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People v. Salgado

Criminal Court of the City of New York, Queens County

January 12, 2018

The People of the State of New York
v.
Raymond Salgado, Defendant.

          Eric Weinstein, Assistant District Attorney, for the People

          Michael Papson, Queens Law Associates, for the Defendant

          Karen Gopee, J.

         Summary of the Court's Decision

         The 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 Instrument

         In 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 N.Y.2d 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.

         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.

         Facial Sufficiency Analysis

         "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution." People v. Smalls, 26 N.Y.3d 1064, 1066 (2016) (quoting People v. Dreyden, 15 N.Y.3d 100, 103 (2010)); see also C.P.L. §§ 170.30; 170.35. Such a facially sufficient and valid misdemeanor information must contain non-hearsay, 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 C.P.L. §§ 70.10; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro, 70 N.Y.2d 133 (1987); People v. Dumas, 68 N.Y.2d 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 ...


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