People v Bucci

[*1] People v Bucci 2016 NY Slip Op 51855(U) Decided on December 1, 2016 Justice Court Of The Town Of Cortlandt, Westchester County McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2016
Justice Court of the Town of Cortlandt, Westchester County

The People of the State of New York,

against

Michael Bucci, KIM A. FRACZEK, MELISSA L. FREEDMAN, MONICA D. HUNKEN, GEORGE E. PACKARD SUSAN H. RUTMAN, ANDREW J. RYAN, LINDA J. SNIDER, KATHLEEN THOMAS, Defendants.



15110186
Daniel F. McCarthy, J.

The issues in the above entitled case having been heard before Cortlandt Town Justice Daniel F. McCarthy upon a non-jury trial at the Town of Cortlandt Court House, 1 Heady Street, Cortlandt, New York commencing on the January 15, 2016 and continuing on various days through and including July 22, 2016, and after review and due consideration of all the evidence presented at trial and upon the arguments and authorities submitted on behalf of the prosecution and the defense, the Court finds as follows:

BACKGROUND

These consolidated cases arose in connection with protests against and objections to a large-scale construction project proposed and being performed by an energy supply company doing work in the metropolitan area, and specifically involved certain areas of the Town of Cortlandt, as well as surrounding communities. The scope of the project, as pertains to these cases and the activities in the Town of Cortlandt, involves the removal of an existing underground 26-inch-diameter natural gas pipeline installed many years ago and the replacement of a new underground 42-inch-diameter natural gas pipeline. As a consequence of this pipeline replacement project, there have been a series of public demonstrations and protests carried out in various locations in the Town of Cortlandt with the express purpose of stopping the pipeline replacement project from proceeding to completion.

In addition, and against this backdrop, there has been extensive public interest and debate, as well as federal, state and local oversight, scrutiny and comment concerning the pipeline replacement project. Due in part to the fact that this large-scale project involved the transmission and transportation of natural gas energy supplies in interstate commerce across [*2]multiple state lines, federal law required the submission of an application to the Federal Energy Regulatory Commission ("FERC") to obtain authorization to implement this pipeline project. As a consequence, FERC conducted hearings and accepted submissions pursuant to federal law, and those proceedings resulted in the Commission rendering an Order Issuing Certificate (issued March 15, 2015),[FN1] thus approving the project, and subsequently issuing a further Order Denying Rehearing and Dismissing the Stay Request (issued January 28, 2016).[FN2]

While the above proceedings were taking place, the defendants herein, as well as others, engaged in actions which culminated in their arrest and the charges now before the Court.

CHARGES

Each of the nine (9) above defendants is charged pursuant to a Superseding Violation Information filed with the Court on December 11, 2015 alleging a violation of the Disorderly Conduct provisions of Penal Law Section 240.20(5), wherein it is alleged that on or about November 9, 2015 at approximately 6:30 a.m. at 2071 Albany Post Road, in the Town of Cortlandt and State of New York,

"[t]he Defendant(s) with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he/she obstructs vehicular or pedestrian traffic.TO WIT: On the above date, time and place the above defendants did use their bodies to block the driveways at the above location. The above location is a parking/staging area for workers who are working on the Algonquin Pipeline project. The defendants were protesting the pipeline project. By blocking the driveways, the defendants did recklessly create a risk of public inconvenience, annoyance or alarm by causing a back-up of traffic on Albany Post Road (Route 9A) in both the northerly and southerly directions. Workers trying to enter the driveways with their vehicles could not and this caused a domino effect of blocking the cars behind them on Albany Post Road thereby causing a traffic jam. I and other members of the NYSP asked the defendants to move to the side and to stop blocking the vehicles attempting to pull into the driveways. This would have, in turn, opened the flow of congested traffic on Albany Post Road. It was explained that the defendants could continue with their demonstration, but they need to stop blocking the driveways and preventing cars from entering. The defendants were asked to move to the sides of the driveways, but they refused to move and we told them that if they did not move they would be arrested. They still refused to move.""The above allegations of fact made by the complainant herein [Trooper Adrian Melendez] on direct knowledge."

PROCEDURAL HISTORY

Each of the nine (9) defendants was originally charged with the violation of Disorderly Conduct by separate information, and was issued an appearance ticket directing that they appear before the Court on November 20, 2015. Each defendant appeared on that day with defense counsel Martin Stolar, Esq. and, on the record, waived any claim of conflict as to defendants' counsel representing each of them. Pursuant to an agreement between the parties and the Court, each of the cases was consolidated for trial and a Superseding Violation Information was filed with the Court on December 11, 2015. Each defendant was arraigned on this accusatory, plead not guilty and all matters were set down for a nonjury trial on January 15, 2016.

