Criminal Court of the City of New York, Queens County, January 12, 2018

Queens Law Associates (Michael Papson of counsel) for defendant.

Richard A. Brown, District Attorney (Eric Weinstein of counsel), for plaintiff.

The defendant, Raymond Salgado, is charged with permitting{**58 Misc 3d at 822} premises to become disorderly (Alcoholic Beverage Control Law § 106 [6]) and obstructing governmental administration in the second degree (Penal Law § 195.05). He now moves this court to dismiss the information on facial insufficiency grounds. The People, by written response, oppose the defendant's motion.

After a review of the defendant's motion and the court file and record, this court makes the following findings.

In analyzing the facial sufficiency of an information, this court must presume true its factual allegations. (See CPL 100.40 [1] [c] [The "(n)on-hearsay allegations of the factual part of the information . . . (must) establish, if true, every element of the offense charged and the defendant's commission thereof" (emphasis added)]; People v Casey, 95 NY2d 354, 360 [2000], quoting CPL 100.40 [1] [c].)

At about 3:20 a.m. on November 5, 2017, Police Officer Travis Tennant responded to a call for an assault in progress in front of Fayrooz Hookah Lounge and Bar at 28-08 Steinway Street, in Queens County. Upon arrival, he spoke to the complainant, Orlando Yardley, who stated that he had been grabbed about the body, dragged to the exit, and repeatedly punched about the face, head and body by an employee of the location who had identified himself as a bouncer.^[FN1] As a result, the complainant suffered bruises and lacerations on his face which were observed by deponent Police Officer Travis Tennant and treated by emergency medical services.

Pursuant to his investigation of the complainant's allegations, Officer Tennant asked the defendant, who self-identified as a manager of Fayrooz, to provide a roster of the security employees. The defendant refused to do so.{**58 Misc 3d at 823}

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Dreyden, 15 NY3d 100, 103 [2010]; see also CPL 170.30, 170.35.) Such a facially sufficient and valid misdemeanor information must contain nonhearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed the charged offenses. (See CPL 70.10, 100.15 [3]; 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986].) Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Ocasio, 28 NY3d 178, 180 [2016], quoting People v Casey, 95 NY2d 354, 360 [2000].)

Count 1: Permitting Premises to Become Disorderly (Alcoholic Beverage Control Law § 106 [6])

"No person licensed to sell alcoholic beverages shall . . . suffer or permit such premises to become disorderly." (Alcoholic Beverage Control Law § 106 [6].) However, the word "disorderly" is not defined in the Alcoholic Beverage Control Law. Thus, "[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase." (Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016] [internal quotation marks omitted].)

Well-regarded, general-use dictionaries define "disorderly" as "publicly violent or noisy" or otherwise "offensive to public order," "peace or decorum."^[FN2] The common thread of these definitions is that, to be "disorderly," a person must act in a way that implicates the public sphere.

[1] In this case, the physical altercation inside of Fayrooz—replete with grabbing, repeated punching and dragging another {**58 Misc 3d at 824}person through the establishment towards the exit—certainly could constitute a publicly violent act offensive to public order, peace and decorum. However, it is not alleged that the establishment was open at the approximately 3:30 a.m. hour, or that others were present in front of the building during the altercation and were able to observe, and be affected by, it. Thus, the necessary "public" requirement of the "become disorderly" element of Alcoholic Beverage Control Law § 106 (6) is alleged insufficiently.

Moreover, if the disorderly events "were unexpected and of such a brief duration that [the defendant] could not have prevented them through reasonable supervision," then the "suffer or permit" element is not alleged sufficiently. (Matter of Moonwalkers Rest. Corp. v New York State Liq. Auth., 250 AD2d 428, 428 [1st Dept 1998]; compare with Matter of Warehouse Entertainment v New York State Liq. Auth., 269 AD2d 278, 279 [1st Dept 2000] [Where "the premises was overcrowded and became the scene of a shooting," the petitioner violated Alcoholic Beverage Control Law § 106 (6) because, "by the time of the incident, the premises had been overcrowded for a sufficient length of time that petitioner( ) . . . should have known of the condition and taken measures to ameliorate it so as to reduce the considerable potential, subsequently realized, for disorder"].)^[FN3]

[2] The instant allegations imply a flashpoint physical altercation that began suddenly and unexpectedly and ended fairly rapidly. Nothing within the four corners of the information alleges or implies the existence of advance notice of the potentiality of this confrontation, or of events that could lead to it, that would have provided the defendant with actual or constructive knowledge mandating his intercession. Accordingly, the "suffer/permit" element of Alcoholic Beverage Control Law § 106 (6) is alleged insufficiently.

Because the "become disorderly" and "suffer/permit" elements of Alcoholic Beverage Control Law § 106 (6) are alleged insufficiently, the defendant's motion to dismiss this count of the information is granted.{**58 Misc 3d at 825}

Count 2: Obstructing Governmental Administration in the Second Degree (Penal Law § 195.05)

[3] A person "obstruct[s] governmental administration when he . . . prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . ." (Penal Law § 195.05.) In this case, the People concede, correctly, that the defendant is not alleged to have used intimidation or [*2]physical force or interference to prevent the deponent police officer from performing what was certainly an official function, namely, investigating the complainant's allegations. (See People's response at 3.) However, the People assert, the defendant impeded the officer's investigation via the independently unlawful act of refusing to turn over a roster of the security employees, despite his obligation to do so pursuant to Alcoholic Beverage Control Law § 106 (15). The People are correct.

The Fayrooz Hookah Lounge and Bar is "subject to inspection by any . . . police officer . . . during the hours when the said premises are open for the transaction of business." (Alcoholic Beverage Control Law § 106 [15].) "Inspection, as the term is generally used, . . . embraces as well the right to inspect books and records." (Matter of Finn's Liq. Shop v State Liq. Auth., 31 AD2d 15, 17-18 [1st Dept 1968], citing Matter of Barski v State Liq. Auth., 285 App Div 996, 996 [4th Dept 1955] ["The inspection of licensed premises authorized by subdivision 15 of section 106 of the Alcoholic Beverage Control Law, includes, in our opinion, all books and records located upon the premises at the time of inspection. . . . (I)t does not rest with the licensee to determine what records and books may or may not be inspected and examined"].)^[FN4] Accordingly, the deponent police officer was authorized to inspect the employee roster, and the defendant's refusal to make it available for inspection, as alleged in the information, does constitute obstruction via an independently unlawful act.

Whether Fayrooz was open for business at the approximately 3:30 a.m.-or-later hour, and whether the employee roster was actually available upon the premises at that time—or, indeed, whether such a roster existed at all—all are issues for a finder of fact to confront at trial. But, the information, read in the light most favorable to the People at this, the pleading stage,{**58 Misc 3d at 826} sufficiently alleges the charge of obstructing governmental administration in the second degree. Accordingly, the defendant's motion to dismiss this count of the information is denied.