PEOPLE v. NUNEZ (2010)

The defendant, Columbia Nunez, has been charged with a violation of § 64-b(1) of the Alcoholic Beverage Control Law in connection with her alleged sale of an alcoholic beverage inside unlicensed premises. The defendant has moved to dismiss the underlying accusatory instrument on grounds of facial insufficiency, pursuant to CPL §§ 100.40 and 170.30. In order to establish a prima facie violation of ABC § 64-b the following non-hearsay elements must be established: (1) that the defendant had a proprietary or pecuniary interest in the subject premise; (2) that the subject premises had an assemblage capacity of at least twenty person; and (3) that the subject premises were, in fact, unlicenced. After review of the moving papers, applicable statutes and relevant case law, this Court finds that the purported information fails to sufficiently establish two of these three essential elements. Accordingly, the defendant's motion to dismiss is granted. This Court's analysis is as follows.

The defendant was arrested on October 2, 2009 after she allegedly sold a Corona beer to an undercover officer inside unlicensed premises located at 231 East 116th Street in Manhattan in exchange for $3. The complaint is devoid of any description of the subject premises other than its address. There is no allegation that the establishment was being operated as a bottle club or even that the premises were open to the public. The complaint makes no reference to the presence of any individuals other than the undercover officer and the defendant. Additionally, the defendant's association with the premises is not set forth. The factual allegations merely state that the defendant served a beer to the officer. Accordingly, it is not alleged that the defendant had any proprietary interest, business affiliation or managerial capacity in the establishment. The complaint simply states that the “defendant could not produce a valid New York State Liquor Authority license when asked to do so by the undercover officer.”¹

CPL § 100.40(1) provides that an information is facially sufficient when it (1) adheres to the form and content requirements detailed in CPL § 100.15; (2) contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged; and (3) contains non-hearsay allegations which if true, establish every element of the offense charged and the defendant's commission thereof. (See CPL 100.40[1](a-c)). CPL § 70.10[1] sets forth that “legally sufficient evidence” means competent evidence which, if accepted as true establish every element of an offense charged and the defendant's commission thereof. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged. “Reasonable cause to believe that a person has committed an offense” exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight or persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. (See CPL § 70.20(2); People v. Dumas, 68 N.Y.2d 729 (1986). When these requirements are met, this is also referred to as a prima facie case.; see People v. Alejandro, 70 N.Y.2d 133 (1987). However, a prima facie case is not to be confused with proof beyond a reasonable doubt, as required at trial. People v. Kalin, 12 NY3d 225 (2009); People v. Henderson, 92 N.Y.2d 677 (1999). “So long as the factual allegations of an information give an accused notice 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. Casey, 95 N.Y.2d 354 (2000).

ABC § 64 b(1) in pertinent part states “It shall be unlawful for any person, partnership or corporation operating a place for profit or pecuniary gain, with a capacity for the assemblage of twenty or more persons to permit a person or persons to come to the place of assembly for the purpose of consuming alcoholic beverages on said premises which alcoholic beverages are either provided by the operator of the place of assembly, his agents, servants or employees, or are brought onto said premises by the person or persons assembling at such place unless an appropriate license had been obtained from the state liquor authority by the operator if said place of assembly ․ Nothing contained herein shall prohibit or restrict the leasing or use of such place of assemblage as defined herein by an organization or club enumerated in subdivision seven hereof ”² . ABC § 64-b specifically applies to persons or entities with a pecuniary or proprietary interest in the premises. While the statute makes reference to alcoholic beverages which are provided by the agents, servants, and employees, of unlicenced establishments, only those individuals or entities operating a place for profit or pecuniary gain, can be in violation of ABC § 64-b. “Where the words of a statute are clear and unambiguous, they should be literally construed”. See McKinney's Cons Laws of NY, Book 1, Statutes, §§ 76, 94; People v. Munoz, 207 A.D.2d 418 (2nd Dep't, 1994). We conclude that establishing a defendant's proprietary or pecuniary interest in the subject premises is an essential element of a violation of this statute.

In this case, the complaint provides no information as to the defendant's association with the premises. It simply states that she served an alcoholic beverage to an undercover officer in exchange for cash. These allegations, at best, describe the conduct of an employee and do not suffice to establish an ownership interest in the premises.

“Assemblage capacity” is the second element of ABC § 64-b and must be plead in order to satisfy the requirements of facial sufficiency. In order to fall within the ambit of the statute the unlicensed premises must have an assemblage capacity of at least twenty persons. As previously noted, the instant complaint contains no description of the premises, other than its address. Moreover, the complaint does not allege the presence of any persons other than the defendant and the undercover police officer. The Court notes that sufficiently pleading of the assemblage capacity element of the statute does not require alleging the actual presence of twenty or more individuals. Moreover, “assemblage capacity ” may be established circumstantially by factual allegations describing the approximate physical dimensions of the premises. In this case, however, there is a complete absence of any allegations from which the capacity of the subject premises could be inferred or presumed.

The last essential element of § ABC 64(b)(1) is that the subject premises must in fact, be unlicensed by the State Liquor Authority. In this case, the complaint sets forth that the defendant could not produce a liquor licence when requested to do so. ABC § 114 governs liquor licences license both in terms of their content and the manner in which they must be displayed. ABC § 114(6), in pertinent part, sets forth that all licences issued pursuant to The Alcoholic and Beverage Act “shall be posted up and at all times displayed in a conspicuous place in the room where such business is carried on”. While the complaint in this case makes no specific reference to the lack of the presence of a license, it does state that the defendant was unable to produce a licence when aked to do so. By inference, this Court finds that the defendant's failure to produce the licence sufficiently establishes, at least circumstantially, that the premises were in fact unlicensed. The level of proof required to establish a prima facie case, is lesser than that required for conviction after trial. Accordingly, we find that the complaint sufficiently establishes the unlicensed element. This finding, of course, does not negate the additional requirements that the defendant have a pecuniary interest in the premises, or that the premises have an assemblage capacity of at least twenty persons.

In summary, the following elements must be established by non-hearsay allegations in order to establish a prima facie case of a violation of § 64 b-1 of the ABC: (1) the defendant had a pecuniary or proprietary interest in the establishment; (2) that the unlicensed premises had a capacity for the assemblage of a minimum of twenty persons; and (3) that the premises were in fact, unlicenced. In this case, the purported information fails to establish two of these three elements. Accordingly, the defendant's motion to dismiss pursuant to CPL §§ 100.40 and 170.30 is granted.

This shall constitute the final order and decision of this court.

FOOTNOTES

1.  In 1934, New York State enacted Chapter 478 as the Alcoholic Beverage Control Act, creating the State Liquor Authority. The responsibilities of the State Liquor Authority include properly issuing licenses and permits for the manufacture, wholesale distribution and retail sale of all alcoholic beverages and ensuring that those licensed comply with the ABC.

2.  In pertinent part, ABC § 64-b (7) states “This section shall not apply to any non-profit religious, charitable, or fraternal organization, nor to a club as defined in section three, subdivision nine of this chapter, nor to a duly recognized political club ․”

TAMIKO AMAKER, J.