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In Court
In New York demonstrator arrests end up in one of three courts: 346 Broadway (summons cases), 100 Centre St. (all felony and most DAT cases) or the Midtown Community Court (minor arrests concerning demonstrations in the Times Square area).
Topics Below
* 346 Broadway (at Leonard St.), also known as the Summons Part
* 100 Centre St. (at Leonard St.)
* Midtown Community Court (314 W. 54th St.)
The following are the main in-court events demonstrators need to know about.
* Motions to dismisss
* The ACD
* Trials
* Guilty Pleas
* Sentence
* Sealing
* Summary of the Judicial Process
346 Broadway (at Leonard St.), also known as the Summons Part
This court gives assembly line service to Manhattan's minor offenders. At their first appearance defendants turn in their summonses at the clerk's office and directed to a courtroom in which to wait for the judge. The courtroom is run, rather strictly, by court officers. There is no prosecutor present (but the judge is often prosecution oriented).
Defendants in the Summons Part are asked whether they wish to plead guilty or go to trial. (See below concerning court strategy). Those wishing to go to trial are given a new court date. (The arresting police officers are not notified to appear until after the arrestee appears in court on the next date and repeats his or her desire to go to trial.) Persons pleading guilty are fined a minimum of $45 (the "manadory" surcharge) and given time to pay if necessary. The arrestee should try obtain a dismissal or an ACD.
100 Centre St. (at Leonard St.)
This is the main Manhattan criminal courthouse which means, among other things, that all visitors go through a long metal detector line before entering the building. The DAT part is currently on the south end of the 1st floor. Upon checking in the defendant will be informed whether or not the charges are "ready"; if they are not, the defendant is told to go home and wait for a notice in the mail. If the charges are ready, the arrestee will be instructed to wait in the courtroom. If she or he has an attorney the attorney will obtain the written charges; if not, a court-appointed attorney will eventually introduce him or herself as the attorney. At the first appearance one should request a dismissal or an ACD, and then decide whether to plead guilty or to proceed towards a trial (pleading not-guilty). Proceeding towards trial does not necessarily mean there will be a trial -- for example, a dismissal, an ACD or a better plea offer may become available on a later court date. See below for details regarding court strategy.
Midtown Community Court (314 W. 54th St.)
This new courtroom was partially funded by the Times Square businesses in the hope that it could accelerate the judicial process against those who are perceived as a blight on the area (i.e. unlicensed vendors, urinators, etc.) Recently someone decided that demonstrators fit the category. However, despite the intentions, cases which are not resolved at the first appearance are simply transferred to 100 Centre St. and end up taking at least as long as any other case. As advised above, when the case is called, the defendant should try for a dismissal or an ACD, failing which he or she will decide between a plea offer or the path towards trial ("not-guilty").
Motions to dismiss
A dismissal is the termination of the defendant's charges without any finding a guilt.
One primary basis for requesting the dismissal of the charges is that the charging document is defective. In the Summons Part, this most often involves the police officer's failure to sign the summons or, on a disorderly conduct summons, to allege the defendant's intention to block pedestrians or vehicular traffic. (see People v. Tarka) In non-Summons Part cases, motions to dismiss based on a defective complaint usually involve facial insufficiency, or the prosecutor's failure to allege sufficient facts to satisfy the elements of the offense charged. In the summons part the judge should inspect the summons for sufficiency, in the DAT parts the attorney should do so.
The second primary basis for a dismissal is justification--that the purpose of the arrestee's act was to prevent a greater harm. This defense is part of the New York State Law Penal Law (Section 35.05).
A third, related, ground is "the interests of justice"--that the issue related to the demonstration or some other fact related to the case (sometimes the police officer's brutality in the arrest) demands that the case be dismissed. See sample of written motion to dismiss in the interests of justice.
While motions to dismiss may not often be granted, they should be made if there is a grounds.
The ACD
ACD stands for Adjournment in Contemplation of Dismissal. An agreement to an ACD is almost as good as an outright dismissal. The case is adjourned for six months, after which it is dismissed and sealed. There is no admission of guilt or finding of any guilt, and the defendant does not have to appear in court on the 6-months date.
