Opinion
CR-3454-19
12-31-2019
The PEOPLE of the State of New York, Plaintiff, v. Laurie SANDOW, Defendant.
Ryan R. Sharpe, Esq., Assistant Public Defender, Dutchess County Public Defender, 45 Market Street, Poughkeepsie, NY 12601, Attorney for the defendant Nicholas J. Gildard, Esq., Assistant Corporation Counsel, Corporation Counsel's Office, 62 Civic Center Plaza, Poughkeepsie, NY 12601
Ryan R. Sharpe, Esq., Assistant Public Defender, Dutchess County Public Defender, 45 Market Street, Poughkeepsie, NY 12601, Attorney for the defendant
Nicholas J. Gildard, Esq., Assistant Corporation Counsel, Corporation Counsel's Office, 62 Civic Center Plaza, Poughkeepsie, NY 12601
Frank M. Mora, J. Defendant has moved by way of Notice of Motion, dated September 3, 2019, seeking to dismiss the information charging her with disorderly conduct in violation of Penal Law § 240.20(4), in the interests of justice pursuant to C.P.L. §§ 170.30 (1)(g) and 170.40(1), and other forms of relief. Defendant's motion is supported by the affirmation of Ryan R. Sharpe, Esq., Assistant Public Defender, dated September 3, 2019, together with Exhibits A-C. The People have responded to defendant's motion by filing an Affirmation in Answer to Defendant's Notice of Motion, of Nicholas J. Gildard, Esq., Assistant Corporation Counsel, dated September 20, 2019, together with two Exhibits ("Rules of Conduct and Procedure: By-Laws of the Common Council of the City of Poughkeepsie for the year 2019," and a video of the incident). Defendant has filed the reply affirmation of Ryan R. Sharpe, Esq., Assistant Public Defender, dated September 27, 2019, in further support of her motion to dismiss and in reply to the People's opposition. Now, upon reading the motion, the supporting affirmation, reviewing the accompanying Exhibits, and the People's opposition, and due deliberation having been held thereon, this Court now determines the motion as follows:
1) Defendant moves to dismiss the information in the interests of justice pursuant to C.P.L. §§ 170.30 and 170.40(1) on the basis that (1) there is a lack of evidence to support the defendant's guilt; (2) the offense alleged is not serious; (3) the impact of a dismissal will be negligible on the safety and welfare of the community; (4) there was no harm done to the Common Council or the members of the public; and (5) the defendant has no prior criminal history or arrests.
In opposition, the People argue that (1) the charge is serious in that it is punishable by up to fifteen (15) days in jail; (2) that there was harm done as a result of the defendant's actions in that the meeting was disrupted, halted, and adjourned for a period of time because the defendant refused to leave; (3) the People dispute the lack of evidence to support defendant's guilt, highlighting that since the defendant refused to cease speaking despite several requests by the Council Chair, it demonstrates that she intended to cause public inconvenience; (4) the interests of justice would not be served with a dismissal because it would undermine an orderly and efficient meeting, particularly here where defendant was instructed by the Council Chair to stop speaking but repeatedly refused; and (5) the People contend that dismissal would not strengthen the confidence of the public, but would erode away the protections of both the council as a government body and the public at large by rendering rules of procedure meaningless and invite others to disrupt governmental meetings with no consequence. Criminal Procedure Law §§ 210.40, 170.30(1)(g), and 170.40(1) and People v. Clayton , 41 A.D.2d 204, 342 N.Y.S.2d 106 (1973), give a Court the authority to dismiss an information in the interests of justice even though there may be no basis for dismissal as a matter of law, but where it should be dismissed as a matter of judicial discretion by the existence of some other compelling factor, consideration, or circumstance which clearly demonstrates that the conviction or prosecution of the defendant would constitute or result in injustice. C.P.L.§§ 210.40, 170.30(1)(g) and 170.40(1). Although the decision to dismiss an information lies within the discretion of the trial judge, that discretion is not absolute or uncontrolled. People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402 (1973). The statute states that a court must find some compelling factor, and where a lower court fails to state such compelling factors, dismissal is not warranted. Among the factors to consider both individually and collectively are the following:
a) The seriousness and circumstances of the offense;
b) The extent of harm caused by the offense;
c) The evidence of guilt, whether admissible or inadmissible at trial;
d) The history, character, and condition of the defendant;
e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest, and prosecution of the defendant;
f) The purpose and effect of imposing upon the defendant a sentence authorized for the offense;
g) The impact of a dismissal on the safety or welfare of the community;
h) The impact of a dismissal upon the confidence of the public in the criminal justice system;
i) Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
j) Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
C.P.L.§ 170.40 (1)(a-j) ; People v. Rickert , 58 N.Y.2d 122, 459 N.Y.S.2d 734, 446 N.E.2d 419 (1983) ; People v. Colon , 86 N.Y.2d 861, 635 N.Y.S.2d 165, 658 N.E.2d 1038 (1995).
