Panel Offers Solution in Dispute Over 'Occupy' Arrests

, New York Law Journal

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Occupy Albany
Occupy Albany protestors lock arms around their camp in Academy Park in 2011.

ALBANY - An appeals court proposed a remedy Thursday for a dispute that has simmered for more than a year in Albany between a city court judge and a district attorney.

A four-judge panel of the Appellate Division, Third Department, panel suggested in Soares v. Carter, 517191, that it would be appropriate to dismiss the cases against four "Occupy Albany" protesters who were arrested in June 2012. Albany City Court Judge William Carter (See Profile) could dismiss the cases in the interest of justice upon a motion by Albany County District Attorney P. David Soares, the panel declared.

While expressing exasperation that the dispute has lasted so long without a resolution, the appeals court did not indicate what should be done if its advice is rejected.

Soares and Carter have squabbled since September 2012 over the relatively minor charges against the four demonstrators.

Charges against most of the approximately 100 people arrested in city parks during the Occupy Albany protests in late 2011 and early 2012 were dismissed because Soares, who said he was sympathetic to the economic equality goals of the demonstrators, declined to prosecute them.

But the cases of four defendants arrested in June 2012—Colin Donnaruma, Daniel Morrissey, Eric Catine and Timothy Holmes—landed on Carter's calendar. All four were charged with disorderly conduct, a violation. Donnaruma, who is an attorney in Albany, was additionally charged with resisting arrest, a misdemeanor.

Soares said in September 2012 he would not proceed with those four prosecutions. But Carter has maintained that the district attorney can't simply decline to prosecute, since the D.A.'s office has lodged charges against the four, taken part in an arraignment and filed a superseding information.

The Third Department, wading into the dispute, suggested the standoff should have been resolved well before it reached the appeals court level.

"Disposition of these cases should not be as complicated or time consuming as they have become," the court said in a ruling written by Justice John Lahtinen (See Profile).

The panel, which also included Justices Leslie Stein (See Profile), William McCarthy (See Profile) and Elizabeth Garry (See Profile), said the best way out of the dispute at this point was through the "catchall" provision of CPL 170.40[1][j]. The statute allows for the dismissal of a prosecutor's information if "a judgment of conviction would serve no useful purpose."

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