Technically a judge can vacate an ACD during the 6-month period if the ACD "no longer serves the interests of justice". However this rarely happens. What happens if the demonstrator is arrested again during the six-month period? Almost always, nothing. The main reason for this is that the judge in the subsequent arrest case will not be aware of the ACD (unless the demonstrator was fingerprinted for both arrests, in which case the judge will have a current record which will the prior case; this would be unusual for demonstration arrests). Secondly, even if the judge does know about the ACD case, he or she would be unlikely to reopen it because of another arrest (why make more work for the court system?). Instead the judge probably just will not agree to another ACD. And even in the extremely unlikely event that a judge did revoke an ACD, the demonstrator would only be in the same position she or he was in when the ACD was granted, which is that there has been no guilty plea and there can then be a plea negotiation or the case can proceed to trial. In short, very little is risked with an ACD.
Increasingly prosecutors will agree to an ACD only if it is conditioned on the defendant serving "community service" (i.e. cleaning up litter for the Parks Department), usually for 1 or 2 days. Agreeing to this condition is not an admission of guilt but it is obviously inconvenient.
There is one situation in which an ACD should not be agreed to and that is when the defendant intends to bring a civil rights lawsuit based on "malicious prosecution" or "false arrest". Appellate courts have held that the defendant's agreement to an ACD gives sufficient legitamacy to the prosecution to bar a subsequent suit charging malicious prosecution, and have implied the same may be true with respect to false arrest. If you are considering a lawsuit on these grounds you should consult with an attorney before agreeing to an ACD. An ACD does not preclude other civil suit claims such as assault.
Trials
If a motion to dismiss has been denied, and a request for an ACD has also been denied, the case will proceed towards a guilty plea or a trial. All persons have the right to a trial. In the Summons Part that trial will usually take place, if the officer chooses to appear, on the second or third appearance; in other courts it will take even longer.
The right to a trial includes the rights to a speedy trial, to make motions for necessary discovery material, to raise all appropriate defenses, to call witnesses and other rights. Since it is not possible to discuss these rights in this writing, an arrestee who wishes to fully exercise all rights should consult with an attorney or request one from the court.
The basic structure of a trial is that the police witness(es) testifies first, and the defendant, if he or she chooses to testify, and his or her witnesses, if any, testify second. The length of a trial varies depending on which court it is in, the number of witnesses there are, and the complexity of the case. Most trials in the Summons Part take only the time it takes a police officer and the demonstrator to tell the judge what happened -- usually a matter of minutes. The average non-Summons Part case takes one or two days but a complicated case can take much longer.
The demonstrator defendant, as any other defendant, has a right to a trial by jury for any felony charge or a Class A misdemeanor, such as Resisting Arrest. Since most demonstrators are charged with minor charges, their cases are tried before a judge, not a jury. The judge will usually not be very interested in the reason for the demonstration (but see the Refuse & Resist Homepage concerning producing a political trial) and will be under pressure from her superiors to rush through all cases as quickly as possible.
Often the demonstrator defendant will not be permitted to raise the political issues involved in the demonstration at the trial. While the issues might be relevant if there is a "necessity" or "interests of justice" defense, if not, the judge will limit the issues to whether or not the defendant was disorderly or trespassed, etc.
In all trials, the relevant legal standard for guilt or non-guilt is whether the charges against the defendant have been proven beyond a reasonable doubt. If the trier of fact (as stated above, usually a judge) finds the charges have not been proved, the charges will be dismissed and sealed. If the judge finds the charges proven, he or she must sentence the defendant.
Since most demonstration cases do not go to trial there is no typical demonstration trial. What can be anticipated about trials however is that a police officer will testify that the demonstrators trespassed or were disorderly and failed to desist when the police asked them to. At that point in the trial, unless a demonstrator has strong evidence that the officer is lying or an even stronger justification or other defense, a judge is likely to find the demonstrator guilty. For one thing, nearly anything can be considered disorderly conduct; for another thing, judges are reluctant to decide that a police officer has lied, especially when the officer is standing in front of the judge in court. Thus, success at trial may depend on the ability of the defendant, or the defendant's attorney to overcome or avoid these two judicial tendencies.