In deciding a Clayton Motion, it is not necessary to engage in a point by point catechistic discussion of all the factors, but instead, the court should consider the ten (10) factors outlined above both individually and collectively in judging and balancing between the interests of the individual and those of the state. People v. Gragert , 1 Misc. 3d 646, 765 N.Y.S.2d 471 (New York City 2003).
There are a very small number of reported cases where motions to dismiss in the interests of justice have been granted. Weighing each of the factors collectively as outlined in the statute, there are several compelling factors before this Court which demonstrate that the conviction or prosecution of the defendant would constitute or result in injustice which favor dismissal of the matter in the interests of justice. The factors and circumstances presented here make this case one of those "rare" and "unusual" cases that "cries out for fundamental justice beyond the confines of conventional considerations." People v. Gragert , 1 Misc. 3d 646, 765 N.Y.S.2d 471 (New York City 2003) citing People v. Insignares , 109 A.D.2d 221, 234, 491 N.Y.S.2d 166 (1st Dept. 1985)citing People v. Belge , 41 N.Y.2d 60, 62-63, 390 N.Y.S.2d 867, 359 N.E.2d 377 (1976) ; also see People v. Arbeiter , 169 Misc. 2d 771, 650 N.Y.S.2d 915 (1st Dept. 1996).
A. The Disorderly Conduct Charge:
When this Court assesses the first three (3) factors set forth in C.P.L. § 170.40(1)(a-c) : seriousness and circumstances of the offense, the lack of harm caused by the offense, and the evidence of guilt, it finds compelling factors supporting dismissal in the interests of justice. C.P.L. § 170.40(1)(a-c) .
Defendant was charged with disorderly conduct in violation of Penal Law § 240.20(4), a violation. A person is guilty of disorderly conduct when "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: without lawful authority, he disturbs any lawful assembly or meeting of persons ." Penal Law § 240.20(4) .
The People allege that the defendant committed disorderly conduct as follows:
[D]efendant did intend to cause public inconvenience by disturbing a City of Poughkeepsie Common Council meeting, a lawful assembly. The defendant was advised several times by your deponent, who is the Council at Large [sic ] and Chair of the City of Poughkeepsie Common Council, to cease speaking during a public speaking portion of the public meeting. The defendant, without lawful authority, was disruptive and continued to speak in a loud voice over your deponent and other members of the Common Council. This continued, prolonged act, caused the meeting to stop and caused public inconvenience. The defendant was then asked several times to leave the building, which she refused to do before she had to be escorted out by the police.
Subdivision four (4) of the disorderly conduct statute is designed to, "protect the right to assembly, and thus interdicts a person, with the requisite culpable mental state and "[w]ithout lawful authority," from disturbing a "lawful assembly or meeting of persons.’ " People v. Malone , 156 A.D. 10, 13, 141 N.Y.S. 149 (2d Dept. 1913) ; People v. Albra, 13 Misc. 3d 64, 827 N.Y.S.2d 424 (App. Term, 2d Dept. 2006) (defendant convicted of disorderly conduct under P.L. § 240.20(4) where defendant incessantly raised non-agenda items, and antagonized the town board provoking them to engage in heated discussions thereby disrupting the meeting, when the town board meeting rules only permitted speakers to discuss agenda items); People v. Spiegel , 181 Misc. 2d 48, 693 N.Y.S.2d 393 (New York City 1999) (releasing crickets at an auction causing people to scream, climb onto chairs, run to exits, and suspend the proceedings, is a disturbance of lawful assembly); People v. McDaniel , 172 Misc. 2d 854, 661 N.Y.S.2d 904 (App. Term, 1st Dept. 1997) (where defendant was convicted of disorderly conduct when he and others ascended an altar, spoke loudly in an effort to drown out the liturgy, and approached and crowded parishioners in protest of an anticipated service); see, People v. Mejia, 62 Misc. 3d 1205(A), 2018 WL 6929194 (New York City 2018).
