Opinion
Docket No. CR-5571-21
05-17-2022
The PEOPLE of the State of New York, v. Mikayla FOSTER, Defendant. The People of the State of New York, v. Shaqueena Charles, Defendant.
Robert M. Carney, District Attorney, Schenectady (Michael DeMatteo of counsel), for plaintiff. Adriel Colon-Casiano, Albany, for defendants.
Robert M. Carney, District Attorney, Schenectady (Michael DeMatteo of counsel), for plaintiff.
Adriel Colon-Casiano, Albany, for defendants.
Carl G. Falotico, J. Defendants are charged with disorderly conduct in violation of Penal Law§ 240.20(3).
The credible testimony and evidence set forth the following facts:
On August 26, 2021, an event was held in the rear parking lot of Trustco Bank, located at 1048 State Street in Schenectady. The purpose of the event was to engage with the community by providing fingerprinting and photographing services to children , giving out bike helmets to children, and providing other goods such as hand sanitizer and ice cream gift cards. The event had several participating organizations with representatives stationed at tables and under tents, including Trustco Bank, MVP Health Care, the Schenectady Police Department and the Schenectady Fire Department. The parking lot the event took place in is approximately 150 feet long by 60 feet wide.
See https://childidprogram.com/
Sometime between 5:30 p.m. and 6:00 p.m., the defendants, who use the pronouns they and them, were seen in a vehicle driving in the vicinity of the event. They were with a group of approximately two other people, and as the vehicle passed by the occupants shouted at the Police Chief and displayed their middle fingers towards the event. The vehicle then parked nearby and approximately four individuals, including the defendants, walked to the parking lot the event was taking place in. At the time, there were approximately twenty to thirty community members there, many of which were young children, (not counting representatives from the attending organizations). Also present were three candidates running for City Council, a candidate running for the local congressional district, the Mayor, and the Police Chief.
As they approached, defendant Mikayla Foster began to broadcast a 26-minute continuous livestream video from their cellphone to their Facebook page, which was downloaded by the Schenectady Police and a copy of which was admitted into evidence. As they entered the parking lot, the defendants and individuals with them started shouting and swearing, which prompted Patrolman Liggett to turn on his body-worn camera. That camera recorded for approximately 24-minutes and a copy of that video was also admitted into evidence. Almost all the actions of each defendant during the remainder of their time at the event were either audio or video recorded by either the body-worn camera or defendant Foster's cellphone. These recordings provide all the necessary evidence to determine the outcome of the trial.
Defendant Mikayla Foster
Defendant Foster begins their recording by referencing their recent arrest for writing on the Schenectady Police Department with chalk, and a 2017 incident where Andrew Kearse passed away while in police custody, which led to an investigation by the New York State Attorney General. They walked past the Police Chief and greeted him, then ended greeting by saying "fuck you," and after surveying the parking lot remarked "Aww, are we disrupting your happy event where you hand out free shit to black kids like you actually give a fuck?"
Shortly thereafter, the Defendant explained why they were at the event:
"We're here to disrupt this event, because there's absolutely no purpose to having an event where you're handing out hand sanitizer to black kids but they didn't go to the event put on by those black kids a couple of minutes ago. It ended at 6:00. You didn't go to any back-to-school events for black kids put on by black kids in Schenectady, and then you locked a couple black kids up just a couple weeks ago for chalk. So that's why I'm here, I will always disrupt community photo ops for police officers, because none of these People have ever respected me, or anybody like me."
For the first 13 minutes of their recording, defendant Foster used over a dozen profanities while traversing the parking lot. The defendant chastised elected officials for not going to a different youth event earlier in the day, tried to get complaint forms from police officers, stated their intention to file numerous complaints against the Schenectady Police Department, and referenced a "community task force review" and their displeasure with the results that came from it. They also designated the Mayor and Police Chief as "Bozo number one and Bozo number two" before they reprimanded the Mayor for a number of different reasons. That reprimand is concluded by saying "I hope you have the day you deserve; I hope it's a shitty one."
