register to produce the receipt. Neither the reliability of the computer code that resulted in the receipt nor the person who wrote the program to create it was proven.

While the carton manufacturer (who may or may not have been the beverage manufacturer) may have designated the item as "beer," Mr. Javert did not know of his own knowledge that the item, in fact, contained the requisite volume of alcohol to bring it within the Penal Law prohibitions. The items in question disappeared from the evidence locker before gas chromatograph mass spectrometer tests could be run on the contents, which, in turn, would have required a confrontation with the toxicologist who produced it (Melendez-Diaz v. Massachusetts (07-591)__US ___(June 26, 2009) for any report so generated to be admissible.

Had but one can in this "case of the missing case" remained, the court could have taken sample quaffs of the beverage in order to assure itself that a conviction would not result in an injustice; but, alas, the Margueritaville police did not have the foresight to preserve a can for the court. This is an omission that they are urged to rectify in future prosecutions of this nature, and it shall become "the law of the case."

All charges are dismissed.