People v. Carty

Decision Date14 December 2016
Docket Number13-281
Citation2016 NY Slip Op 26418
PartiesThe People of the State of New York, Respondent, v. Nicole Carty, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Term

PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered September 7, 2012, after a nonjury trial, convicting her of two counts of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered September 7, 2012, affirmed.

Defendant was convicted, after a nonjury trial, of two counts of disorderly conduct, arising from her participation in an "Occupy Wall Street" protest. Defendant's present arguments relating to the legal sufficiency of the evidence, to the extent preserved for appellate review, are lacking in merit. Nor was the verdict against the weight of the evidence. The People's proof established that defendant obstructed pedestrian traffic (see Penal Law § 240.20[5]) by laying down on a busy Wall Street sidewalk at 4:00 PM on a trading day, side-by-side with other "Occupy" protestors, and refused to comply with a lawful police order to disperse (see Penal Law § 240.20[6]). This evidence established the elements of the two types of disorderly conduct at issue (see People v Seck, 126 AD3d 574 [2015], lv denied 25 NY3d 1171 [2015]).

Furthermore, defendant testified that she had been trained in "street tactics," including how to "form a wall" and "blockade" pedestrian and vehicular traffic, and that the "Occupy Wall Street" demonstrators chose that particular time and location (and also chose to lie down, rather than stand) in order to communicate their message about the injustices created by Wall Street "to as many people as possible." In fact, defendant flatly acknowledged that potentially obstructing pedestrian traffic "wasn't going to stand in the way of ... advancing her message." It is no wonder, then, that defendant expressly conceded at oral argument before this court that she possessed the requisite mens rea to sustain her convictions, i.e., that she acted with intent to cause public inconvenience, annoyance or alarm, or recklessly created a risk thereof (see People v Weaver, 16 NY3d 123 [2011]), and abandoned her legal sufficiency challenge with respect to this element.

The dissent's assertion that the video recording of the incident demonstrates interference with only a "minuscule" number of pedestrians in the "open pedestrian plaza" around Wall Street ignores critical and indisputable evidence on that video recording, including that the police placed barricades around the subject pedestrian area due to this demonstration, as well as a larger simultaneous demonstration that was occurring directly across the street; that scores of pedestrians were pinned against the barricades; and that the police can be heard yelling "keep back" at the crowd, which was understandably precluded from traversing across the subject sidewalk for fear of trampling the protesters.

Defendant's claim that the Police Department, in violation of the First Amendment, instituted a "complete ban on lying down on sidewalks as a form of protest," finds no support in the record and, in any event, was not raised below and, therefore, is unpreserved for our review. Nevertheless, it is well settled that a state may prohibit a speaker from "taking [her] stand in the middle of a crowded street, contrary to traffic regulations ... since such activity bears no necessary relationship" to the freedom of speech (see Schneider v State, 308 US 147, 160-161 [1939]; see also Cox v New Hampshire, 312 US 569, 574 [1941]; Papineau (Jones) v New York (Parmley), 465 F3d 46, 56-57 [2d Cir. 2006]). As this court held in People v Penn (48 Misc 2d 634 [App Term, 1st Dept [1964], affd 16 NY2d 581 [1964]), protests and demonstrations are "subject to reasonable regulation and control in the interest of public safety and order." When conduct, even taking the form of protest, substantially interferes with vehicular or pedestrian traffic, prosecutions for disorderly conduct are appropriate and constitutional (see People v Turner, 48 Misc 2d 611 [1965], affd 17 NY2d 829 [1966]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Hon. Doris Ling-Cohan, Dissenting Opinion

I respectfully dissent and vote to reverse defendant's conviction. Defendant's peaceful protest activity - constitutionally protected under the First Amendment - did not violate the disorderly conduct statute, Penal Law §§ 240.20 (5) and (6).1

Penal Law § 240.20 (5)