Shortly thereafter the defendant's demeanor began to change. They saw someone wearing a hat they didn't like, and shouted that the person was a "honky-tonk stupid bitch with the Joy hat ... she wanna say nigga so bad, you wanna say nigga so bad. She wanna say nigga so bad, the honky bitch. With the fucking Joy hat on, just say you hate black people." The person wearing the hat, who actually was Elizabeth Joy, a candidate running for the local congressional district, was standing next to a young child at the time.
During the cross-examination of one of the police officer witnesses, defense counsel insinuated that the use of the words "honky" or "honky-tonk" may be a reference to a type of music. It is clear from the demeanor of the defendants, as well as the totality of the circumstances, that the defendants meant to use it in the manner as it is defined by the Merriam-Webster dictionary: "an insulting and contemptuous term for a white person."
About a minute later, defendant Foster's attention turned towards a cameraperson for a local news company. They shouted to the person:
"I hope you have the day you deserve too buddy, a fucked up one. A fucked up day. What news channel are you with? Six? I mean Ten? Oh you're with Ten, yeah they suck. Yeah they never report the actual story. You want us to stop? That's funny, I'm sorry you're so fucking uncomfortable and people are fucking dying. Do you even live in Schenectady? You weren't over there at the youth event, where people were getting back to school supplies, but you're here to report some fucking pigs. Yea but what did you record? You weren't telling the kids to stop but you're telling the adults who were there to stop, because you're fucking uncomfortable. You're
fucking weak. Privileged as fuck. Do you live in Schenectady? Do you live in Schenectady? Ah suck a dick."
When defendant Foster's tirade against the cameraperson ended, an unidentified person said that people had started to complain about the defendants’ swearing, given the amount of children present. Even with that request, defendant Foster's shouted, extremely loudly, "Mark Weekes, Officer Mark Weekes, killed Andrew Kearse in the back of a Schenectady Police Department mobile, and nobody did shit about it. Mark Weekes killed Andrew Kearse. Look at all these fucking elected officials who didn't fucking show up to these kids events. Fucking, I'm sorry let me get my language together, cause somebody did ask me to do that."
The defendant's commitment to using appropriate language was short-lived, as a few minutes later they identified Elizabeth Joy for who she actually was, which prompted them to shout at her about her loss in the previous congressional election and about her clothes not being stylish. Defendant Foster ended this tirade by shouting "You literally lost, what a fucking loser."
Shortly after that, when defendant Foster started shouting at the news cameraperson again, he asked them to be quiet. This led defendant Foster to loudly shout "You've never been uncomfortable before? Then don't be a fucking journalist. Don't be a fucking pussy either. Ok we'll stop swearing." After the cameraperson continued to interview other police officers despite defendants’ shouting, defendant Foster started to loudly shout:
"Is it funny that Andrew Kearse is fucking dead because of these fucking pigs? Fuck you, I hope you lose your fucking job but let's not get uncomfortable because you're not going to lose your fucking job because you're white. Actually unlike these pigs, I hope you keep your job in the middle of a fucking pandemic. But I really hope you get some fucking karma bitch."
For the following two minutes until they left, the defendant again admonished a number of police officers, as well as the Mayor. As they began to walk toward the exit of the parking lot, defendant Foster loudly shouted "What a fucking loser, fucking losers. Losers. I hope you have a fucked up day. Suck a dick Liz Joy, suck a dick all you police officers, and suck a dick Mayor McCarthy."
Defendant Shaquenna Charles
Shortly after their arrival, defendant Charles got into an argument with the Police Chief and other police officers about how much they were swearing. This argument prompted Officer Liggett to turn on his body-worn camera. The recording begins with defendant Charles loudly shouting "She can say whatever the fuck she wants to say. Yes we can, yes you can, yes you can. You cannot police somebody's beliefs, you cannot police somebody's speech." After being told to stop swearing, defendant Charles shouted "No I don't have to do shit. Fucking dumbass, racist piece of shit." They ended this encounter by shouting "Get the fuck out of here, especially this white, honky ass bitch. I can say what I want to say, that's what I'm understanding, okay so stop telling me to stop fucking cursing when I want to curse."
