Judicial Reports: Going Through the Motions

By Leah Nelson
lnelson@judicialstudies.com
Posted 12-19-07

The judge who let charges proceed against the Times Square sidewalk stander is reputed to be a smart guy, and he was following pretty standard practice. So why did the Court of Appeals reverse?

In June 2004, when New York County Criminal Court Judge Abraham Clott allowed charges to proceed against a man accused of obstructing sidewalk traffic in Times Square, it’s unlikely he imagined that his decision would land in the state’s highest court three years later.

Eric Dorsh, the Legal Aid Society lawyer who represented defendant at arraignment in Clott’s courtroom, said he didn’t anticipate such an outcome. He only vaguely recalled the case, and said there was nothing unusual about his argument to the judge that the charges were facially insufficient.

Nor, he said, was Judge Clott’s decision to uphold the charges erroneous.

“I can’t even tell you how many [disorderly conduct charges] I’ve handled,” he said. “They all look the same, they’re all boilerplate. Judge Clott’s a very smart judge — he’s one of the smartest Criminal Court judges. The only reason I would have made that argument is because it was in front of Judge Clott.”

Judge Clott declined to be interviewed for this story. 

(Since the initial publication of this story on December 19, new information has come to Judicial Reports’ attention, as follows: Whether or not he agreed that the disorderly conduct charge was facially insufficient, Judge Clott was prohibited from dismissing it on those grounds at arraignment.

New York Criminal Procedure Law 170.30 states that motions to dismiss on such grounds can be submitted only after arraignment. Court records show that Jones pleaded guilty at arraignment after Clott denied Dorsch’s motion, effectively closing the option of dismissal on grounds of facial insufficiency. Ultimately, as the question of dismissal was moot once Jones took a plea, the Court of Appeals vacated the conviction on grounds that the charge was facially insufficient.)

The Court of Appeals ruling in People v. Matthew Jones isn’t the first instance in which Clott, a Motion Court judge, has been overturned for failing to dismiss violation charges after such an objection.

In January 2005, less than a year after ruling against Matthew Jones, he denied a similar facial insufficiency motion to dismiss charges of parading without a permit and disorderly conduct against Jennifer Bezjak. In 2006, that decision was overturned at a trial before Criminal Court Judge Gerald Harris.

Civil rights lawyer Gideon Oliver of Oliver and Oliver, Attorneys at Law, represented Bezjak. Informed for the first time that the judge who denied his motion to dismiss was connected to Jones, he expressed no surprise. In Bezjak, said Oliver, Clott “declined to look at the Constitutional issues at all. . . . He totally ducked. We raised all the same [issues] as we raised before Judge Harris.”

Appearing before Judge Clott in motion court, Oliver proposed that the complaints in both charges were facially insufficient — and that the parading without a permit charge was defective because the statute violated his clients’ First Amendment right to self-expression.

Oliver said he has rarely, if ever, taken a violation case to trial. Bezjak was special, he said, as it exemplified what was wrong with “a ton” of disorderly conduct and unpermitted parading cases then being prosecuted by the Manhattan District Attorney around the time of the 2004 Republican National Convention.

“It seems like the police department wanted to send a message to people who were coming from out of town . . . so they arrested about 260 people at a Critical Mass ride right before [the convention],” Oliver said. “My clients wanted to go to trial for political reasons and because their arrests were pretty outrageous.”

So did Judge Clott “duck”?

There is no question that Clott is familiar with the challenges defense lawyers face: He was a federal defender for over 20 years before his 2004 appointment to the Criminal Court bench, and before that, he worked for the Legal Aid Society. So his two overturned decisions on facial sufficiency could not have stemmed from ignorance of the issues.

In fact, the slow pace of the criminal court worked in the defense’s favor.

Though Oliver presented the same constitutional objections to both Clott and Harris, some things had changed by the time Bezjak got to trial — and Judge Harris was only persuaded to overturn Clott after three days of trial and a 600-page record. Moreover, the disorderly conduct charge stands, though Oliver is cross-appealing it to the Appellate Term, to which the prosecution has appealed Harris’ ruling on parading without a permit.

In his write-up of Bezjak, Harris cited three primary reasons for overturning Clott: First, his failure to address whether the statute was overbroad; second, his silence as to whether it had a “potentially chilling effect upon freedom of expression”; third, the testimony of eleven trial witnesses, which “highlighted deficiencies in the City’s parade permit scheme. This information was not available to the motion court.”

Harris also stressed a federal appellate decision, made a few months after Clott’s ruling in another circuit, holding that overbroad statutes like the city’s rule against parading without a permit can fail to “pass constitutional muster.”

In the interim between Clott’s and Harris’s rulings on Bezjak, others judges decided similar motions — and not always the same way that Clott did. Several of those cases also went on to trial.

Oliver broadened his critique beyond Clott himself.

“Not one of the [Motion Court] judges that I dealt with wanted to go beyond ‘I could see how [the acts that led to the charge] could be a problem the way this complaint is drafted, so let’s go to trial.’ ”

Dorsch, who is now Acting Executive Director of the NYPD’s civilian complaint review board, agrees in principle — but doesn’t see the problem in the same light as Oliver. “I don’t think you’d want them to have a very high standard [of proof] at that point,” he said.

Indeed, in citing the federal critique of overbroad statutory language, Judge Harris even noted that “facial challenges to statutes are generally disfavored.”

The Court of Appeals ruling does appear to tighten standards for prima facie sufficiency. In New York, violation charges are made on “informations,” not formal complaints, and the high court decision says such charges in the future need to show harms rather than simply describe situations that satisfy statutory language. A key reason, as cited by Court of Appeals Judge Carment Beauchamp Ciparick, is that informations are less formal complaints and, so, should “set forth non-hearsay allegations that, if proven to be true, make out every element of the offense charged."

Dorsch is pleased at this outcome. “The truth is, the police often use it as ‘We don’t like what’s happened here,’ and write it up as disorderly conduct,” he said. He added that the high court’s clarification doesn’t make Clott’s original decision bad.

“He’s not some conservative judge. He’s not some hanging judge. He’s a judge who thought he was applying the law correctly,” Dorsch said, pointing out that the judges of the Appellate Term agreed with Clott on the law. (Criminal Court rulings rarely end up in the Court of Appeals. A total of three cases heard by the Appellate Term, which hear Civil Court appeals too, have done so in the past two years.)

So what’s the upshot of People v. Jones? Certainly, chatting pedestrians are now protected from prosecution, but the Court of Appeals decision could reach further than that. Ciparick clearly stated that the purpose of raising the standard for facial sufficiency is to shift the burden of proof in violation charges more firmly onto the state’s shoulders.

It is too soon to tell how this will affect court culture, but Gideon Oliver hopes the change will be substantial. If Jones is a success, he says, future judges will see “generic” complaints as analogous to those that the Court of Appeals said were insufficient – and dismiss them because of it. “You should be able to get a bad complaint dismissed early on . . . but [that] has been incredibly hard,” he said. “Pretty much, you take [cases like Bezjak, involving minor charges] to trial hoping to get a decision like Jones.”

Research Director John Ennis contributed to this report. 

Posted by Dirk on December 18, 2007 04:33 PM to Judicial Reports