Opinion
2011NY024427
10-28-2011
The People of the State of New York v. Melissa Kleckner, Alesandra Lozano, Natasha Dillon, Kevin Donohue, Robert Moore, Defendants.
For the Defendants: Theodore Bohn, Esq. For the People:Cyrus R. Vance, Jr., New York County District Attorney (Erica O'Brien, of Counsel)
For the Defendants: Theodore Bohn, Esq.
For the People:Cyrus R. Vance, Jr., New York County District Attorney (Erica O'Brien, of Counsel)
Felicia A. Mennin, J.
The defendants, Melissa Kleckner, Alesandra Lozano, Natasha Dillon, Kevin Donohue, and Robert Moore, are charged with Obstructing Governmental Administration in the Second Degree (Penal Law ["PL"] §195.05) and Disorderly Conduct (PL §240.20[5]). They move for an order dismissing the accusatory instrument (1) as facially insufficient pursuant to Criminal Procedure Law ("CPL") 170.30(1)(a), 100.15(3), and 100.40(1)(a) and (c), (2) as selectively enforced and (3) in the interest of justice pursuant to Criminal Procedure Law (CPL) 170.40. On September 16, 2011, the Court issued its decision orally. The following is the Court's written opinion.
FACIAL SUFFICIENCY
The factual allegations of the complaint provide in relevant part:
Deponent states that [on April 4, 2011, at about 17:00 hours in front of 633 Third Avenue in the County and State of New York] the deponent observed the defendants [Melissa Kleckner, Alesandra Lozano and Natasha Dillion] and separately-charged defendants Robert Moore (M11629255) and Kevin Donohue (M11629251) standing in the crosswalk of Third Avenue, in front of the above-mentioned location, and that all five
individuals were handcuffed to a chain stretching the entire length of the crosswalk. Deponent further states that such conduct of the defendants and separately-charged defendants did obstruct vehicular traffic in that northbound traffic on Third Avenue was halted for approximately three to five minutes.
Deponent further states that deponent is informed by Detective Joseph Bunster, shield 01078 of the 014-Midtown South Precinct, that informant ordered each defendant to move out of the way of vehicular traffic and that each defendant refused to do so, thereby further blocking vehicular traffic and causing public inconvenience.
It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must satisfy three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).
OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION
IN THE SECOND DEGREE
The defendants contend that the accusatory instrument is facially insufficient as to the count of Obstructing Governmental Administration in the Second Degree because there are no facts alleged which reasonably establish that they impeded the police from carrying out their duty. The Court disagrees.
PL §195.05 provides in relevant part the following:
A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of the law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . .
In characterizing the purpose behind enactment of this statute's predecessor, PL §1851, the Appellate Term, First Department, held in People v. Crayton, 55 Misc 2d 213, 216 (1967) that "[the] obvious intent . . . is that the police go about their business without any obstacles put in their way . . . ."
Case law has firmly established that PL §195.05 requires a defendant's interfering act to be physical in nature. People v. Case, 42 NY2d 98, 101 (1977). The accusatory instrument satisfies the physical interference requirement by alleging that the defendants had chained themselves to each other along a crosswalk thereby physically preventing the movement of vehicular traffic and had refused to move off of the street when ordered to do so by a police officer. A defendant's mere refusal comply with a police officer's order to leave a location where he/she has no right to remain constitutes a physical act sufficient to establish a prima facie case of Obstructing Governmental Administration in the Second Degree. See People v. Cronk, 2002 WL 992156 (App Term, 1st Dept)(defendants refused police order to leave after chaining themselves to each other and a tree inside a barricaded area at 30 Rockefeller Center).
Even assuming that defendants assembled in the crosswalk and commenced their demonstration when there was a green light in their favor, the Court takes judicial notice of the fact that such traffic lights change after less than a minute or two and the defendants are alleged to have stayed in place for three to five minutes, well after they would have had a right to have been in that location.