After that the defendant loudly shouted "black lives matter" a number of times, before pointing in the direction of some police officers and saying "I want this bitch right here." They then confronted the Mayor and Police Chief regarding a task force that defendant Foster was allegedly removed from. They also loudly shouted to all the attendees about issues such as police chokeholds and how the officers don't live in or know the community. They then loudly shouted "Get the fuck outta here, all y'all are honky pig ass bitches. White trash."
Defendant Charles then confronted the Mayor about a number of issues, including the gentrification of a certain neighborhood. After that they moved on to the person wearing the Liz Joy hat, who they did not yet realize was actually Elizabeth Joy. They shouted "Look at that honky right there, aww look at that honky right there. Trailer park trash."
Next defendant Charles moved on to confront the cameraperson from the local news channel. They loudly shouted statements of unhappiness about "photo ops", about how people pretend to care about black people, and other issues. During this time, defendant Foster is twice told to stop swearing by Officer Liggett, which prompted defendant Charles to look directly at him and loudly yell "fuck, fuck" in a long, drawn-out manner.
After a couple more minutes where they generally shouted about issues related to racism and the unfairness of aspects of our society, defendant Charles then recognized Elizabeth Joy to be the candidate running for the local congressional district. She loudly shouted "Is that Liz Joy? Is that Liz Joy you honky? Liz Joy, look at this honky. I would be uncomfortable in this white bitch skin." Finally they criticized the clothing she was wearing, and then the Defendant loudly shouted "We have Mayor McCarthy, Chief Clifford, and fucking pig ass Liz Joy."
Following that, defendant Charles then joined defendant Foster to criticize the local news cameraperson using profanities. This prompted Officer Liggett to state "Again can you please stop swearing? There's a child, no, swearing, swearing, yes please just stop." Defendant Charles responded that they would not stop.
A few minutes after this, the defendants started to walk towards the exit of the parking lot. On their way out, defendant Charles loudly shouted "oh my God, Chief Clifford, and Mayor McCarthy, and fucking dumb ass Joy. I would be uncomfortable to be white. It's a new day in America, I hope, I hope y'all get used to it, because black people are coming up. White people will no longer oppress my people, victimize me, or any other way. Fuck y'all."
The Law
Under Penal Law § 240.20(3), "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture." Case law clearly shows that, in order to support a conviction for disorderly conduct it is necessary to find that defendant's disruptive statements and behavior must be of a public rather than an individual nature. This requirement comes from the element of intent, which requires proof of an intent to threaten public safety, peace or order, or to recklessly create the risk of it. Thus, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem" ( People v. Weaver , 16 N.Y.3d 123, 128, 919 N.Y.S.2d 99, 944 N.E.2d 634 [2011] ).
When determining whether an act carries public consequences, relevant factors to consider are the time and place of the episode; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the conduct and, if so, the nature and number of those attracted; and any other relevant circumstances (see People v. Munafo , 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780 [1980] ; People v. Pritchard , 27 N.Y.2d 246, 248—249, 317 N.Y.S.2d 4, 265 N.E.2d 532 [1970] ).
It is not a requirement that members of the public must be involved or react to the incident. Instead, the attention created by a defendant's actions, or the lack of such attention, is a relevant factor to be considered in the public dimension analysis. It is clear that a defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption (see People v. Todaro , 26 N.Y.2d 325, 329, 310 N.Y.S.2d 303, 258 N.E.2d 711 [1970] [stating that the defendant's "emphasis on the contention that the fact of disorder was not established to the exclusion of the risk that it might come to pass, ignores the very terms of the statute itself" (emphasis omitted)]; People v. Kennedy , 19 N.Y.2d 761, 762, 279 N.Y.S.2d 360, 226 N.E.2d 186 [1967] ["It is enough that disorder was threatened by defendant's conduct"]).
This is not to say that a person violates the disorderly conduct statute merely by making abusive statements to police officers or public officials. In People v. Baker , 20 N.Y.3d 354, 960 N.Y.S.2d 704, 984 N.E.2d 902 (2013), a defendant made two abusive statements to a police officer who was sitting in a patrol vehicle. The encounter was brief, lasting about 15 seconds. Though a group of bystanders gathered around the defendant, there was no reason to believe the spectators were drawn in for any other reason than curiosity. This extremely brief encounter was found not to support a conviction for disorderly conduct.
