
    The People of the State of New York, Appellant, v James Byrne, Respondent.
    Supreme Court, Appellate Term, First Department,
    March 21, 1985
    APPEARANCES OF COUNSEL
    
      Mario Merola, District Attorney {Peter D. Coddington and Stuart L. Sanders of counsel), for appellant. Ecker, Loehr & Ecker {Louis A. Ecker of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Order dated December 29,1983 modified by reversing, on the law, so much thereof as granted defendant’s motion to dismiss the complaint, the complaint is reinstated, and the matter remanded to the Criminal Court for further proceedings; as modified, order affirmed.

The criminal complaint, as amended, alleged that one Thomas Byrne sold or caused or permitted to be sold alcoholic beverages to persons under the age of 19 years at a Bronx tavern in violation of Alcoholic Beverage Control Law § 65 (1). The complaint further alleged that defendant herein, James Byrne (brother of Thomas Byrne), was also in violation of that statute in his capacity as president and 50% stockholder of the corporate licensee which operated the tavern. Criminal Court dismissed the accusatory instrument against James Byrne, concluding that it was legally insufficient due to the absence of factual allegations that James Byrne was present in the tavern at the time the alcoholic beverages were served or that he had notice of or participated in such conduct.

Alcoholic Beverage Control Law § 65 (1), which defines “prohibited sales”, provides that:

“No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to

“1. Any person, actually or apparently under the age of nineteen years”.

The purpose of the statute is to protect minors from their own immaturity, lack of experience and judgment (Matter of Erin Wine & Liq. Store v O’Connell, 283 App Div 443, affd 307 NY 768). The service or sale of alcoholic beverages to minors is malum prohibitum and is not excused by ignorance or a mistake of facts (People v Werner, 174 NY 132). In dismissing the complaint, the lower court relied upon People v Griesebacker (6 AD2d 679, 680), where it was held that the statute was “designed to embrace conduct where parties participate directly or indirectly in actual immediate service to a minor”. However, subsequent decisions cast doubt upon the vitality of that precedent. In People v Leonard (8 NY2d 60), drinks were prepared by the defendant restaurant owner in the bar area and relayed to a waitress, who served them to minors in the dining room. The Court of Appeals (supra, p 62) reversed the dismissal of the information, stating, “[S]ince intent is not a necessary ingredient of this crime, [defendant] is responsible for the act of his employees”. In another case, closely akin to the one before us, one of the licensees was working on the premises as a checker when the sale of an alcoholic beverage to a minor was made. However, no competent evidence existed that the other licensee observed the sale or physically participated in the sale. The court, nonetheless, reinstated an indictment against both licensees, holding that the licensees were under a nondelegable duty and liable criminally for their employees’ violation of the statute; the Griesebacker case was expressly not followed as inconsistent with the later decision of the Court of Appeals in People v Leonard (People v Danchak, 24 AD2d 685).

The defendant, if adjudged a responsible officer of the corporate licensee, may be held criminally liable notwithstanding his lack of knowledge of, or participation in, the criminal act (Hershorn v People, 108 Col 43,113 P2d 680, cited with approval in People v Leonard, supra, p 62; see generally, United States v Park, 421 US 658, 670-673).

The argument (raised for the first time on appeal) that the acquittal of Thomas Byrne now bars the prosecution of defendant James Byrne, lacks merit. A defendant whose own interests were not put directly in issue at the prior trial may not use the doctrine of collateral estoppel as a bar to his own prosecution (People v Berkowitz, 50 NY2d 333, 346-347). It is irrelevant that the People, in the prior prosecution, failed to prove an element that they will have to prove in defendant’s prosecution (People v Oleksowicz, 101 AD2d 119, 125).

Dudley, P. J.

(dissenting). The primary issue on this appeal is whether an officer and stockholder of a corporation licensed to sell alcoholic beverages may be held criminally responsible for a sale to minors made by others connected with the corporation, in his absence and under circumstances where there is no claim that such officer had knowledge of the transaction or contributed to the sale or delivery of the item sold. Contrary to the view of my colleagues, it is my judgment that the defendant cannot be held derivatively liable for the acts of agents or co-owners of the corporate seller without some affirmative claim that he procured or permitted the sale.

The complaint and supporting depositions allege only that defendant’s brother, Thomas Byrne, sold beer to two minors on the date in question; there is no claim that this defendant was present at the time or engaged in any type of overt or tacit conduct which contributed to this particular sale or sales to other minors. Criminal liability is sought to be imposed upon defendant solely on the basis that he is a responsible officer and shareholder of the corporate licensee which owns the tavern. As I construe the Alcoholic Beverage Control Law § 65 (1), the statutory plan is to impose liability upon the parties making the sale, the parties permitting the sale to occur and the parties procuring the sale. The defendant did not make the alleged sale. If a sale was made it was the corporate owner who made that sale through transactions conducted by persons other than the defendant. Even assuming that the corporation could be held criminally responsible for the acts of its employees and/or officers, the defendant should not be held accountable solely because he is an officer and stockholder of the corporation. In the cases cited by the majority, the owner of the licensed premises was an individual and the person who made the sale was the employee of the individual owner. No case has been cited to us in this jurisdiction where a stockholder or an officer of a corporation was held criminally responsible under this statute for the act of a fellow servant or shareholder. The statute should not be expansively interpreted to impose criminal sanctions upon officers or shareholders in the absence of express language to that effect, particularly here where liability is sought to be imposed derivatively for the acts of others and without any allegation of knowledge or intent on the part of the defendant.

While this appeal was pending, defendant’s brother, the only party alleged to have actually made the prohibited sale, was acquitted after a jury trial. In the posture of this case, defendant’s guilt may only be established if his brother’s commission of the criminal acts alleged is proven. It would be an incongruous result if defendant were found guilty because the People, in a separate trial, proved the very acts of which defendant’s brother now stands acquitted. There is no valid reason for this prosecution to go forward. Accordingly, the order of the Criminal Court granting defendant’s motion to dismiss the complaint should be affirmed.

Riccobono and Sandifer, JJ., concur; Dudley, P. J., dissents in a separate memorandum.  