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State v. Conner

February 22, 1977

STATE OF NEW JERSEY, PLAINTIFF,
v.
JACK CONNER, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, V. RONALD TOCCO, DEFENDANT



Carchman, J.m.c.

Carchman

These matters involve violations of N.J.S.A. 33:1-77, alleging the sale of alcoholic beverages to a minor. Both cases, while presenting separate factual circumstances, involve a common issue of law: whether the presentation of a false photographic identification card by a minor is a "representation in writing" under N.J.S.A. 33:1-77(a).

On September 24, 1976 defendant Conner was employed by, and a salesman in, Cousins Liquor Store in the Borough of Princeton. During the course of that evening Sgt. Procaccino of the Princeton Borough police force, arrested two minors, both of whom possessed alcoholic beverages. Sgt. Procaccino later had a conversation with defendant, who admitted selling the beer to the minors in question and who indicated that identification had been produced establishing their age as 18 years. The two minors M and W, were in possession of five cans of beer: M had three and W, two. A search of M revealed possession of an identification card, which indicated his name and address and set forth his date of birth as March 26, 1958. A photograph was affixed to the card, and the card was signed by M. While the minors denied displaying identification, legitimate inferences can be drawn from the facts presented that an identification card was shown to defendant Conner. It was admitted by M that the card was false and that both he and W were, in fact 17 years of age at the time of the

purchase. Both minors testified and appeared to be persons who could easily pass for 18. At no time did defendant request any written statement in the minor's handwriting certifying that the minor was in fact of age.

Defendant Tocco was, on December 3, 1976, a bartender in the Pink Elephant Bar in Princeton Borough. At that time Det. Timothy Huizing of the Princeton Borough Police Department observed an individual, known to be a minor, sitting at the bar drinking what appeared to be an alcoholic beverage. The detective entered the bar and ascertained that the minor was in fact consuming an alcoholic beverage and that the drink had been served to her by defendant Tocco. Defendant testified that on a prior occasion the minor had produced to defendant's brother, another bartender, an identification card indicating her date of birth as July 5, 1958, and that the minor had been sufficiently "carded" to establish her age as being over 18. John Tocco, defendant's brother, testified that in addition to the identification card which he observed, he had seen a driver's license, which, to the best of his recollection, stated the minor's age as 18. Defendant indicated that, based on a driver's license, he had refused a drink to the juvenile inasmuch as he felt that the driver's license was not sufficient. At no time was the juvenile requested to, nor did she, write out a statement stating that she was in fact over 18. It was readily apparent that, based upon her appearance, the minor could reasonably be believed to be over the age of 18.

The general policy of the alcoholic beverage laws is to promote temperance and highly regulate the sale of alcoholic beverages. Affiliated Distillers Brands Corp. v. Sills , 56 N.J. 251 (1970); Canada Dry Ginger Ale Inc. v. F. & A. Distributing Co. , 28 N.J. 444 (1958). See also, Fanwood v. Rocco , 59 N.J. Super. 306 (App. Div. 1960), aff'd 33 N.J. 404 (1960). To effectuate this policy, the Legislature has enacted N.J.S.A. 33:1-77, which prohibits the sale of

alcoholic beverages to minors. The statute however, does provide the basis for a defense to this charge, especifically, that defendant show all of the following facts:

(a) That the minor falsely represented in writing that he or she was 21 years of age or over;*fn1

(b) That the appearance of the minor was such that an ordinary prudent person would believe him or her to be 21 years of age or over, and

(c) That the sale was made in good faith, relying upon such written representation and appearance and in reasonable belief that the minor was actually 21 years of age or over. [Emphasis supplied]

The present cases establish elements (b) and (c) as each of the minors involved appeared to be over the age of 18, and each defendant sold in good faith, relying on the presentation of the bogus identification card and the appearance of the minor, and, further, in reasonable belief that the minor was actually 18 years of age or over. The issue then narrows as to whether the presentation of a bogus identification card in ...


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