The same was true in People v. Gonzalez, 25 N.Y.3d 1100, 14 N.Y.S.3d 310, 35 N.E.3d 478 [2015] ). In that case a defendant shouted obscenities at police officers in a subway station in Manhattan, which triggered some onlookers to be surprised and others to become evasive. This brief interaction, which only lasted long enough for the defendant to walk five to ten feet, and then up a flight of stairs, was found to also not support a conviction for disorderly conduct.
Application of the Law to the Instant Case
In the instant case, defendant Foster's words make the intentions of both defendants clear:
"We're here to disrupt this event, because there's absolutely no purpose to having an event where
you're handing out hand sanitizer to black kids but they didn't go to the event put on by those black kids a couple of minutes ago. It ended at 6:00. You didn't go to any back-to-school events for black kids put on by black kids in Schenectady, and then you locked a couple black kids up just a couple weeks ago for chalk. So that's why I'm here, I will always disrupt community photo ops for police officers, because none of these people have ever respected me, or anybody like me."
Though defendant Charles did not make the same statement, there is no doubt based on their behavior and their coordination with defendant Foster that their intention was the same.
While I have no doubt that the defendants honestly thought that their actions in disrupting the event were serving a legitimate public purpose, it is clear that they intentionally meant to cause public inconvenience, annoyance, and alarm. No other conclusion is possible. Assuming, for the sake of argument, that it was not their intention, both defendants still recklessly created the risk of such inconvenience, annoyance and alarm. Such recklessness is shown by how several people, including police officers, the cameraperson, and various members of the public who were attending the event, asked them to stop their abusive, obscene language.
Regarding the time and place of the incident, the event took place in a parking lot in a commercial area of Schenectady, which is essentially the same as the location of the incident in People v. Weaver . Though in Weaver the incident took place at night and here the incident was in the early evening, there is no question that a reasonable person would expect there to be peace and relative quiet while attending an event which is directed primarily at children and their families. This is easily distinguishable from People v. Gonzalez , where the incident took place in a subway station, where loud noises and people behaving unpredictably are to be reasonably expected.
The testimony established that there were twenty to thirty people present during the incident, and the videos show many adults with children coming and going from the event. Though the defendants did not attract others to their disturbance, it is equally notable that their actions seem to have driven people away from them. I make this finding based on how they were asked to stop their profane and obscene language a number of times. Police Officer Liggett notes that he asked them to stop approximately eight times, the news cameraperson asked them to stop multiple times, and on defendant Foster's recording a member of the public said "The only reason I'm saying it is because a black person is saying it, they don't like the cussing with the babies here. And she's actually from this community."
Regarding the nature and character of their conduct, each defendant must be considered separately. Defendant Foster's actions went through two distinct phases. During the first thirteen minutes of their video, they admitted their intention to disrupt the event and used over a dozen profanities. That being said, their obscene language was generally descriptive in nature, as opposed to abusive towards particular groups or individuals, and their few instances of abusive obscene language being directed towards public officials were brief and limited in a way that courts have refused to recognize as disorderly conduct. (see People v. Baker , 20 N.Y.3d at 363, 960 N.Y.S.2d 704, 984 N.E.2d 902 [stating that "isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the "public harm" mens rea necessary to support a disorderly conduct charge"]).
Defendant Foster's conduct after the first thirteen minutes of their video changes dramatically. While they continue to raise legitimate issues regarding race and our society, the periods of protected, constitutional speech were interrupted by at least five instances of impermissible abusive, obscene language. Those incidents are: 1) when they first shout at Elizabeth Joy; 2) when they first shout at the news cameraperson; 3) when they scream about Police Officer Weekes; 4) when they shout at the news cameraperson again, and; 5) their actions as they left the event. Those incidents, which were detailed earlier in this decision, are individually, and certainly when taken together, proof beyond a reasonable doubt that the defendant Foster used obscene abusive language in a public place. That, considered along with the evidence of intent and public harm which has already been discussed, is proof beyond a reasonable doubt of each element of disorderly conduct, and therefore I find defendant Foster guilty.
