The corporate defendant is charged with one count of Disorderly Premises, pursuant to Alcoholic Beverage Control Law §106 (6) stemming from a physical altercation that allegedly occurred at 37 South 5th Avenue in the City of Mount Vernon, County of Westchester on April 15, 2018, at about 0100 hours.The defendant now moves for an order dismissing the accusatory instrument as facially insufficient. While the defendant seeks a dismissal pursuant to the Civil Practice Law and Rules, the Court will determine whether the charge is facially insufficient pursuant to Criminal Procedure Law §§170.30, 170.35 and 100.40. The People have failed to respond. After a review of the defendant’s motion and the court file and record, defendant’s motion to dismiss is granted for the following reasons.Fundamental principles of justice and fairness mandate that an accusatory instrument “factually describe the elements of the crime and the particular acts of the defendant constituting its commission” (People v. Casey, 95 NY2d 354, 363 [2000]). Whether it is denominated as a misdemeanor complaint or an information, the instrument must allege facts of an evidentiary character which provide reasonable cause to believe that the defendant committed the crime charged (see People v. Suber, 19 NY3d 247, 251 [2012]). A misdemeanor complaint which violates the reasonable cause requirement by failing to allege sufficient evidentiary facts to [*2]support an element of the crime charged is jurisdictionally defective (see People v. Fernandez, 20 NY3d 44, 47 [2012]; People v. Dreyden, 15 NY3d 100,103 [2010]). Because “a misdemeanor complaint is a misdemeanor information…with hearsay allegations permitted,” a misdemeanor complaint must allege evidentiary facts supporting every element of the offense charged (id. at 50). Thus, a misdemeanor complaint also must comply with the first requirement of the prima facie case standard for an information in order to be jurisdictionally sufficient.The factual allegations in the accusatory instrument made by the deponent, Police Officer Patterson, read as follows:I, PO Patterson responded to Samba Inc. on [sic] 37 S 5th Ave after a physical altercation occurred at approximately 0100 hours between two parties. I spoke to Samba’s Inc.’s owner Chung, Clint (NYS CID 774483065) who acknowledge [sic] the physically [sic] altercation happening.Alcoholic Beverage Control Law §106 (6) reads in pertinent part that “No person licensed to sell alcoholic beverages shall…suffer or permit such premises to become disorderly.” 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]).Well-regarded, general-use dictionaries define “disorderly” as “publicly violent or noisy” or otherwise “offensive to public order,” “peace or decorum.” The common thread of these definitions is that, to be “disorderly,” a person must act in a way that implicates the public sphere.In this case, the allegations in the misdemeanor complaint set forth that the complainant, Mount Vernon Police Officer Patterson responded to the subject location at 37 South 5th Avenue and spoke with the owner of the premises who acknowledged that a physical altercation occurred. Although a physical altercation is alleged to have taken place, there are no factual allegations to establish how the licensee “suffered or permitted” the premises to become disorderly. Moreover, the complaint doesn’t even indicate whether this altercation occurred inside or outside the establishment. The accusatory instrument also fails to allege that the establishment was open at approximately the 1:00 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"].)Nothing within the four corners of the accusatory instrument alleges or implies the existence of advance notice of the potentiality of this physical altercation, or of events that could lead to it, that would have provided the defendant with actual or constructive knowledge mandating its intercession. Accordingly, the “suffer/permit” element of Alcoholic Beverage Control Law §106 (6) is alleged insufficiently (see People v. Raymond Salgado, 58 Misc 3d 820, 821 [Crim. Ct. Queens County, 2018]).Because the “become disorderly” and “suffer/permit” elements of Alcoholic Beverage Control Law §106 (6) are alleged insufficiently, the defendant’s motion to dismiss the sole count of the misdemeanor complaint is granted. The People are granted leave to replead the accusatory instrument in accordance with this decision.This constitutes the Decision and Order of this Court.Dated: June 13, 2018Mount Vernon, New York
