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People v. Cohen

Criminal Court of the City of New York, New York County
Feb 7, 2005
2005 N.Y. Slip Op. 50128 (N.Y. Crim. Ct. 2005)

Opinion

2004NY064128.

Decided February 7, 2005.


The defendant Julia Cohen, charged with three counts of Disorderly Conduct [two counts of PL § 240.20(5) and one count of PL § 240.20(6)] and one count of violating New York City Administrative Code § 10-110 (Parading without a permit), moves for an order dismissing the accusatory instrument (1) in the interest of justice pursuant to CPL § 170.40 and (2) on grounds of facial insufficiency pursuant to CPL §§ 100.45 and 170.35. In addition, the defendant moves to dismiss the charge of AC § 10-110 on the grounds that it is unconstitutional. For the reasons contained herein the defendant's motion is granted to the extent of dismissing the charges of AC § 10-110 and PL § 240.20(6) on the grounds of facial insufficiency. In all other respects, the defendant's motion is denied.

The motion arises from the following findings of fact and procedural history. The defendant was arrested on August 27, 2004 in connection with her alleged participation in a "Critical Mass" bicycle event on the eve of last summer's Republican National Convention in New York City. "Critical Mass" is a monthly event where bicyclists spontaneously come together and ride through the public streets and thoroughfares of New York City. Posted on its web site is that "Critical Mass is a movement and not an organization and that no two riders participate for exactly the same reason". On August 27, 2004 part of "Critical Mass" occurred at the intersection of West 34th Street and Seventh Avenue, in close proximity to Madison Square Garden the site of the Republican National Convention.

At the time of her arrest, the defendant was issued a Desk Appearance (DAT) ticket and directed to appear in New York City Criminal Court (New York County) on September 13, 2004. The defendant appeared pursuant to the DAT, at which time the People filed an accusatory instrument charging the defendant with two counts of PL § 240.20(5) (Disorderly Conduct — intentional/and or reckless obstruction of vehicular or pedestrian traffic), one count of PL § 240.20(6) (Disorderly Conduct — refusal to comply with a lawful order to disperse) and AC § 10-110 (Parading without a Parade). The factual allegations in the accusatory instrument read as follows:

Deponent states that he observed defendant on a bicycle in the street amongst numerous other people also on bicycles in the street at the above location and observed pedestrians and vehicles attempt to pass her and observed them unable to pass because of defendant's location in the street. Deponent further states that defendant was told to move out of the street and defendant refused to move.

Facial Insufficiency

We will first address that portion of defendant's motion which seeks dismissal of the underlying charges on grounds of facial insufficiency pursuant to CPL §§ 100.40 and 170.30. It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v. Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must comport with three (3) requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to C.P.L. § 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charges in the information. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence judgment and experience that it is reasonable likely that such offense was committed. See CPL 70.10(2), People v. Dumas, 68 NY2d 729; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See C.P.L. § 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v. McDermott, 160 Misc 2d. 769 (Dist.Ct., Nassau Co., 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See C.P.L. § 70.10(1)).

We will now examine the sufficiency of each of the charges in the underlying accusatory instrument. PL § 240.20(5) states that a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic. In order to establish a prima facie case of this offense an accusatory instrument must establish (1) that a defendant was observed (2) obstructing either pedestrian or vehicular traffic and (3) that the defendant engaged in this conduct with intent to cause public inconvenience, alarm or annoyance or that he recklessly created a risk of doing so. In pertinent part, the factual allegations in the instant accusatory instrument set forth that the deponent/arresting officer (P.O. Steven Choinski) observed the defendant on a bicycle in the street amongst numerous other people also on bicycles in the street (at West 34th street and 7th Avenue) and observed pedestrians and vehicles attempt to pass her and observed them unable to pass because of defendant's location in the street. In addition, the accusatory instrument sets forth that the defendant's conduct was done with the intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof. Accordingly, the instant accusatory instrument establishes a prima facie case of PL § 240.20(5). Whether in fact, the defendant's conduct, as described in the accusatory instrument, rises to the level of an intentional causing of public inconvenience by virtue of having obstructed vehicular or pedestrian traffic is an issue for trial and cannot be appropriately determined within the context of a facial sufficiency motion. At the pleading level, all that is required in order to establish a prima facie case of PL § 240.20(5) (Disorderly Orderly Conduct — intentional blocking of pedestrian and vehicular traffic) are allegations setting forth that a defendant was observed engaging conduct which would give rise to a reasonable belief that the defendant committed the offense. The non-hearsay element is supplied by the fact that the deponent/arresting officer observed the conduct and signed the accusatory instrument.

The defendant has also been charged with PL § 240.20(6) (intentional congregation with other persons in a public place and refusal to comply with a lawful order to disperse). In pertinent part, the factual allegations in the complaint read as follows: Deponent further states that defendant was told to move out of the street and defendant refused to move. The defendant contends that this statement constitutes hearsay because there is no allegation as to who gave the order to disperse. This court agrees. The elements of the PL § 240.20(6) are (1) intentionally/and or recklessly (2) being part of a congregation and (3) refusal to comply (4) with a lawful order to disperse. Inherent in the term lawful order is that the order was given by a police officer or an authorized peace officer. In the present case, the accusatory instrument does not set forth who gave an order or that the order came from a police/peace officer. The allegations simply state that the defendant was told to move and it is feasible that this request could have come from a pedestrian or motorist. Accordingly, the element of a lawful order to disperse is not established by non-hearsay allegations and the accusatory instrument is facially insufficient as to PL § 240.20(6).

In People v. Carcel, 3 NY2d 327, the Court of Appeals defined the term "congregating" as a coming together of persons or a crowd; the term "congregates with others" as used in the statute, requires at the very least three persons at a given place and time.