The nonjury trial commenced on January 15, 2016, whereupon two witnesses were called by the prosecution and the trial was continued to February 3, 2016. On that date, prior to continuing the testimony, defense counsel advised the Court that the defendants intended to call a member of the Town Board of the Town of Cortlandt to testify on their behalf and in support of the defendants.[FN3]

Trial testimony resumed on June 22, 2016, and continued and concluded on July 15, 2016. Counsel for the People and Defendants requested that the Court adjourn for one (1) week for presentation of arguments. Upon hearing arguments from both sides, the Court received additional submissions and authorities from the parties and reserved decision.

During the course of the trial, the Court heard testimony from 18 witnesses, with 6 called by the People, and 12 by the defense, including all nine (9) defendants. There were 50 exhibits introduced into evidence, and both the People and defendants submitted extensive trial memoranda and case authorities for the Court's consideration, all of which the Court has reviewed and considered in arriving at a decision in this case. Due to the number of witnesses and length of time between proceedings necessitated by the ethics question that arose during the course the trial, the Court ordered and received a portion of the trial transcript which consisted of more than 500 pages of testimony.[FN4]

TRIAL EVIDENCE

The basic operative facts of this case are not in dispute. The evidence presented by the People and the defendants, in the form of witness testimony and photographs and other documentary evidence, established that on November 9, 2015, a Monday morning, at approximately 6:30 a.m., the nine (9) defendants arrived at 2071 Albany Post Road in the Town of Cortlandt, County Westchester and State of New York, a location which was being used as a parking lot for the vehicles of the construction pipeline project workers.

Upon arriving at this location, the defendants stood in a line across the mouth of both the northerly and southerly driveways holding a banner and/or signs, with arms interlocked or holding hands, so as to create a barrier or barricade to prevent vehicles from either exiting or entering the driveways to the parking lot at that location. The numerous photographs admitted into evidence unequivocally show each of the defendants standing in the driveway areas obstructing the flow of vehicles in and out of the parking lot established for use by the pipeline workers. In addition, numerous photographs (Exhibits 6, 7, 12, & 16) show long lines of vehicles backed up northbound and southbound along Albany Post Road/Route 9A, and the traffic conditions were corroborated by the testimony of several members of the New York State Police. Numerous additional photos admitted into evidence show vehicles attempting to drive into the above-mentioned driveways but being prevented from proceeding because of the defendants standing in and blocking the driveways. (Exhibits 4, 6, 10, 16, 17, 18, 19, 20 & 21).

The testimony of several witnesses presented by the People confirmed that there was no actual construction occurring at the location or vicinity of the parking lot or driveways being obstructed by the defendants, and that this area was merely being used as a parking lot for the personal vehicles and trucks of the pipeline construction workers. At least one witness offered testimony that there was a brief altercation between some of the construction workers who were prevented from entering the parking lot driveway area by the defendants who were obstructing their path, and that the New York State Police had to intervene to prevent the situation from escalating. He was concerned the defendants would be harmed by the construction workers who were angered by the actions of the defendants blocking the movement of vehicles in and out of the parking lot. (See photos, Exhibits 10 & 14).

Several members of the New York State Police testified that they specifically and repeatedly advised each of the defendants that they had the right to continue their protest, but they could not do so while also obstructing vehicular traffic in the area. The New York State Police Investigators and Troopers on the scene repeatedly advised the defendants that they would honor and allow them to continue to protest and exercise their First Amendment free speech rights, and this was confirmed and corroborated by the testimony of the defendants. However, the defendants were also advised on multiple occasions that if they did not move to the side they would be arrested. On multiple occasions the defendants were given the opportunity to move just a few feet to the north or the south out of the driveway locations that they were obstructing, but each defendant [*3]steadfastly and repeatedly refused to clear the driveway to allow vehicles to pass, and as a result were placed under arrest.

The defendants' case in chief presented the testimony of the nine (9) defendants, as well as three other individuals to opine [FN5] on the dangers and environmental hazards of the pipeline project. As to the testimony of the defendants, each essentially confirmed the version of events testified to by the People's witnesses, and in particular noted that there was no construction or pipeline activity in the area of the parking lot and driveways that they were obstructing. As to their activities that day, defendants claimed that their intent was not to block traffic, but rather to stop the workers from completing the pipeline.

Each of the nine defendants also testified as to their numerous protest activities over the years at various other projects, and that it was their personal belief that the pipeline project involved in this case was dangerous [FN6] and/or harmful to the environment. Most all of the defendants also brought up the subject of climate change and global warming as a reason for their activities in protesting.

LEGAL ARGUMENTS

The evidence shows, and defendants admit as much, that the prosecution presented proof beyond a reasonable doubt as to each and every element of the offense of Disorderly Conduct under Penal Law Section 240.20(5) in that the defendants "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," obstructed vehicular traffic. Clearly the actions of the defendants caused public inconvenience, annoyance or alarm by engaging in conduct that caused significant and extensive traffic backups along a public highway, as well as specifically obstructing the free movement of vehicles in and out of the parking lot area in question. Moreover, the [*4]testimony of the Troopers that they were concerned for the safety of the defendants, who they feared would be harmed by the construction workers whose vehicles were being obstructed was convincing and supported by the photographic images of the workers introduced at trial. The People satisfied each and every element of the offense charge beyond a reasonable doubt. (See, e.g., Peo. v. Bezjak, 11 Misc 3d 424, 437-438 (NY Crim. Ct., 2006)

The defendants raise two (2) defenses in opposition to the charge: (i) Justification under Penal Law Section 35.05(2); and (ii) First Amendment.

