People v. Rivera (Jesus)

The People of the State of New York, Respondent, against Jesus Rivera, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo, J.H.O.), rendered September 4, 2012, after a nonjury trial, convicting him of public consumption of alcohol, and imposing sentence. Per Curiam. Judgment of conviction (John Cataldo, J.H.O.), rendered September 4, 2012, affirmed. The accusatory instrument charging defendant with public consumption of alcohol (see Administrative Code of City of NY § 10-125[b]) was not jurisdictionally defective. Defendant's intent to consume alcohol in public can be readily inferred from the sworn police allegations that defendant was observed "with an open container of Hennessy on a public sidewalk" (see Administrative Code § 10-125[c]). The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court's determinations concerning credibility. Based upon the credited police testimony that defendant was holding a cup of Hennessy in public with a half consumed bottle of Hennessy nearby, the court could rationally infer that defendant possessed an open container with the requisite "intent to drink or consume" the alcoholic beverage contained within it (see People v Matthews, 48 Misc 3d 1 [App Term, 1st Dept 2015], lv denied 27 NY3d 1002 [2016]; see also People v Basono, 122 AD3d 553 [2014], lv denied 25 NY3d 1069 [2015]). Defendant failed to preserve his present contention that the trial court acted as a prosecutor and deprived him of his constitutional right to a fair trial (see People v Kello, 96 NY2d 740 [2001]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v DeLeyden, 10 NY2d 293 [1961]; People v Hightower, 29 Misc 3d 131[A], 2010 NY Slip Op 51882[U] [App Term, 1st Dept 2010], lv denied 16 NY3d 831 [2011]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: November 22, 2016