May 23, 2013
The PEOPLE of the State of New York
Edward DIAZ, Randolph Credico, Robert T. Parsons, Nicholas Malinowski, Christina Gonzales, John W. Hector, Defendants. No. 2011KN094230.
This decision has been referenced in a table in the New York Supplement.
Charles Hynes, Esq., District Attorney, by A.D.A. James Coughlin, Esq., Brooklyn, for The People.
Seymour James, Esq., The Legal Aid Society, Brooklyn, for the Defendant.
Daniella Korotzer, Esq., of Counsel, for Defendant Edward Diaz.
Genesis Fisher, Esq., of Counsel, for Defendant Randolph Credico.
Julie Fry, Esq., of Counsel, for Defendant Robert Parsons.
Alex Smith, Esq., of Counsel, for Defendant Nicholas Malinowski.
Meghan D. Maurus, Esq., of Counsel, for Defendants Christina Gonzalez and John Hector.
SHAWNDYA L. SIMPSON, J.
The defendants are all charged through an amended complaint with one count each of Disorderly Conduct (Penal Law § 240.20(6)). The defendants have moved this Court for an order dismissing the charges on grounds of facial insufficiency or in the interest of justice pursuant respectively to Criminal Procedure Law (CPL) §§ 170.35, 100 .40, and § 170.40. A response to the motion was filed by the People. An order of dismissal may be issued pursuant to CPL § 170.40(2) where there is a clear compelling factor that requires dismissal in the interest of justice. For the reasons stated below, the instant proceedings are dismissed in the interest of justice pursuant to CPL § 170.40.
The factual part of the accusatory instrument upon which the defendants are arraigned reads as follows:
Deponent states that, at the above time and place, the deponent did observe the defendant and approximately fifty other individuals standing in front of the entrance door of the 73rd precinct blocking the entrance way, and that after the defendant was instructed by the police to disperse and clear said entrance way, defendant and others did refuse to disperse and clear said entrance way, defendant and others did refuse to disperse and did continue to block the entrance way of said precinct thereby preventing any police officer and police personnel from entering and exiting the 73rd precinct.
No additional supporting affidavits are included in these cases.
New York Penal Law § 240.20(6) provides that a person is guilty of disorderly conduct when " with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 6.[h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." It must be established that the defendant, (1) intentionally and/or recklessly, (2) was a part of a congregation, and (3) refused to comply (4) with a lawful order given by the police to disperse. A " lawful order" requires that the order be given by a police officer or an authorized peace officer. It must also be established that the conduct occurred in a public place, and that the defendant acted with intent to cause public inconvenience, alarm or annoyance or that he recklessly created a risk thereof ( see People v. Cohen, 6 Misc.3d 1019(A) [Crim. Ct, N.Y. Co.2005] ).
Criminal Procedure Law §§ 170.30 and 170.40 grant the court discretion to dismiss a criminal charge in the interest of justice. To warrant a dismissal in the interest of justice, the court must be satisfied that there exists some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would result in injustice (CPL § 170.40). In making this determination, the court must engage in a sensitive balancing of the interest of the individual and the State, giving due consideration to the criteria enumerated in the statute ( see People v. Clayton, 41 A.D.2d 204 [App. Div., 1st Dept.1973] ).
Section 170.40 (1) of the CPL sets out ten factors to be considered individually and collectively in guiding the court in the exercise of its discretion. These factors are:
a. the seriousness and circumstances of the offense;
b. the extent of harm caused by the offense;
c. the evidence of guilt; whether admissible or inadmissible at trial;
d. the history, character and condition of the defendant;
e. any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
f. the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
g. the impact of a dismissal upon the confidence of the public in the criminal justice system;
h. the impact of a dismissal on the safety or welfare of the community;
i. where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
j. any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The power to dismiss a case in the interest of justice is committed to the trial court's discretion and may be exercised " only in that rare' and unusual' case where it cries out for fundamental justice beyond the confines of conventional considerations' " ( People v. Harmon, 586 N.Y.S.2d 922 [App. Div ., 1st Dept.] ). Further, CPL § 170.40 allows a dismissal in the interest of justice where a " compelling" factor, consideration or circumstance requires it. The word " compelling" implies that the facts and circumstances must be of a nature that denial of the motion to dismiss in the interest of justice would be such an abuse of discretion as to shock the conscience of the court ( People v. Stern, 373 N.Y.S.2d 932 [NY Co.Crim. Ct.1975] ).
