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.

The Soares-Carter dispute landed in state court after a May 2013 suppression hearing in which Carter threatened to hold the district attorney in contempt if he did not call witnesses. After an adjournment, Soares brought an action in Albany Supreme Court to prevent a contempt charge.

Acting Supreme Court Justice Richard Platkin ruled in Soares v. Carter, 41 Misc 3d 195 (2013), that Carter could not use his contempt powers to compel the district attorney to call witnesses or to put in proof at the suppression hearings. But Platkin also held that Soares could not simply walk away from the case without bringing a motion for dismissal, such as in the interest of justice (NYLJ, July 16, 2013).

The Third Department heard oral arguments in November (NYLJ, Nov. 25).

Mark Mishler of Albany and Kathy Manley of Kindlon Shanks & Associates of Albany are representing the four defendants.

James Knox of the E. Stewart Jones firm in Troy is representing Carter after Attorney General Eric Schneiderman's office recused itself.

Knox said Carter intends to seek leave to appeal. "What it leaves unanswered is the most important question that Judge Carter has: Is the filing of a letter by the DA indicating that he will not be prosecuting the case sufficient to terminate a prosecution under the CPL?" Knox said. "The court stopped short of saying that a declination was sufficient."

Christopher Horn, a special counsel to Soares who argued for the district attorney, said the ruling affirms Soares' contention that the "ultimate discretion" whether or not to prosecute a case was up to the district attorney and could not be imposed by a judge. He said the District Attorneys Association filed an amicus curiae brief to support Soares' position on that point.

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