ALBANY - A City Court judge has threatened the local district attorney with contempt if he does not follow through on the misdemeanor prosecution of a protester involved in last year’s “Occupy Albany” demonstration.
“When a district attorney exercises his or her discretion in invoking the jurisdiction of the court by pursuing a prosecution, as was done in this case, he or she may not simply walk away from the case and abandon it,” Carter said in a Nov. 26 decision.
Carter said that Soares opened the door to a prosecution and is now bound by Criminal Procedure Law §170. That section permits the court to dismiss a local criminal court accusatory instrument only in a handful of situations, such as when the defendant has immunity, the prosecution is barred by double jeopardy or the defendant’s speedy trial right was violated.
The judge said the June 14 filing of an information began a prosecution and invoked the jurisdiction of the court. Carter also said an assistant district attorney appeared at an arraignment, played an active role in filing superseding information, made a bail recommendation and served the defendant with a notice of readiness. He rejected Soares’ statement that he would “not be participating in motion practice or future proceedings,” and ordered him to go forward at the risk of contempt.
“Should the Office of the District Attorney fail to appear at the next scheduled court date, this Court may be forced to utilize one of the few available options left to it under these circumstances, including, but not limited to, its contempt powers,” Carter wrote.
The case involves defendant Colin Donnaruma, who was charged with disorderly conduct and resisting arrest in connection with a lengthy protest and two-month encampment in a city park opposite the state Capitol. The Occupy Albany demonstration was an outgrowth of the Occupy Wall Street movement in which protesters camped out in lower Manhattan’s Zuccotti Park, advocating for a redistribution of wealth and complaining that the wealthiest 1 percent of the population was dominating the remaining 99 percent. It is alleged that Donnaruma blocked vehicular and pedestrian traffic.
Soares, who at one point described the Albany protesters as “wonderful” people, made clear that he would not prosecute individuals for exercising their free speech rights, even though they were violating a city ordinance by camping out in an urban park. The district attorney said he would only prosecute protesters who interfered with the rights of others. That policy led to a clash with Governor Andrew Cuomo, who had directed the state police to enforce curfew laws in a state-owned portion of the park.
Albany defense attorney Mark Mishler, who is part of a collective of lawyers representing Occupy defendants, moved to dismiss Donnaruma’s case for failure to prosecute, the same defense he had successfully deployed in a prior case before another Albany City Court judge, Thomas Keefe (See Profile).
Mishler said he does not agree with Carter’s decision and will approach Soares’ office to find a suitable way to dispose of the case.
“We do not believe Judge Carter is correct in his interpretation, and perhaps more importantly we do believe there are resolutions that are reasonable and possible in this case,” Mishler said. “Ultimately, we believe there is an important issue of separation of powers here and that a district attorney has the authority to make choices and decisions and exercise discretion, which is what was done here and should be upheld as the right of the prosecutor.”
Carter’s decision conflicts with a ruling by Keefe several months ago where, in People v. 88 Occupy Albany Individuals, the court dismissed charges in 88 cases Soares declined to prosecute.
“The District Attorney is charged with the responsibility to conduct all prosecutions for crimes and offenses in the county in which he is elected and enjoys broad discretion over who, what and when to prosecute,” Keefe wrote in March. “Absent a clear abuse of discretion, which is not indicated here, this Court’s only recourse is to dismiss the Informations.”
Assistant District Attorney Shannon Corbitt argued the Donnaruma case for the prosecution.
Christopher Horn, special counsel to Soares, said the office will be represented “at all scheduled court dates as we have appeared at all prior scheduled court dates. There was never any question on that point.”
@|John Caher can be contacted at firstname.lastname@example.org.