The facts adduced at different trials concerning the same allegations and circumstance establish that any outcome other than dismissal would be unfair and against the interest of justice. The cases of other co-defendants have been dismissed after trial based on the same facts and incident alleged in the instant cases. In the case of People v. Gregory Allen, docket number 2011KN094288, a trial order of dismissal was granted after the testimony of the police officers showed that there was no obstruction as protesters moved and excused themselves out of the way when asked by the police and members of the public to move. Testimony given by one of the Police Captains in charge established that " no one refused to move out of the way of the police officers when they did approach" ( People v. Gregory Allen, docket number 2011KN094288, p. 7, [Crim. Ct., Kings Co.] ). According to the court's decision in People v. Allen, a video recording was presented at trial which showed that the defendants were peacefully assembled and did not attempt to prevent anyone from ingress and egress. If there was no justifiable reason for the protesters to move then it cannot be sad that the police's order to disperse was lawful. The facts and circumstances in the instant cases are the same as that in the cases of co-defendants Gregory Allen, Olugbenga Akinnabe, Morgan Rhodewalt, Marina Benedetto, Carl Dix, and Luis Barrios. All of those cases were dismissed after trial for failure to establish an intent to obstruct or because the People failed to meet their prima facie burden. Consequently, the motion to dismiss must be granted in the interest of justice to ensure confidence and consistency in the process and because previously discerned evidence so requires.
The circumstances herein clearly fall within the standard outlined in CPL § 170.40(1) and case law. First, the allegations do not provide sufficient facts to establish sufficient cause for the defendant's arrest as essential details are missing to demonstrate commission of the crime. The facts are that approximately fifty person gathered in front of the 73rd precinct to protest the department's stop and frisk policy. The facts adduced at the trial of the co-defendants established that the police created areas outside of the precinct for the protesters to gather. The allegations do not indicate whether the entrance way was blocked for a couple of seconds or for a prolonged period to demonstrate an intent to block traffic ( see People v. Jones, 9 N.Y.3d 259  holding charge of Penal Law § 240.20(5) jurisdictionally insufficient where " nothing in the information indicated how defendant had the intent to or recklessly created a risk of causing public inconvenience, annoyance, or alarm. Something more than a mere inconvenience of pedestrians was required to support the charge ." ).
Further, as to the first and second prong of the analysis, the seriousness of the instant cases is at best di minimis given the preceding discussion. The defendants are alleged to have been involved in a peaceful protest in front of a precinct to address an issue concerning the public welfare. Concomitantly, the harm demonstrated in this cases is minimal as the defendants were said to have been involve in the free exercise of political speech and no harm is alleged. There seems to be no victim in this case. Therefore, the seriousness of the violation alleged is at best di minimis and involves little, if any, harm.
Further, there appears to be little evidence of guilt given that the cases of the other co-defendants were dismissed after trial for lack of evidence and failure to meet a prima facie burden to establish the commission of the single violation charged. There is no indication that the defendants' have any history or character defect that would give cause for denial of the instant motion. As stated above, there appears to be no victim in this case. Therefore, the attitude of the complainant or victim, with respect to the motion, is not at issue herein. There appears to be no exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendants. There would be little if no purpose or beneficial effect in imposing a sentence upon the defendants since the facts alleged indicate that no crime may have been committed. Given the compelling circumstance of this case, the public's confidence in the criminal justice system would be preserved with the dismissal of these proceedings. There is also no cause to believe that dismissal of this proceeding would adversely impact the safety or welfare of the community.
In considering the factors set forth in CPL § 170.40, as required, the cases provides a sufficient showing of " the existence of some compelling factor, consideration or circumstance [that] clearly demonstrat[es] that conviction or prosecution of the defendant ... would constitute or result in injustice" (CPL § 170.40). Thus, the cases are hereby dismissed in the interest of justice given the facts and the totality of the circumstances herein.
Accordingly, the defendants' motion to dismiss in the interest of justice is granted.
This constitutes the decision, opinion and order of the Court.