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People v. Albra

September 5, 2006


Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 22, 2006

{**13 Misc 3d at 65} OPINION OF THE COURT


Judgment of conviction affirmed.

Defendant contends that the information was defective because of an allegedly defective supporting deposition. However, defendant refers to the original information that was superseded by a second information (CPL 100.50 [1]) which specifically stated that it was based on the personal knowledge of the complainant Sergeant Hurley. Said superseding information was jurisdictionally sufficient to charge defendant with disorderly conduct (Penal Law § 240.20 [4]) and trespass (Penal Law § 140.05).

At a Town Board meeting, defendant, as well as the other members of the public present, were informed that they would be allowed to speak regarding designated topics on the agenda. However, defendant incessantly raised nonagenda items thereby intentionally inconveniencing and annoying those in attendance at the Town Board meeting, a "lawful assembly or meeting of persons" (Penal Law § 240.20 [4]). Despite the Town Supervisor's warnings that he would be asked to leave if he did not address the topics at hand, defendant persisted in asking questions and making comments as to matters not on the agenda, ultimately antagonizing the Town Board and provoking them to engage in heated discussions, thereby disrupting the meeting. Viewing the evidence in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find it was legally sufficient to establish defendant's guilt of disorderly conduct beyond a reasonable doubt (see People v Malone, 156 App Div 10 [1913]).

As a result of defendant's disruptive behavior at the Town Board meeting, he was ultimately asked to leave by persons with authority, the Town Supervisor and Sergeant Hurley. Defendant{**13 Misc 3d at 66} refused to leave and continued to remain unlawfully at the public meeting, despite the fact that his license and privilege to be present thereat had been revoked (see Penal Law § 140.05; People v Leonard, 62 NY2d 404, 408 [1984]). Thus, the evidence adduced at trial was legally sufficient to establish defendant's guilt of trespass beyond a reasonable doubt (see People v Leonard, 62 NY2d 404 [1984], supra; People v Taylor, 164 Misc 2d 868 [App Term, 9th & 10th Jud Dists 1995]).

We note that the government has a significant interest in controlling the agenda and preventing the disruption of public meetings of governmental bodies (see Jones v Heyman, 888 F2d 1328 [11th Cir 1989]; see also Madison Joint School Dist. No. 8 v Wisconsin Employment Relations Comm'n, 429 US 167, 175 n 8 [1976] [governmental bodies "may confine their meetings to specified subject matter"]). Although the Court in People v Dupont (107 AD2d 247, 255-256 [1985]) stated that "[t]he fact that certain modes of expression may be 'annoying' to others does not require an individual to forfeit his rights under the 1st Amendment to make those expressions . . . ," it has been held that "a City Council meeting is . . . a governmental process with a governmental purpose . . . Public forum or not, the usual [F]irst [A]mendment antipathy to content-orientated control of speech cannot be imported into the Council chambers intact . . . in dealing with agenda items, the Council does not violate the [F]irst [A]mendment when it restricts public speakers to the subject at hand . . . While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing . . . it certainly may stop him if his speech becomes irrelevant or repetitious" (White v City of Norwalk, 900 F2d 1421, 1425 [9th Cir 1990]).

In the case at bar, defendant's questions were irrelevant to the purpose of the meeting and inappropriate for the time and place, as the public was only privileged to discuss topics set forth on the agenda. We are of the opinion that the Town Board's actions were narrowly tailored to a significant interest, to wit, addressing matters on the agenda in an orderly and efficient manner. Furthermore, rather than restrict defendant's speech completely, the Town Board merely directed him to discuss agenda-related matters.

In view of the foregoing, the judgment of conviction is affirmed.{**13 Misc 3d at 67}

Tanenbaum, J. (dissenting and voting to reverse the judgment of conviction and dismiss the accusatory instrument). At the Town of Fishkill Town Board meeting, which was open to the public, defendant Albra was recognized to speak. At the very beginning of defendant's question, Town Supervisor Pagones stated, "no, the lies are not going to continue," and later stated, "the Pagones family, of all families, are used to dealing with big time liars. [You] are in the little bit into the small time lying routine. I will tell you this." Thereafter, defendant's questions precipitated a tongue lashing by Supervisor Pagones and hostile comments by Councilman Zack, who asserted that defendant made false statements at a prior meeting. He was directed to leave the meeting but refused citing his "[F]irst [A]mendment rights." The supervisor then directed his removal. He again declined stating, "I am going to have to be arrested then." He was arrested and charged with disorderly conduct in violation of Penal Law § 240.20 (4) and trespass in violation of Penal Law § 140.05.

This is a transcript of the minutes of the meeting: "Motion made by Councilman Zack to go into privilege of the floor for agenda items. "Seconded by Councilman Ferguson "All Ayes "Motion carried "Azem Albra asked about the aquifer, it appears that the Toll Brothers is building houses right on top of the aquifer, can you confirm or deny that? "Supervisor Pagones asked if Town Engineer, John Andrews wanted to handle this on truth here? "Azem Albra stated that is what he is asking. "Supervisor Pagones stated no, the lies are not going to continue. John, do you want to address this for the public? "Town Engineer, John Andrews, answered, point in fact Toll Brothers was and originally reviewed way back when it was Merritt Park Realty Development, the extent of that aquifer was well studied, the design of that project has incorporated all the necessary features into it, and was actually a significant study which exists in the environmental documents, and what we see today is consistent with the recommendations that were made for that development in that area.{**13 Misc 3d at 68} "The extent of the aquifer in that area is slightly different than other areas, it is relatively shallow, there are a few other issues related to it, they all have been incorporated into the design of the project as we see it today. Nothing that is being done is inconsistent with the protection that needs to be in place for that. "Supervisor Pagones asked if there were any other questions. "Azem Albra stated that his question is, is it being built on top of the aquifer, yes or no? It is a simple question. "Town Attorney, Ronald Blass, advised the Supervisor that she did not have to answer that question. "Supervisor Pagones replied to Mr. Albra by saying, the Pagones family, of all families, are used to dealing with big time liars. [You] are in the little bit into the small time lying routine. I will tell you this, "Azem Albra: you are slandering a public officer. "Supervisor Pagones: No, you are lying.

"Azem Albra: You are calling me a liar, you cannot call me a liar without evidence. Where is your evidence? You have no evidence.

"Councilman Zack: The July 7th meeting, you made a false misleading statement. You have no evidence to back it up.

"Supervisor Pagones: That is correct, that is a lie. You have lied repeatedly to this board. It will not be continued, we will go head to head with you.

"Azem Albra: Lied to court?

"Councilman Zack: She said Board, not court.

"Supervisor Pagones: Yes, this Board. We are not going to consider your comments. One more out-burst, and Officer Hurley will have you out of here. What other questions do you have? "Azem Albra: On the map, the guy over here of the Waterfront with the water access, I noticed there were 92 homes, 92 slips for the people that live there, I don't see any storage areas for those boats, I don't know if you are aware of that or not, where are they going to put those boats, in the driveways or are they going to ...

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