The defendants argue that the accusatory instrument does not make out this crime because they did not prevent or attempt to prevent their arrest and peacefully accepted that arrest. It is certainly true that the accusatory instrument does not present any allegations regarding the defendants' behavior after the police moved to arrest them. However, the defendants' conduct at the point when the police were placing them under arrest is not the basis for the Obstructing charge. The sole focus of the accusatory instrument is upon the defendants' alleged blocking of the street and refusal to move from the street so that vehicular traffic would be able to proceed prior to their arrests.
In a reply to the People's response to the defendants' motions, the defendants argue that "the police were not engaged in the regulation of traffic at the time of this incident," and thus, there was no official function that was obstructed. The facts alleged in the accusatory instrument, however, clearly show, at the very least, an attempt by the defendants to make it impossible for vehicular traffic to proceed along the street and, by their refusal to move, a direct interference with an effort by the police to make the street passable again. The police's response to their actions, in attempting to get them to move so that traffic could proceed, and protecting both pedestrians and drivers from the confusion resulting from the defendants' efforts to derail the regular passage of traffic was an official function for purposes of PL §195.05. In any event, PL §195.05 does not require that such attempt be successful. Furthermore, a challenge to the accuracy of the scenario presented in the accusatory instrument may not be raised in a motion to dismiss. See People v. Thomas, 4 NY3d 143,146 (2005).
The defendants also contend that they "carried a banner which demanded Marriage Equality and instructed viewers to telephone the Governor's office," thereby making their conduct protected political speech. The Court agrees. However, the state, through the police, has the authority to place reasonable time, place and manner limitations on speech. See People v. Barton, 8 NY3d 70, 76 (2006). The defendants' right to demonstrate in favor of nondiscriminatory marriage rights is clear. Nothing in the accusatory instrument suggests, let alone establishes, that the police conduct was aimed at stopping the defendants' exercise of their free speech rights because of the content of that speech. It is reasonable to infer from the accusatory instrument that the police ordered the defendants to leave the crosswalk because by standing there they were making it impossible for other persons in vehicles to exercise their right to pass along the street. Furthermore, the defendants were endangering themselves and others by blocking traffic.
As the Court concludes in the discussion below, the accusatory instrument reasonably makes out a prima facie case of Disorderly Conduct against these defendants. Therefore, factual allegations that the defendants engaged in an independently unlawful act, that is disorderly conduct, coupled with the defendants' disobeying of a police officer's orders to remove themselves from the street also establishes a prima facie case of Obstructing Governmental Administration in the Second Degree. See People v. Cronk, 2002 WL 992156. Indeed, the factual allegations in this case are very similar to those in People v. Wise, 25 Misc 3d 135A. (App Term, 1st Dept 2009). In Wise, the information alleged that the defendants were lying down in the middle of an intersection, bound to each other by chains, obstructing the vehicular and pedestrian traffic, and that they failed to move when police officers requested that they disperse. The Appellate Term upheld the trial court's denial of a motion to dismiss on facial insufficiency grounds.
The defendants' reliance on this Court's decision dismissing a count of Obstructing Governmental Administration in the Second Degree in People v. Di Poumbi, 23 Misc 3d 1127(A)(Crim Ct, NY County 2009)(unreported), is entirely misplaced. In that matter, the sole basis for the Obstructing charge was the allegation that the defendant had opened his car door onto the arm of a traffic agent who was issuing the defendant a summons after having pulled his vehicle over pursuant to a traffic stop. The complaint never stated exactly what the official function was that the officer was prevented from having performed. As the court noted, even assuming that it was reasonable to infer from the complaint as written that the traffic agent was prevented from continuing to write the summons, the causal relationship between the impact of the taxicab's door and the unissued summons was not made out. This Court concluded that the allegations did not reasonably show that defendant Di Poumbi's action, in opening the door to his cab, was intended to prevent the officer from writing a traffic summons, a requirement for an Obstruction charge.
