Cite as: The People v. 88 Individuals, NYLJ 1202579597539, at *1 (City, AL, Decided March 2, 2012)

Judge Thomas K. Keefe

Decided: March 2, 2012


By: Mark S. Mishler, Esq., Mark S. Mishler, PC, Occupy Albany Legal Working Group, Albany, NY.

Hon. P. David Soares, Albany County District Attorney, Albany County Judicial Building, Albany, NY.

Howard Engelskirchen, Esq., Philmont, NY.

Frank J. Barbaro, Esq., Watervliet, NY.

Constance R. Brown, Esq., Albany, NY.

Alex C. Brownstein, Esq., Niskayuna, NY.

Colin Donnaruma, Esq., Voorheesville, NY.

Stephen F. Downs, Esq., Selkirk, NY.

Marisa Franchini, Esq., Program and Counsel, Albany, NY.

Peter Henner, Esq., Clarksville, NY.

Robert G. Magee, Esq., Albany, NY.

Kathy Manley, Esq., Kindlon and Shanks and Associates, Albany, NY.

Miguel G. Ortiz, Esq., Selkirk, NY.

Anita Thayer, Esq., Law Offices of Mark S. Mishler, PC, Albany, NY.

Marty Rosenbaum, Esq., Albany, NY.

Marwa Elbially, Esq., Johnathon Bailey, Esq., Samanatha Howell, Esq., c/o Mark Mishler, PC, Albany, NY.





By separate Informations with Supporting Affidavits, each of the 88 defendants set forth in Exhibit A, attached hereto, was charged with disorderly conduct (PL 240.20[6]) and/or trespass (PL 140.05[6]) for conduct allegedly occurring on or about November 11, 2011 and thereafter and arising from the events commonly known as the "Occupy Albany" demonstrations in Academy Park/Lafayette Park, Albany, New York.

The individual cases for each of the 88 defendants is hereby joined for the sole purpose of this motion to dismiss. The Albany County District Attorney was duly served with the motion and has not appeared.

At the time of the arraignment of each of the 88 defendants, the District Attorney's Office orally announced to the Court on the record that it declined to prosecute the 88 cases because it




would not be a worthwhile use of the limed resources of the District Attorney's Office to prosecute these 88 cases where there were no allegations of violence or property damage. Whereupon, the defendants' attorneys each orally moved to dismiss the charges against each of the defendants. The Court deferred decision and requested a written motion from the defendants' attorneys.

Contrary to defendants' assertion that the Court lacks jurisdiction to determine the motion, even where there is a jurisdictional or legal impediment to prosecution, the court retains the authority to entertain a motion to dismiss (see CPL 170.30[1][f]).

The District Attorney is charged with the responsibility to conduct all prosecutions for crimes and offenses in the county in which he is elected (County Law 700[1]) and enjoys broad discretion over who, what and when to prosecute (see Matter of Holtzman v. Goldman, 71 NY2d 564,573 [1988]; People v. Di Falco 44 NY2d 482, 486 [1978]). Moreover, "a District Attorney enjoys wide latitude and discretion to allocate and utilize both the manpower and resources of his office in the manner believed to be most effective to the discharge of his duties" (Murphy on behalf of County of Rensselaer v. Dwyer, 101 AD2d 376, 378 [1984]). In determining when and when not to prosecute, a District Attorney is presumed to act impartially (see Holtzman v. Hellenbrand, 130 AD2d 749, 750 [2nd Dept 1987], appeal denied 70 NY2d 607 [1987]).

Absent a clear abuse of discretion (See Ibid.), which is not indicated here, this Court's only recourse is to dismiss the Informations (see CPL 170.30 [1][f]; see Cloke v. Pulver, 243 AD2d 185 [1988]).

Accordingly, the Informations against the 88 defendants set forth on Exhibit A, attached hereto, which the District Attorney has declined to prosecute, are dismissed.

This shall constitute the Decision and Order of the Court.

So Ordered.