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People v. Salgado

'Public' Element of 'Disorderly' Not Sufficiently Alleged in ABC §106(6) Count, Dismissed

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Summary of the Court’s Decision

*1The defendant’s motion to dismiss count 1 of the information — namely Permitting Premises to Become Disorderly (A.B.C. §106(6)) — as facially insufficient is GRANTED. The defendant’s motion to dismiss count 2 of the information — namely Obstructing Governmental Administration in the Second Degree (P.L. §195.05) — as facially insufficient is DENIED.The defendant, Raymond Salgado, is charged with Permitting Premises to Become Disorderly (A.B.C. §106(6)) and Obstructing Governmental Administration in the Second Degree (P.L. §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.The Accusatory InstrumentIn analyzing the facial sufficiency of an information, this Court must presume true its factual allegations. See P.L. §100.40(1)(c) (“[T]he non-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 P.L. §100.40(1)(c)).At about 3:20 a.m. of 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 has 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.1 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.

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