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."

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.

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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