When a public body permits the public to speak at its meeting, it cannot then silence a speaker if a member, or even every member of that body, dislikes the content of that speech. While the government has a significant interest in controlling its agenda and preventing the disruption of public meetings of governmental bodies [ People v. Albra , 13 Misc. 3d 64, 827 N.Y.S.2d 424 (App. Term, 2d Dept. 2006) ], speech at these public governmental meetings for discussion of matters involving public concern is entitled to normal First Amendment protections against "general restriction and ad hoc parliamentary rulings by presiding officials." People v. Albra, supra at 429-30, 827 N.Y.S.2d 424. In other words, even though certain modes of expression may be annoying to others, it does not require that a person forfeit his rights under the First Amendment to make those expressions. People v. Dupont , 107 A.D.2d 247, 255-56, 486 N.Y.S.2d 169 (1st Dept. 1985) ; see People v. Albra , supra .
Specifically, Article I, Section 8 of the New York State Constitution, provides that, "Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press ." NY STATE CONSTITUTION, ARTICLE I, Sec. 8. Only a compelling State interest can justify limiting a person's First Amendment freedoms. People v. Dupont , 107 A.D.2d 247, 254, 486 N.Y.S.2d 169 (1st Dept. 1985) citing Cantwell v. Connecticut , 310 U.S. 296, 307, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). A statute, rule, or regulation must be narrowly tailored to further the state's legitimate interest so as not to impede on one's First Amendment rights, otherwise its terms may be found to be unconstitutionally overbroad. Id. The regulation "must be carefully drawn so that the deterrent effect on free speech is no greater than is absolutely necessary to foster the compelling interest necessitating the statute. Id. Accordingly, annoyance of speech does not authorize those in power of public governmental meetings to "abandon restraint, unleash a stream of invective, and cause the target to be arrested." People v. Albra, supra at 429, 827 N.Y.S.2d 424. "[T]he participation in public discussion of public business cannot be confined to one category of interested individuals. To permit one side of a debatable public question to have a monopoly in expressing its views to the government is the antithesis of constitutional guarantees." People v. Albra , supra at 430citing Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n , 429 U.S. 167, 175-76, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) ; see Collinson v. Gott , 895 F.2d 994 (4th Cir. 1990) ; Monteiro v. City of Elizabeth , 436 F.3d 397, 404 (3d Circ. 2006).
Here, assuming arguendo that the allegations in the information are true, the information is facially insufficient pursuant to C.P.L. §§ 100.40, 170.30, and 170.35, and even with the evidence in the motion, nothing supports a charge of disorderly conduct. This, together with defendant's age, lack of criminal history, as well as the decidedly minor extent of harm caused by defendant's alleged actions, together with the circumstances surrounding the alleged offense—which reveal that the City Council failed to apply the Rules of Decorum uniformly making the actions by the government tantamount to suppression of free speech, both of which were followed by punishment of the defendant for speech the government disliked—support dismissal in the interests of justice.
As a preliminary matter, the Common Council for the June 17, 2019 meeting, publicized and distributed a written agenda that provided for public comment on any non-agenda item , to wit: "PUBLIC PARTICIPATION: Three (3) minutes per person up to 45 minutes of public comment on any agenda and non-agenda item . " Emphasis added (Sharpe affirmation, dated September 3, 2019, Exhibit A). The Chairwoman invited Ms. Sandow to the podium along with another gentlemen who wished to take part in the "public participation" portion of the meeting. Ms. Sandow offered to let the gentleman speak before her, and he obliged. When it came to defendant's turn to address the Council, defendant read from a prepared statement, and only after she was addressed by the Chair to speak. Defendant spoke on a non-agenda item, as was permitted by the agenda. When members of the Council expressed their disapproval of the content of the defendant's prepared statement, they took up arms, certain members deemed the speech impermissible, turned off the microphone silencing her speech, had her removed and arrested. In so doing, the Chair and the Council violated innumerable Rules of the Common Council and defendant's right to free speech.
