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Alisa Gragert, a 17-year-old who protested the war in Iraq by lying on a Fifth Avenue sidewalk, has been arrested twice for her one-time transgression, and that is punishment enough, according to a Manhattan judge. Gragert’s first arrest came when she refused to get up on that day in April as she lay in front of the midtown offices of the Carlyle Group, a private investment firm. Her second happened in July, when she was cuffed at Manhattan’s criminal courthouse and chained to a bench, with her mother looking on, because court officials mistakenly believed she had skipped a court appearance two days earlier. In dismissing misdemeanor and violation charges against the teen earlier this month, Criminal Court Judge Matthew F. Cooper granted a motion under People v. Clayton, 41 AD2d 204, a rare outcome that the judge said was often looked down upon by appellate courts. Nonetheless, Judge Cooper said Gragert and the circumstances of her arrest were unique enough to warrant a reprieve “in the interest of justice.” He said the teen has such an impressive background — including an academic scholarship to college and a commitment to community work — that she should not face further punishment for her actions. The judge also stressed her age and said the harm she had caused was, “in the scheme of things, decidedly minor.” “It is difficult to envision New Yorkers, renown for their ability to cope in the face of adversity, being particularly disturbed by encountering the defendant lying on the sidewalk and having to sidestep her,” Judge Cooper wrote in People v. Gragert, 024683/03. “What with street vendors, people distributing leaflets, newspaper vending machines, food carts, coffee wagons, sidewalk seating, scaffolding, construction barriers, pavement excavations and groups of smokers in front of smoke-free buildings, one hardly expects to walk along a busy midtown street with an uninterrupted stride.” Another compelling factor in his decision, the judge said, was a bit of sloppy handwriting that led court officials to believe Gragert had ignored her first court date on July 23, when it was actually scheduled for July 25. A bench warrant was issued for Gragert’s arrest, and she was forced to suffer “the indignity and trauma of being wrongfully placed in custody” until the error was discovered and the warrant expunged. Gragert was facing one count of obstruction of governmental administration — a charge the judge called “questionable” — and two counts of disorderly conduct. The first is punishable by up to a year in prison and the second by just 15 days. The judge said it was “inconceivable” that Gragert would go to prison even if convicted, since she would have been adjudicated as a youthful offender. INTEREST OF JUSTICE Judge Cooper noted that a judge’s “interest of justice” powers are to be used sparingly, adding that there are few cases in which Clayton motions, as they are more commonly known, are granted. And in those rare instances, the judge said, it seems “appellate courts have more often than not seen fit to reverse.” But this case, the judge said, was sufficiently different from People v. Arbeiter, 169 Misc. 2d 771, a 1996 Appellate Term, 1st Department, ruling that reversed a trial court’s decision to grant a Clayton motion. In Arbeiter, the appeals court reinstated disorderly conduct charges against members of the Irish Lesbian and Gay Organization for disrupting the annual St. Patrick’s Day parade, holding that sincere beliefs were “not an excuse for lawless conduct.” Judge Cooper said Gragert could not be expected to exercise the same judgment as an adult, and took her word that she would learn from her experience. He added that her conduct did not cause any damage or injury, and could be excused under People v. Wingard, 33 NY2d 192 (1973), which discusses youthful offenders. “Unlike many nations, we pride ourselves on our willingness to hear the voices of dissent,” the judge concluded. “Protest, in its many forms, has a hallowed place in our democracy and is very much a part of our American spirit.” David Stern of Rothman, Schneider, Soloway & Stern, who represented Gragert, commended the judge’s ruling and said prosecuting Gragert in the first place was “a foolish use of resources.” Assistant District Attorney Sean Sullivan prosecuted the case. A spokeswoman for Manhattan District Attorney Robert M. Morgenthau said his office was reviewing the decision and declined further comment.

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