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.

Lahtinen said state law and court precedent both recognize that a prosecutor should not be allowed to seek dismissal of a charge if motivated by bad faith, such as accepting of a bribe. In those instances, Article XIII, §13 of the state Constitution and state Executive Law §63[2] both allow the courts to ask the governor to remove the prosecutor and the state attorney general to find a replacement, the judges said.

But the Third Department said no such malfeasance was involved in Soares' refusal to go forward on prosecuting the "Occupy" cases, citing Carter's own brief that said "no one suggests improper motives of petitioner [Soares] in this case."

In light of that, the court pointed the parties toward a dismissal in the interest of justice under CPL 170.40[1][j].

"Given that petitioner [Soares] and the defendants desire dismissal of these minor low-level charges, respondent [Carter] denies knowledge of any ill-motive by petitioner and there is no assertion of nefarious conduct subverting justice by petitioner, it seems quite unlikely that an appropriate considering and weighing of the statutory interest of justice criteria would nonetheless require that these cases continue," Lahtinen wrote.

He said Soares "inappropriately" argued that he did not pursue interest of justice dismissal because the district attorney thought Carter would not grant such a motion.

"Every case ... is unique and, before venturing down the much more time consuming path chosen, prudence would seem to have dictated at least an effort at the economical course," Lahtinen wrote. "Indeed, respondent [Carter] appears to have invited such a motion in these cases."

A less attractive and more time-consuming alternative would be for Soares to stipulate at a suppression hearing that he will not offer materials into evidence that the defense seeks to suppress under CPL 710.60[2][b]. That would lead to dismissal of the charges based on lack of evidence, the court said.

Should that course be taken, Soares' "discretion ultimately will be judged at the ballot box," the court said.

Lahtinen concluded by writing that "we need not belabor the point any further."

"Where a district attorney decides not to pursue a pending case...then avenues exist under the CPL for dismissal—some of which are more respectful than others of the taxpayers who are funding the Judiciary and the prosecutor (as well as often the defense counsel via assignment),'" he wrote.

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