Importantly, the video supplied by the People establishes that the defendant did not storm into the meeting, but rather waited her turn to be invited up to the table to speak before the Common Council. Defendant began to speak from her prepared statement, but when she was less than a minute into reading it and specifically criticized certain members of the Council, she was immediately met with hostility—catalyzed by members of the Council and the Chair who summarily concluded that her speech was not allowed because it constituted "campaigning." Irrespective of same, defendant flatly disclaimed and outright denied that she was campaigning, and proceeded to read from her prepared statement. Aside from the fact that there is nothing in the Rules supplied to this Court that prohibit campaigning remarks, the Rules also provide that, "No Speaker shall be declared out of order, prevented from speaking or barred from attendance at any meeting because of any disagreement with the Speaker's position or view on any matter, because of the Speakers [sic ] identity or because of any disagreement with the content of relevant testimony." Rule VII (A) .
At no point did defendant ask people to vote for a particular person, and even if she had, there is nothing in the Rules that prohibits such remarks.
In her prepared statement, the defendant highlighted Councilmembers Sarah Brannen's and Sarah A. Salem's recent activities and cited specific alleged unethical behavior. Without a vote, but from what appears to be at the direction of Council Chair Ann Finney, Councilmember Matthew McNamara got up and unplugged the microphone in violation of Rule XVII, which provides that, "All meetings of the Common Council shall be recorded by means of a audio and/or video recording device ," thereby effectively silencing defendant's words from being audio recorded and breaching their own mandatory Rules of order and decorum. This "turning-off of the microphones" effectively silenced the entire room from being audio recorded, including all Councilmembers—again in breach of Rule XVII. The video then shows the defendant, who remains seated, continue to calmly speak from her prepared statement into a non-recording microphone. At no point during the silent part of the video does the defendant shake her fists, stand up, or appear threatening. Likewise, the information does not allege such actions by defendant. While the defendant is still seated, the Sergeant-at-Arms stands over her, and at one point defendant is surrounded by the Sergeant-at-Arms, Council Chair Ann Finney, and Councilmember Randall A. Johnson, II. Notwithstanding the fact that she is closely surrounded by three (3) people, one armed with a gun, the defendant remains seated and continues to calmly read from her prepared statement. When the Chair returns to the dais, the Chair is seen on the videotape banging her gavel, but her mouth does not move to indicate words from the Chair's mouth. The defendant is eventually taken by the arm, and escorted out by the Sergeant-at-Arms, removed from the room, and arrested for disorderly conduct, punishable by up to 15 days in jail. Her removal and enforcement of the Common Council's perception of defendant's violation of the Rules were all done without a motion or a majority vote of the Common Council - all in direct violation of Rule VII(2). As the defendant is escorted out, the video shows Councilmemembers Christopher D. Petsas and Matthew McNamara clapping their hands. The microphone is then turned on, and there's a discussion among the Chair and the Councilmembers. Councilmember Natasha Cherry expresses her concern that the Rules of Order and Decorum are not applied all the time or with any uniformity. Councilmember Natasha Cherry states her concern with what appears to be a lack of fairness in applying the Rules of Decorum, and a concern that the Rules only seem to be enforced when it benefits some Councilmembers and not others, to wit: "If we have rules they have to apply all the time not just when people don't like what someone's saying or not when they are talking about specific people . We have all been attacked up here...." The Chair acknowledged Councilmember Natasha Cherry's concerns and responds by stating, "Ok, I will come up with something clarifying topics of a campaigning nature to give the Public...." Notwithstanding same, an information charging defendant with disorderly conduct is filed and signed by the Chair.
Rule VII (2) provides as follows, "The Chief of Police or such member or members of the Police Department as he may designate, shall be Sergeant-at-Arms of the Common Council and shall carry out all orders given by the presiding officer for purposes of maintain[sic ] order and decorum at the Council meeting. Any member of the Common Council may move to require the Presiding Officer to enforce the rules upon affirmative vote of a majority of the Common Council."