In this case, there is a direct causal relationship between the defendants' failure to move from the street and the interference with the police officer's effort to re-open the street to vehicular traffic. The defendants' entire purpose in chaining themselves together and stretching themselves across Third Avenue was to block traffic so as to draw attention to their cause.
Accordingly, the defendant's motion for an order dismissing the count of Obstructing Governmental Administration in the Second Degree as facially insufficient is hereby denied.
DISORDERLY CONDUCT
PL §240.20 provides in relevant part:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... (5) He obstructs vehicular or pedestrian traffic.
Defense counsel does not specifically advance any grounds for the dismissal of the Disorderly Conduct count in his notice of motion or affirmation, but he has moved for an order dismissing the entire accusatory instrument on facial insufficiency grounds. Thus, the Court will consider the facial sufficiency of that charge in light of the defendants' apparent intention to seek dismissal of the entire complaint.
The accusatory instrument clearly establishes, for pleading purposes, that by chaining themselves together and standing in the middle of Third Avenue, the defendants took actions specifically for the purpose of snarling vehicular traffic. The Court notes that this conduct allegedly occurred at 5 p.m. on a weekday during the evening rush hour. Additionally, it may be reasonably inferred that the defendants' conduct was intentionally directed at creating a public disturbance or recklessly created a risk of such by making it impossible for vehicles to pass along this major thoroughfare.
The defendants counter that the police themselves had already blocked motor vehicle traffic before the defendants assembled along the cross walk. Whatever measures the police may have taken to protect both the demonstrators and other pedestrians in anticipation of the defendants' actions have no relevance to a consideration of the facial sufficiency of the accusatory instrument. The court's review is restricted to the four corners of the complaint. People v. Thomas, 4 NY3d at 146.
Accordingly, the Court holds that the Disorderly Conduct count is facially sufficient and declines to dismiss this count on such grounds.
MOTION TO DISMISS FOR SELECTIVE ENFORCEMENT
The defendants contend that the accusatory instrument was filed in this matter selectively because the police allegedly did not respond on another date to defense counsel's telephone call to the police to report that an oil delivery truck was blocking vehicular traffic on a street while the driver made a delivery and that he refused other drivers' requests to move the oil truck out of the way.
The defendants assert absolutely no legally cognizable basis in support of this claim. In order to establish a claim of selective enforcement of a statute, i.e., a violation of his/her right to equal protection, a defendant must show "conscious, intentional discrimination" or "a consciously practiced pattern of discrimination." People v. Goodman, 31 NY2d 262, 268 (1972). "The conscious exercise of some selectivity in enforcement of the law is not in itself a constitutional violation." Id. The movant must show not only that "the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification." Matter of 303 W. 42nd St. v. Klein, 46 NY2d 686,693 (1979), quoted in People v. Blount, 90 NY2d 998, 999 (1997).
The defendants have not met their burden of showing that the alleged selective enforcement of the counts of the accusatory instrument is invidiously discriminatory. They have not shown that the alleged police failure to respond to their counsel's complaint against an oil truck driver's alleged blocking of the street on another date was comparable to their situation. Assuming that the alleged facts of the oil truck driver's conduct are true, that individual and the defendants were not similarly situated. There is nothing to indicate in defense counsel's recitation of events that the truck driver intended to block traffic rather that merely to make a delivery of heating fuel. The accusatory instrument shows that the defendants' intent was to block traffic to make a political point. Accordingly, the defendants' motion for an order dismissing the accusatory on selective enforcement grounds is hereby denied.
The Court takes judicial notice that defense counsel's alleged incident occurred on 64th street which is a narrow side street in Manhattan. The blocking of traffic on a side street while a commercial vehicle makes a delivery is vastly different from tying up traffic on Third Avenue, which is a multi-lane major thoroughfare.
