
    The People of the State of New York, Plaintiff, v. Herman Jensen, Defendant.
    District Court of Suffolk County, First District,
    October 6, 1967.
    
      James D. Saver and George C. Calabrese for defendant. George Aspland, District Attorney, for plaintiff.
   Alexander W. Kramer, J.

The defendant is charged with public intoxication in violation of section 240.40 of the Penal Law, effective September 1, 1967. He has demurred to the information, contending it is insufficient as a matter of law.

The information alleges that the defendant£ £ did appear at the Three Village Plaza, lit. 25A, in Setauket, a public place in the Town of Brookhaven, (County of Suffolk, in a state of manifest intoxication in such a condition that he was unable to care for himself and attracting the attention of the public. Actor’s speech was thick and incoherent, his breath smelled of alcohol, his face was flushed, his eyes were glassy. ’ ’

These allegations would have been sufficient under section 1221 of the former Penal Law.

A demurrer concedes the facts alleged in the information, but contends that, conceding the proof of those facts, no violation has been demonstrated.

Section 240.40 of the new Penal Law adds other factors to the ingredients of the offense in addition to intoxication in a public place, viz.:

1. The element of the defendant endangering himself; or

2. The element of the defendant endangering other persons or property; or

3. The element of the defendant annoying persons in his vicinity.

The information now before the court sets forth bald intoxication in a public place. Absent the showing of any of the other factors, there can be no violation. Mere intoxication in a public place is now insufficient under the present law.

The allegation that “ he was unable to care for himself ” does not per se mean that he was endangering himself or other persons or property; nor does it mean that — per se — he was annoying others. Conceivably he could have been drunk enough so as not to be able to care for himself; yet in doing so he would not necessarily have endangered himself, others, or property. Nor would he necessarily have annoyed others. The demurrer is sustained.  