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There is no allegation in the information, or evidence in the motion or opposition that the defendant violated the Rules of Decorum which are specifically outlined. The City Common Council Rule VII (4) prohibits shouting, clapping, being unruly, distracting, defaming anyone, intimidating anyone, making personal affronts, lodging threats of violence, using profanity, or behavior that disrupts the orderly conduct of the meeting. In fact, defendant is not alleged to have done any of these things, yet the video shows the meeting disrupted by Councilmembers who unplug the audio recording without motion or authority, reveals Councilmembers clapping when the defendant was removed, and shows them standing imposingly close to her while she was reading from prepared remarks, even though she was invited by the Chair to speak. The information, together with the evidence set forth in the motion and opposition, fails to demonstrate defendant's intent to disturb a lawful assembly - even when this Court looks for inferences it can draw from defendant's actions. Indeed, the most specific allegation in the information was that the defendant, "without lawful authority, was disruptive and continued to speak in a loud voice over your deponent and other members of the Common Council ." The term "disruptive" is a conclusory term and is not elucidated with facts to draw any inferences. Moreover, a review of the video does not support an inference that the defendant was "disruptive" as that term is described in Rules of Decorum (shouting, clapping, being unruly, distracting, defaming, intimidating, threatening, using profanity, or making any personal affronts).
What is clear is that when certain members of the City Council disapproved of the content of the defendant's prepared statement, they silenced her by disconnecting the microphone and conclusively deemed the speech impermissible. However unsavory the comments were, defendant has a constitutional right to freely speak her sentiments on non-agenda items. The defendant wished to convey a point and irrespective of how unsavory it may have been, she has a right to convey it. The appropriate remedy in this case would have been to wait until defendant exhausted her three (3) minutes to speak on non-agenda items, for the Chair to instruct her to cease speaking, warn her that she may be required to leave the Common Council Chambers if the violation continued, and only if defendant persisted, could she then be removed. See, Rule VII (7)(a). Here, none of this was done or alleged in the information to have been done. The People must demonstrate that the order instructing defendant to stop speaking, "had a legitimate basis and that their enforcement of the Rules did not unlawfully inhibit or circumscribe defendant from engaging in constitutionally or statutorily protected speech. See generally, People v. Albra, supra at 429, 827 N.Y.S.2d 424 citing People v. Leonard , 62 N.Y.2d 404, 477 N.Y.S.2d 111, 465 N.E.2d 831 (1984). In this matter, the Chair instructed the defendant to cease speaking, but never set forth what rule she was violating—other than shouts that she was campaigning (which isn't prohibited) and which defendant flatly denied. Moreover, based upon the audio of the video that could be heard, what she said did not constitute campaigning, nor did the audio support the allegation that defendant spoke in a loud voice. The information filed with the Court, and evidence supported by the motion and its opposition, fail to demonstrate that the government had a legitimate basis to inhibit defendant's speech at this meeting, while also demonstrating that the selective enforcement of the Rules of Decorum actually circumscribed statutorily protected speech.
B. The purpose and effect of imposing upon the defendant a sentence authorized for the offense; The impact of a dismissal on the safety or welfare of the community; The impact of a dismissal upon the confidence of the public in the criminal justice system.
A conviction for disorderly conduct is punishable by up to fifteen (15) days in jail. The defendant is a sixty-six (66) year old woman who has never been arrested or convicted of anything prior to this incident, and there would be no purpose in imposing such harsh punishment, but would have a grave effect on this particular defendant for an offense where there is little harm.
This Court finds that the Common Council had no authority for restricting the comments made by the defendant, and exceeded its authority by censoring the content of her speech when they turned off the microphone, and not only removed her from the meeting, but pressed charges against her. See Rule XVII, as amended on 3/4/19. While speakers expressed various viewpoints directed at members of the Common Council that could have been deemed offensive, it was not until Ms. Sandow made her remarks about alleged unethical behavior of specific Councilmembers who took offense, called for a point of order, silenced her speech, had her removed, and then arrested!
The confidence of the public in the criminal justice system will be strengthened if the members of the community can be assured that the Rules of the Common Council are enforced uniformly, and that certain speech, no matter how annoying, will not be punishable by imprisonment because it is speech that offends or criticizes government officials—for this is the antithesis of constitutional guarantees.
In view of the foregoing, while this Court has never granted a Clayton Motion in the years serving its judicial term, dismissal of the charges in the furtherance of justice is warranted here. Indeed, denial of the motion would be such an abuse of discretion as to shock the conscience. See, People v. O'Grady , 175 Misc. 2d 61, 667 N.Y.S.2d 895 (1997). Based upon the foregoing, this Court does not reach the other forms of relief sought in defendant's motion.
THEREFORE, based upon the foregoing, it is NOW ,
ORDERED , that the defendant's motion to dismiss pursuant to C.P.L. §§ 170.30 and 170.40 is GRANTED .