MOTION TO DISMISS IN THE INTEREST OF JUSTICE
CPL 170.40(1) provides that a court may dismiss an accusatory instrument if "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. . . ." The statute lists the following ten factors which the court should consider, "to the extent applicable,":
(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 attrial;
(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 thedefendant;
(f) the purpose and effect of imposing upon the defendant asentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of thecommunity;
(h) the impact of a dismissal upon the confidence of the public inthe criminal justice system;
(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 convictionwould serve no useful purpose.The defendants' argument for dismissal in the interest of justice is that (1) none of the defendants have prior criminal convictions, (2) all are civil rights activists who were demonstrating in support of same sex marriage rights at the time of their arrest, (3), such activity is not the sort of conduct which deserves to be prosecuted, (4) that the defendants' conduct caused negligible harm and (5) prosecuting these defendants would serve no useful purposeful.
It is well established that a dismissal in the interest of justice is to be " exercised sparingly' and only in that rare' and unusual' case where it cries out for fundamental justice beyond the confines of conventional considerations.' "People v. Insignares, 109 AD2d 221, 234 (1st Dept), lv denied 65 NY2d 928 (1985) quoting People v. Belge, 41 NY2d 60, 62-63 (1976); People v. Howard, 151 AD2d 253, 256 (1st Dept) , lv denied 74 NY2d 811 (1989). In light of this guideline, the circumstances of this case do not merit the extraordinary measure of a dismissal in the interest of justice.
The defendants' motion characterizes their demonstration as having been carried out "peacefully." While the accusatory instrument in no way suggests the defendants acted violently, it is clear from the alleged facts that the defendants put themselves and others in danger by remaining in the street to block vehicular traffic with their bodies and disobeyed a direct request from a police officer to desist. Additionally, the defendants chose to stage their demonstration during evening rush hour when both vehicular and pedestrian traffic would be heavy and the disruption caused by their conduct would be great. In addition, not only did they hand-cuff themselves to a chain, but they also super-glued the locks to the handcuffs, making it even more difficult for the police to remove them from the traffic lanes and extricate them from the handcuffs. Thus, the defendants' acts clearly contrast with an orderly demonstration in which participants convey their message in a manner that does not inhibit the public's ability to move freely along a major thoroughfare, without risk to the safety of the public or the demonstrators.
The defendants contend that their prosecution would serve no useful purpose and that the dismissal of the charges against them would not result in the public's loss of faith in the criminal justice system. However, the defendants' unlawful demonstration, although brief and non-violent, did affect a significant number of people due to the location and time of the demonstration. A dismissal of the case would indicate that the rights of those people who were inconvenienced and placed at risk by the defendants' conduct are not important. This case is dissimilar to People v. Gragert, 1 Misc 3d 646, 649 (Crim Ct, NY County 2003), a case relied upon by the defendants, in which a dismissal in the interest of justice was granted where the defendant had lain down in middle of a sidewalk to protest the war in Iraq. Although defendant Gragert's conduct had created an inconvenience for pedestrians, her presence did not bring movement to a total standstill, as occurred in the instant case, because pedestrians were still able to step over or around Gragert. Furthermore, the risk of injury to Gragert or other members of the public was much lower. In comparison, the defendants in the present case created a greater hazard by positioning themselves in the street to block vehicular traffic.
In People v. Arbeiter, 169 Misc 2d 771, 773 (App Term, 1st Dept 1996), a case in which a dismissal in the interest of justice was reversed, the defendants had gathered across the intersection of Fifth Avenue and 42nd Street along the route of the later-to-begin annual St. Patrick Day parade to protest the exclusion of a gay and lesbian contingent from the parade. The defendants' action snarled traffic for an hour. The trial court had decided that a Clayton dismissal was in order because the City had unjustly denied gay and lesbian a permit to hold a counter-parade. The Appellate Term disagreed. It held that although the defendants were demonstrating in support of their sincerely held belief, "sincere beliefs are not an excuse for lawless conduct." People v. Arbeiter, 169 Misc 2d at 773.