The defendant has also challenged the sufficiency of the charge of Parading Without a Permit. AC § 10-110 states: "A procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner." An accusatory instrument which charges a violation of this statute must set forth the elements of this offense which are: (1) that an individual was part of a parade, procession or race, (2) that such parade procession or race took place upon a public street or roadway, and (3) that the individual did not have a permit issued by the police commissioner to participate in such parade, procession or race. In pertinent part, the instant accusatory instrument sets forth that the deponent observed the defendant on a bicycle in the street amongst numerous other people also on bicycles at the intersection of West 34th Street and 7th Avenue. Because the accusatory instrument does not set forth that the defendant did not have a parade permit at the time that she engaged in the conduct described in the factual allegations, the accusatory instrument fails to establish a key element of the statute and therefore fails to establish a prima facie case of a violation of AC § 10-110. Accordingly, the defendant's motion to dismiss the charge of AC § 10-110 on grounds of facial insufficiency is granted.

Dismissal in the Furtherance of Justice

The court will now examine whether the remaining charge of PL § 240.20(5) (obstruction of vehicular and pedestrian traffic) should be dismissed in the interest of justice. CPL § 170.40 provides for the dismissal of an information in the interest of justice when the court in its discretion determines that there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument would result in injustice." This section parallels CPL § 210.40 that applies identical provisions to dismissal of indictments. Essentially, the section represents the codification of the criteria for dismissal as provided in People v. Clayton, 41 AD2d 204 (2nd Dept., 1973). CPL § 170.40 enumerates ten criteria that must be considered by the court in reaching it decision. The court must evaluate these criteria vis a vis the interests of the defendant, the complainant, the community and the criminal justice system in order to achieve a result that is a "sensitive balance between the individual and the state". People v. Clayton, 41 AD2d 204, 208 (2nd Dept., 1973). While all ten criteria should be evaluated, the court need not articulate findings with respect to each and every one of them. People v. Rickert, 58 NY2d 122 (1983). Rather, such a dismissal depends upon the justice that would be served by such a dismissal. The Court will now evaluate the enumerated criteria of CPL § 170.40 with respect to their applicability to the facts of this case. As they pertain to the instant case, these factors include (1) the history and character of the defendant, (2) serious conduct of law enforcement personnel in the investigation arrest and prosecution of the defendant, (3) the purpose of imposing upon the defendant a sentence authorized for the offense, (4) the impact of a dismissal on the safety or welfare of the community and, (5) the impact of a dismissal upon the confidence of the public in the criminal justice system.

The defendant is an attorney in good standing. She is a partner in a law firm and has numerous professional qualifications. The defendant claims that she attended the Critical Mass ride in the capacity of a volunteer Legal Observer with the National Lawyers Guild. The defendant argues that she was clearly identified as a Legal Observer because she was wearing a bright green baseball hat, one that defendant claims Legal Observers have worn for years and which law enforcement personnel in New York City have recognized as such. The defendant claims that at the Critical Mass ride on the day of her arrest, law enforcement personnel engaged in erratic and confusing behavior. The defendant claims that for the initial portion of the fourteen (14) mile Critical Mass ride, the police apparently were accompanying the bike riders, leading the ride with police vehicles. The defendant further claims that at some point, at approximately West 34th Street and 7th avenue, the police changed tactics and began arresting the bike riders. The defendant predicates her motion to dismiss the charges in the furtherance of justice on these claims. In addition, the defendant contends that the public would view dismissal of the charges in a positive light.

On balance, this Court concludes that the defendant's motion to dismiss the remaining viable charge of PL § 240.20(5) (obstruction of vehicular and pedestrian traffic) in the furtherance of justice pursuant to CPL § 170.40 should be denied. The defendant has failed to demonstrate a compelling reason why her motion should be granted. While the Court notes that the defendant is an attorney in good standing and that she has attended Critical Mass bike ride events as a Legal Observer, these factors in and of themselves, do not establish a compelling reason why the remaining charge of PL § 240.20(5) should be dismissed. The defendant has generally alleged that the she attended the Critical Mass bicycle in the capacity of an observer as opposed to a participant. Even assuming that this was not an issue for trial, the fact that she attended as an observer does not necessarily exonerate her of this offense as observation and participation are not mutually exclusive. Lastly, the defendant's claim that the public would view dismissal of the charges in a favorable light is speculative at best.

Constitutionality of AC § 10-110

The defendant has also moved to dismiss the charge of AC § 10-110 on the grounds that it is unconstitutional. While we have already dismissed this charge on grounds of facial insufficiency, the defendant should note that this Court recently upheld the constitutionality of AC § 10-110, under both the New York State and the United States constitutions (See People v. James, ___ Misc 3d ___, 2005 NY Slip Op 25027).

In summary, that portion of defendant's motion seeking dismissal of the charges of PL § 240.20(6) and AC § 10-110 on grounds of facial insufficiency is granted. That portion of defendant's motion seeking dismissal of PL § 240.20(5) on grounds of facial sufficiency is denied. That portion of defendant's motion seeking dismissal of the remaining charge of PL § 240.20(5) (obstruction of vehicular and pedestrian traffic) in the furtherance of justice pursuant to CPL 170.40 is denied.

This shall constitute the final decision and order of this court.


Summaries of

People v. Cohen

Criminal Court of the City of New York, New York County
Feb 7, 2005
2005 N.Y. Slip Op. 50128 (N.Y. Crim. Ct. 2005)
Case details for

People v. Cohen

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, v. JULIA COHEN, Defendant

Court:Criminal Court of the City of New York, New York County

Date published: Feb 7, 2005

Citations

2005 N.Y. Slip Op. 50128 (N.Y. Crim. Ct. 2005)