People v. Barrigar
Decision Date | 07 October 2020 |
Docket Number | CR-01081-20 |
Citation | 2020 NY Slip Op 20259 |
Parties | People v. Barrigar |
Court | New York County Court |
Appearances by Counsel: Kristyna S. Mills, Jefferson County District Attorney (Cassie L. Tangsrud, Esq., of counsel), for the People, John W. Hallett Esq., of Watertown, New York, Attorney for the Defendant
On June 24, 2020, the defendant was charged with Criminal Tampering in the Third Degree in violation of New York State Penal Law §145.14. It was alleged the defendant engaged in conduct which caused substantial inconveniences to a private individual and members of both the Departments of the Watertown Police and Public Works. The accusatory specifically asserted the defendant intentionally removed the Pride Flag from the Watertown City Hall flagpole and then disposed of the flag by "throwing it in the Watertown City Hall drop-box". The information was based upon the investigation conducted by Detective Sergeant Joseph Giaquinto and supported by his deposition and those sworn depositions of Detective Andrew Neddo and Brandon Woolsey.
On July 29, 2020 the Defendant applied for an Order, pursuant to CPL §170.30(1)(a), dismissing the information upon the ground that it is defective within the meaning of CPL § 170.35(1)(a). The defendant specifically argued the supporting depositions failed to sufficiently allege, in non-hearsay form, that the defendant acted with "intent" to cause substantial inconvenience to any person. Defendant further applied for an Order, pursuant to the First Amendment of the U.S. Constitution and Article 8 of the New York State Constitution, dismissing the information on the ground that his actions are protected speech and thus immune from criminal prosecution. Specifically, the defendant argued that freedom of speech is recognized as freedom of expression and exercising that right means an individual may not be criminally prosecuted for acts which are non-violent and do not cause direct harm to other individuals. The defendant further argued his actions fall within this category of protected behavior.
In its opposition, the People argued the accusatory instrument substantially conforms to the requirement of CPL §100.15 as it sets forth allegations which provide reasonable cause to believe the defendant committed the underlying offense and was supported by non-hearsay allegations as to each required element.
As it pertains to the defendant's Constitutional defense, the People acknowledge expressive conduct is entitled to First Amendment protection. However, the defendant's actions fall outside the scope of First Amendment protections since, among other reasons, the flag he tampered with was private property of another.
The accusatory instrument filed with the court is entitled "Misdemeanor Complaint" and is signed by Detective Sergeant Giaquinto. Pursuant to CPL §100.10(4), a defendant may be prosecuted by way of a misdemeanor complaint. However, it serves only as a mechanism to commence a criminal action. In order for a misdemeanor complaint to serve as a basis for prosecution, a defendant must waive prosecution by information pursuant to CPL 170.65. In the absence of a valid waiver, a misdemeanor complaint must be replaced by an information or converted to one by filing supplemental supporting depositions which satisfy the requirements of a valid information. The Court finds and considers the initial filing to be an information as the supporting depositions were filed simultaneously with the accusatory and, as such, satisfies the pleading requirements for a misdemeanor information.
Pursuant to CPL §170.30(1)(a), a defendant may move to dismiss a simplified information on the ground that it is defective within the meaning of § 170.35. Pursuant to CPL § 170.35(1)(a), an information is defective when it does not conform to the requirements of section 100.40.
CPL §100.40(1) provides that an information is sufficient on its face when:
As noted in paragraph (b) above, on a motion to consider the facial sufficiency of an accusatory instrument, the court is limited to consideration of only the factual part of the information, and any supporting depositions which may accompany it.
CPL §100.20 states that "[a] supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either on personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein."
The offense of Criminal Tampering in the Third Degree occurs when an individual "having no right to do so nor any reasonable ground to believe that he has such right, he tampers with property of another person with intent to cause substantial inconvenience to such person or to a third person." (Penal Law §145.14) The courts have held that to tamper is to alter or interfere with the property of another individual and such instances may occur even when an individual interferes with the radio frequencies which broadcast music for enjoyment or intentionally "jamming" currency slots of vending machines used to dispense transit cards for public transportation. (People v. Choo, 152 Misc 2d 324 [Crim. Ct., New York County 1991]; People v. Walters, 9 Misc 3d 1121(A) [Crim. Ct.,, Kings County 2005]).
It is clear the statute does not require the cause of substantial inconvenience to be demonstrated. The statute only requires that any tampering be done with the "intent" to cause substantial inconvenience to another person or third person.
In a case alleging Criminal Tampering in the Third Degree, the Court in People v Casey held that intent may be inferred from an act itself and a determination as to whether such actions caused substantial inconvenience is a question to be determined by the trier of fact. (People v. Casey, 181 Misc 2d 744 [2nd Dept 1999]). The Court agrees with this analysis and, as such, must be applied to the facts before it.
In his supporting deposition, Detective Sergeant Giaquinto stated that he personally viewed surveillance video footage taken on June 21, 2020, depicting the defendant approaching the flag poles outside of City Hall, reaching the Pride flag and subsequently placing the Pride flag into a nearby drop box.
In his supporting deposition, Detective Neddo discussed a conversation he had with the Defendant regarding the incident. The defendant knew the reason for his investigation and affirmatively told Detective Neddo "...the reason I was there to speak to him was about him taking the gay pride flag down which was his First Amendment right to peacefully protest." In his supporting deposition, Mr. Woolsey stated that he observed the defendant remove the flag and dispose of it in the Watertown City Hall drop box during a YouTube video which was broadcasted on the defendant's channel named "Flat Earth, Watertown, NY". Mr. Woosley further stated that he then went to the drop box, used a stick to remove the flag and notified law enforcement about the incident. He also watched police officers raise the flag to its original location.
The Court finds the requisite intent to cause substantial inconvenience may be inferred from the alleged conduct of defendant. Specifically, the intent to cause substantial inconvenience is clearly demonstrated by the act of removing and disposing of the Pride flag in such a manner to cause members of law enforcement and a private individual to retrieve and return the flag to the flag pole for proper display. The defendant's actions not only required the return of the flag to its proper location, but additional security measures were implemented to ensure such acts did not occur in the future and a criminal investigation.
In light of the foregoing, the Court finds the accusatory instrument is facially sufficient and the defendant's motion to dismiss must be denied.
The defendant further argued that his actions in removing the Pride flag and placing it into a locked box should be afforded Constitutional protections as guaranteed by the First Amendment because it is a form of expression that cannot criminally be prosecuted. The defendant supports this claim by asserting his conduct was ...
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