An assessment of the actions of defendant Charles leads to the same conclusion. Although their actions during the incident also contained periods of protected, constitutional speech, they are interrupted by at least four instances of impermissible abusive, obscene language. Those incidents are: 1) when they initially confronted the group of police officers at the beginning of Officer Liggett's body-worn camera video; 2) when they berated Elizabeth Joy for the second time; 3) when they screamed "fuck, fuck" at Officer Liggett after he asked them to stop swearing, and; 4) their actions as they left the event. Those incidents, which were detailed earlier in this decision, are individually, and certainly when taken together, proof beyond a reasonable doubt that defendant Charles used obscene abusive language in a public place. That, considered along with the evidence of intent and public harm which has already been discussed, is proof beyond a reasonable doubt of each element of disorderly conduct, and therefore I find defendant Charles guilty.
I also believe it is appropriate to comment on the actions of the police officers on that day. Though the defendants voiced their contention that they had previously been mistreated by the police, and though they spent much of their time at the event antagonizing police officers, on that day law enforcement showed significant discretion, and even gave the defendants many more warnings than they were required to before charging them. As the Supreme Court stated in Feiner v. New York , "Their actions were motivated solely by a proper concern for the preservation of order, and that there was no evidence which could lend color to a claim that their actions were a cover for suppression of the Defendant's views and opinions" ( 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951) ).
Sentencing
Having found the defendants guilty, next I must turn to sentencing. An appropriate sentence must be a deterrent to further instances of this type of conduct and must punish the offenders for the impact their conduct had on their community. In this case the defendants have been found guilty of the lowest level offense in New York's Penal Law. Their offense, at the most basic level, constituted going to a community event to vigorously make their beliefs known. They did it in a way that was abusive and obscene, but they did not threaten violence, make physical contact with anyone, or endanger anyone's welfare. They are clearly informed on many significant issues facing our community, and I truly believe that at the time of the incident they believed their actions were legal.
Though defendants were initially also charged with Endangering the Welfare of a Child under Penal Law § 260.10, the People consented to the dismissal of those charges prior to the cases being set down for trial.
Although ignorance of the law is not a defense to a conviction, it is a mitigating factor to be considered for sentencing purposes. Insofar as this decision hopefully clarifies the line between protected speech and disorderly conduct for the defendants, I anticipate that they will not have issues like this in the future, and punishment would serve no deterrent purpose. To the extent that their conduct impacted the community, though it was significant regarding the event they disrupted, the overall impact on the community is minimal. For those reasons I sentence each defendant to time served in lieu of a fine or incarceration, along with the applicable state-mandated surcharge.
Conclusion
Though the formal part of this decision is over, it is always a goal of the criminal justice system to make a positive impact on the parties involved, and the community as a whole. To further that objective, after a sentencing I typically try to say something to a defendant that will encourage them to put the criminal justice system behind them and to get a fresh start. While I am not sure how effective my efforts are, I feel compelled to make the same attempt here.
On August 26, 2021, the defendants raised significant and important issues such as race, equal treatment under the law, citizen involvement in local government, and the accountability of public officials. While reasonable people can take different positions when debating those topics, anyone who is willing to get informed and advocate for change in their community should be encouraged to keep doing so. To that effect, nothing in this decision should be interpreted as seeking to stop the defendants from protesting in any legal manner that they choose to.
What I hope they will consider, though, is the effectiveness of their tactics. When you go to a children's community event and shout obscenities at public officials, it's unlikely that anyone who disagrees with you is going to change their mind. While it may lead to a good reaction from the echo chamber that is social media, it is unlikely advance your ability to be a community leader and effectuate change.
Just because you have the right to do something does not mean that it is the right thing to do. As the defendants are young and have the opportunity to be leaders in our community for a long time, I hope they will seriously reflect on this decision, and consider how they can continue their advocacy in a manner that will leave people more likely to consider their arguments.
The foregoing constitutes the Decision and Order of this court.