Guilt after trial subjects the arrestee to the potential penalties mentioned below (Sentence). Demonstrators who decide to go to trial and are found guity generally receive lenient sentences (i.e. a conditional discharge) but at minimum are assessed the "Mandatory Surcharge" ($45).
Guilty pleas
If the judge has denied a motion to dismiss and is not inclined to grant an ACD in the case, the demonstrator defendant will have to decide whether to plead guilty or proceed towards trial. If the defendant is leaning towards pleading guilty, the defendant or the defendant's lawyer should always try to find out from the judge what consideration the court will give the defendant for pleading guilty. Since the defendant will be giving up the constitutional right of forcing the prosecution or police to prove guilt beyond a reasonable doubt (which takes up the judge's time), the defendant will be in a position to get a break for giving the court a break. If the defendant is charged with a misdemeanor, usually the judge (and the prosecutor if one is present) will permit the charges to be reduced to a violation (normally disorderly conduct) and offer a favorable sentence to encourage a plea of guilty. As is stated above, a finding of guilt to a violation is a non-criminal adjudication, and is about as serious as a moving traffic violation. If the charge is already only a violation, there is no lower charge, so the court should offer a low fine or no fine (other than the mandatory surcharge).
If the defendant understands the court's offer and wants to accept it, he or she can plead guilty. This is usually accomplished by simply communicating that fact to the judge. Sometimes, the judge may ask the defendant to explain what she or he did for which she or he is pleading guilty.
Sentence
After a finding of guilt, whether after trial or plea, the court must set a sentence. The judge's options include incarceration, probation, conditional discharge, unconditional discharge, a fine, or a combination of these options. There is a mandatory court fee of $45 against all persons found guilty of anything, unless the defendant is determined to be indigent.
In demonstration cases the sentence most often imposed is a conditional discharge with a fine of $55 ($45 of which is for the mandatory surcharge) or so. A conditional discharge is a one-year period during which the case is not sealed and, during which, theoretically, a future violation of the law could constitute the grounds for a resentencing (but almost never does). Conditional discharges are sometimes called an unsupervised probation.
Defendants can agree (but cannot be forced) to perform community service as an alternative to other sentences, and increasingly judges and prosecutors are asking for that agreement. Usually the service involves 1 or 2 days of picking up litter for the Parks Department or the Transit Authority, but the judge and the prosecutor will occasionally agree to service with charitable organizations such as the Gay Men's Health Crisis.
Sealing
After all dispositions of a case which are "favorable to the defendant" the case will be sealed. "Favorable to the defendant" includes dismissal and, importantly, non-criminal findings of guilt (i.e. violations such as disorderly conduct and simple trespass). Sealing involves the physical and electonic elimination of the case. The court papers are physically stapled shut and stored in a designated area. The New York State computer entry for the case, if there is one (there is one if the defendant was fingerprinted upon arrest), is eliminated, and the defendant's original fingerprint card, if there is one, is returned to the defendant (the copies of the card are destroyed).
When the court orders a conditional discharge as the sentence, the sealing takes place after the one-year period. When a fine is ordered, and on other occasions, the judge may postpone sealing for short period of time.
Sealing, like any other bureaucratic process, is subject to the mistakes of those who participate in the process. If the sealing is sufficiently important, defendants (or their attorneys) should investigate whether the sealing took effect. Several months after the sealing was supposed to have occurred, the defendant can go to police headquarter (in Manhattan, at One Police Plaza, on Chambers St., east of Centre St.), and have a fingerprint run done. If the sealing was properly done, the fingerprint search will not "discover" the arrest in question.
Sealing does not hide the particular arrest from everyone. Government employers and certain private employers, such as foster care agencies, have access to sealed records.
Summary of the Judicial Process
For non-felony charges the defendant should attempt to have the case dismissed, then attempt to get an ACD and, failing these, determine whether or not to go to trial. If a plea is given the defendant should drive a hard bargain. If a trial is had, even if is lost, most demonstrators will not be be harshly sentenced.
If there are felony charges (such as Assault on a Police Officer or Riot), the court will always assign an attorney and the charges must be taken seriously.
DEMONSTRATOR'S MANUAL