The reasoning of Arbeiter seems particularly applicable when, as in this case, the defendants had lawful alternatives to express their message and to raise awareness of their cause. For example, they could have sought a parade permit from the police department pursuant to their free speech rights guaranteed by the constitutions of the United States and the State of New York, which may only be limited by reasonable time, place and manner considerations. See Cox v. State of New Hampshire, 312 US 569, 576 (1941); People v. Barton, 8 NY3d at 76. Nothing in the record of this court shows that the defendants made any attempt to obtain a parade permit let alone that such a request had been denied.
The Court respectfully declines to follow the decision in People v. Ben Levi, 149 Misc 2d 394 (Crim Ct, NY County 1990), cited by the defendants. In that case, the court granted a motion to dismiss in the furtherance of justice Disorderly Conduct and Resisting Arrest charges filed against several defendants in connection with their blocking of a street to protest the City of New York's response to the AIDS epidemic, which was at its peak at the time. Unaddressed in the Ben Levi decision are the legal consequences of the defendants' not having sought and been denied a parade permit. It is black letter law that a municipality has the constitutional authority "to control the use of its public streets for parades or processions." Cox v. State of New Hampshire, 312 US at 576; see People v. Barton, 8 NY3d at 77. Since the publication of Ben Levi almost 21 years ago, no other court at any level has seen fit to cite that case let alone deem it persuasive authority.
In Ben Levi, the court characterized the interference with pedestrian and vehicular traffic as a clear inconvenience to others but inoffensive and peaceful. The court also noted that the demonstrators' resistance to arrest was solely passive. Also highlighted in the decision was the fact that most of the defendants had unblemished criminal records and commendable motives.
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For these reasons, there must be some special circumstances or qualities of the defendants which would prompt the Court to resort to the extraordinary measure of granting a dismissal in the interest of justice. In People v. Gragert, for example, the court was influenced by the fact that the defendant was seventeen and that as a minor she would not be expected by society to exercise the same level of judgment as would be expected of an adult. People v. Gragert, 1 Misc 3d at 649-650. In this case, the defendants were all adults at the time of their arrest, and no proof has been offered to suggest let alone convince the Court, that any of them failed to understand the consequences of their actions. See People v. Colon, 86 NY2d 861 (1995) (granting a dismissal in the interest of justice in part because defendant's mental disability rendered her unable to appreciate the nature of her conduct). The defendant in Gragert also submitted a number of letters along with her motion to dismiss attesting to her involvement in volunteer work and community groups.
While the defendants in the instant case apparently have no prior criminal convictions, this factor alone is not sufficient to warrant a dismissal. People v. Diggs, 125 AD2d 189,191 (1986). Moreover, the People offered to agree to an adjournment in contemplation of dismissal ("ACD") whereby the cases of all the defendants would be dismissed and the record sealed at the end of six months if the defendants each performed three days of community service and were not re-arrested during the six-month period, see CPL 170.55, an offer which defendants Lozano and Moore accepted. Thus, the defendants have not demonstrated that their circumstances merit the extraordinary relief of immediate dismissal pursuant to CPL 170.40.
New York City has long been a protector of and a magnet for the exercise of free speech. It does more than most other major cities to recognize and accommodate demonstrations and protests, subject to lawful time, place and manner regulations on such activity. Here, the defendants made no effort whatsoever to take lawful measures to advance their cause. Rather, they placed their interests above those of their fellow citizens at large, and, as a consequence, do not merit the extraordinary remedy sought by them. Accordingly, the defendants' motion for a dismissal in the interest of justice or in the alternative a hearing to consider a dismissal in the interest of justice is hereby denied.
This opinion shall constitute the decision and order of this court.
Dated: October 28, 2011
New York, New York
_______________________
Hon. Felicia A. Mennin, JCC