People v. Fenner (Lois)

The People of the State of New York, Respondent, against Lois Fenner, 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 December 18, 2013, after a nonjury trial, convicting her of public consumption of alcohol, and imposing sentence. Per Curiam. Judgment of conviction (John Cataldo, J.H.O.), rendered December 18, 2013, 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 had an "open container of alcohol in public," a "750 ML clear glass bottle of Bacardi Rum (clear liquid) that was previously opened/consumed and inside of a black plastic bag," and that defendant "stated that is mine, I bought it earlier from a liquor store'" (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 testimony that defendant had a partially consumed bottle of rum, while talking loudly to a friend who was drinking from an open can of beer, and that defendant distanced herself from the bottle as the police officer approached, 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 Rivera, 53 Misc 3d 150[A], 2016 NY Slip Op 51671[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1188 [2017]; see also People v Basono, 122 AD3d 553 [2014], lv denied 25 NY3d 1069 [2015]). Defendant's challenge to the electronic recording of the proceeding below is unpreserved and no prejudice is apparent from the record (see People v Wanass, 55 Misc 3d 97 [2017], lv denied 29 NY3d 1088 [2017]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: November 29, 2017