Drinking & Dashing in New York City: Failure to Pay Bar Tab Not a Theft of Services Crime (NY PL 165.15)?

On a daily basis, tourists and everyday denizens of New York City are either arrested or given Desk Appearance Tickets for violating New York Penal Law 165.15, Theft of Services. An “A” misdemeanor punishable by up to one year in jail, Theft of Services arrests and Desk Appearance Tickets routinely involve a passenger in a cab or a diner at a restaurant who fails to pay his or her tab or bill. While any arrest is concerning, and often requires the assistance of a criminal attorney to navigate the process, what exacerbates a Theft of Service arrest is that it can have a significant impact on professional licenses, certifications and immigration.

Putting aside the potential consequences of a Theft of Services arrest in New York City, there is a small (very small) body of cases that question whether or not it is a violation of New York Penal Law 165.15(2) if you drink at a bar and fail to pay your bill. In pertinent part, subsection two of NY PL 165.15 states that you are guilty of a crime if you intend to avoid payment for restaurant services and actually do not pay for those services. Well, according to People v Sei Young Choi, 170 Misc.2d 598 (Queens Cty Crim. Ct 1996), this may not always be the case in the alcohol and pub/tavern context.

In Choi, a defendant consumed over $200 worth of alcoholic beverages at a New York City bar and refused to pay for those beverages. In fact, the complaint stated that the defendant did not have permission or authority to drink the spirits without paying for them. In dismissing the case as facially insufficient, the court did not rule on the factual issues of whether or not the defendant did drink or did not pay. Instead, the court recognized that nothing in the complaint (information) established that the bar was a restaurant or that that the consumption of alcohol was a restaurant service. In other word, the court took a strict reading of the statute and determined that “[i]t appear[ed] from the defendant’s arguments and a reading of the statute that the alcoholic beverages are not restaurant services in that a bar is not necessarily a restaurant.” See also People v Klas, 79 Misc 452 (Onondaga Cty Ct 1913). (“[t]he [old] statute, which it is claimed the defendant violated, only protects a hotel keeper for lodging, food and accommodations furnished, and in so far as the bar bill is for liquors no recovery can be had therefore.”)

Despite the decision from 1913 that addressed the predecessor to the Theft of Service Statute as well as the Choi case, the reading of these decisions from the perspective of an experienced New York criminal lawyer reveals something different. That is, Choi does not say that alcohol and bars are never covered under New York Penal Law 165.15(2) provisions addressing restaurant services. Instead, Choi makes it clear the prosecution must establish in an information or complaint that the bar is part of (or is) a restaurant and the serving of alcohol is one of those services. To that end, a review of People v. McDonald, 179 Misc.2d 479 (New York Cty Crim. Ct. 1999) exemplifies the type and degree of corroboration necessary. There a sufficient nexus was established linking a hotel bar and services of alcohol with a restaurant and associated restaurant services.

Whether the issues and cases briefly mentioned above, ie, whether or not a complaint against you establishes more than a “drink and dash” from a bar, is something that you and your own counsel should discuss and analyze.

Extensive information on New York Theft of Services (as well as collateral consequences), Desk Appearance Tickets and other crimes can be found through the highlighted links above. Additional resources beyond the Crotty Saland PC website include the New York Criminal Lawyer Blog (analysis of legal decisions, statues and cases in the news) as well as NYDeskAppearanceTicket.Com.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent those accused of crimes throughout New York City and beyond.

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