A person is guilty of disorderly conduct under Penal Law § 240.20 (5) "when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [s]he obstructs vehicular or pedestrian traffic." Notwithstanding the majority's focus on mens rea being conceded, nonetheless, the other necessary elements were not proven. At most, the People proved a mere "temporary inconvenience" caused to pedestrians, which is insufficient. While the Penal Law does not define "obstructs vehicular or pedestrian traffic," the Court of Appeals has made clear that "[s]omething more than a mere inconvenience of pedestrians is required to support the charge" (People v Jones, 9 NY3d 259, 262 [2007] [emphasis added]; People v Pearl, 66 Misc 2d 502 [App Term, 1st Dept 1971] [something more than the temporary inconvenience caused to pedestrians by the demonstrators' blocking of the crosswalk, resulting in pedestrians entering the roadway to get to the other side, was required to sustain a conviction for obstructing pedestrian traffic]; see also People v Nixon, 248 NY 182, 187-188 [1928], revd on other grounds by People v Santos, 86 NY2d 869 [1995]).

This crucial element of "more than a mere inconvenience of pedestrians" is absent in this case (People v Jones, 9 NY3d 259, 262 [2007]). Thus, defendant's guilt under Penal Law § 240.20 (5) was not established beyond a reasonable doubt. The videotape evidence of the subject incident submitted by both sides conclusively demonstrates that defendant, and the six (6) other individuals who laid down on the sidewalk with her as part of the Occupy Wall Street protest, caused, at most, only a temporary inconvenience to a minuscule number of pedestrians, who were otherwise able to freely traverse the wide sidewalk2 in front of the building;3

as well as Wall Street area's open pedestrian plaza (which consisted of roadways, closed to vehicular traffic). In fact, the videos introduced by both the People and defendant indisputably show a wide expanse of sidewalk in front of the building, and numerous pedestrians freely walking across the vast sidewalk and past the demonstrators. Further, the videotape shows a sidewalk wide enough for at least several people to lay head-to-toe without obstructing pedestrian traffic. Additionally, the People's video shows other people sitting down approximately five (5) feet away from the protestors, having a meal, unimpeded by the protestors, nor bothered by the police. The video evidence further confirms that at some point several police barricades were placed closer to the protesters, thereby causing a smaller area available to pedestrians to traverse. Such video shows the rest of the sidewalk from the barriers — which had been placed a foot away from the protesters who were peacefully lying down on their backs with signs held up4

— was either empty space or occupied by the police. The videos also show the wide expanse of the Wall Street "pedestrian plaza" (which had been the roadway) barricaded by the police so that no pedestrians could enter. Notably, the videos clearly show that pedestrians were still able to cross the sidewalk. In addition to the video evidence (presented without objection), the People's witness, Police Officer Ban, testified that pedestrians could cross the sidewalk. A ten-second clip of defendant's video evidence corroborates that approximately thirteen (13) pedestrians walked around the supine protesters, without difficulty, traversing along the subject sidewalk.5

Further, the People's videos present that just prior to defendant's arrest, in addition to the seven (7) protesters, no less than ten (10) police officers also stood on the subject sidewalk — almost double the number of protesters — while still leaving space for passersby to cross. While the majority points to the placement of barricades due to the demonstrators, claiming that "scores of pedestrians were penned against the barricades", the video evidence shows that the people against the barricades closest to the protestors were media, holding sophisticated photographic equipment aimed at the defendant, her colleagues and the police. Nor was there testimony that the barricades were placed for the safety of the protestors, "for fear of trampling the protestors" as concluded by the majority. Furthermore, as it is undisputed that all vehicular traffic is normally barred from this pedestrian plaza in the Wall Street area, pedestrians would have been ordinarily free to walk in the "roadway", rather than the sidewalk, but for the police barring such activity, with their barricades and other actions. In any event, assuming that, indeed, some pedestrians were inconvenienced, there was no testimony as to the actual number affected, if any, or that any pedestrians had complained (c. f. People v Turner, 48 Misc 2d 611 [App Term, 1st Dept 1965]), nor did any allegedly impeded pedestrian testify.

Crediting the testimony of all of the People's witnesses, the People nonetheless proffered no testimony that the protesters caused more than a "mere inconvenience" to pedestrians (People v Jones, 9 NY3d 259, 262 [2007]; People v Pearl, 66 Misc 2d 502 [App Term, 1st Dept 1971]).6

Moreover, weighing the relative probative force of the testimony of the People's witnesses against the conclusive and...

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