In addressing the justification defense, the statutory provisions under Penal Law Section 35.05(2) read as follows:

"Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense."

As a threshold matter, it is the Court's responsibility to make a ruling, as a matter of law, whether the facts and circumstances claimed by the defendant would, if established, constitute a defense. Here, in the context of a nonjury trial, the Court, in its discretion, chose to allow the defense some latitude in presenting evidence, while still having the obligation to determine, as a matter of law, whether the facts and circumstances presented are to be considered.

The Court finds, based upon a review of the testimony and evidence presented by the defendants in support of their claim of justification, that the defense is inapplicable and unsupported as a matter of law, and based primarily upon subjective and speculative personal views and opinions of the defendants. The evidence presented fails to satisfy the requirements set forth specifically in the statute, and does not comport with the case law interpretation of the meaning and intent of the legislatively enacted justification provisions under the Penal Law.

Penal Law Section 35.05(2) requires, in the ordinary sense of the words, that the defendants' conduct must be "necessary" as an "emergency measure" to avoid an "imminent" public or private injury that is "about to occur". By any measure, it cannot be reasonably argued that there was any type of imminent or emergency situation that was [*5]about to occur which necessitated that these defendants commit the acts for which they are charged.

Case law from the Court of Appeals in People v Craig, 78 NY2d 616 (1991) addressed an analogous situation where protestors concerned with the government's Nicaraguan foreign policy chose to occupy a congressional office as a means of protest in violation of the trespass laws, and then asserted the justification defense. In rejecting the defense, the Court interpreted "imminent" and "about to occur," as an "impending harm which constitutes a present, immediate threat — i.e. a danger that is actual and at hand, not one that is speculative, abstract or remote" (Id. at 624). The Court of Appeals also made clear that it is an "objective standard" by which a defendant's actions are to be evaluated, and not the defendant's subjective or speculative state of mind. (Id. at 620). Lastly, when looking at the legislative history the Court specifically stated the defense was available only "in rare and highly unusual circumstances" (Id. at 622). Looking at the express language of the statute and how the courts have interpreted this defense, it is clear that the facts and circumstances of the defendants' arguments here do not support the defense as a matter of law.

Turning to the defendants' First Amendment claims, the Court notes that there was no dispute offered between any of the prosecution and defense witnesses, including the defendants themselves, that the defendants were afforded every opportunity to exercise their First Amendment rights and continue with the protest as long as they did so within the bounds of the law, i.e. without violating the provisions of Penal Law Section 240.20(5).

As acknowledged by the defendants, their First Amendment rights to protest are not all-encompassing and absolute, but may be subject to reasonable time, place and manner restrictions. (People v Maher, 137 Misc 2d 162, 169 (NY Co. Crim. Ct. 1987). Here, the defendants acknowledged that members of the New York State Police repeatedly affirmed the right to continue the protest if only they would move a few feet either to the north or to the south along the sidewalk rather than blocking vehicular traffic in and out of the driveways. Defendants, by their own testimony, specifically chose to pursue an agenda that led to their arrest. There can be no claim of a violation of their First Amendment rights under the facts and circumstances presented in this case.

CONCLUSION

The Court finds the evidence presented was legally sufficient to establish each of the nine (9) defendants' commission of each and every element of the charge beyond a reasonable doubt, and accordingly, the Court finds the defendants guilty of the violation of Disorderly Conduct under Penal Law Section 240.20(5).

This shall constitute the decision, verdict and order of the Court.

Decision and Order signed this 1st day of December, 2016.

________________________________

Daniel F. McCarthy

Cortlandt Town Justice Footnotes

Footnote 1:The full text of the 66 page decision issued by the Commission can be found at https://www.ferc.gov/CalendarFiles/20150303170720-CP14-96-000.pdf, and is also mentioned by referenced in the source materials submitted by defendants' counsel as part of defendants' Trial Memorandum, Exhibit A, and specifically referred to and discussed by defendants' consultant witnesses.

Footnote 2:See, https://www.ferc.gov/CalendarFiles/20160128180805-CP14-96-001.pdf for the full text of the 93 page decision of the Commission denying rehearing and a request for a stay. The Court notes that Town of Cortlandt was one of the petitioners seeking rehearing before the Commission.

Footnote 3:Due to the fact that the Town Board sets the salaries for the Justices and court personnel, the potential for conflict arose when the Court learned that a Town Board member would be called as a witness. As a result, the Court sought an advisory opinion from the Commission on Judicial Ethics as to whether the court would be required to recuse or could retain jurisdiction of the case. In early April, the court received Opinion 16—21 advising as to procedures to be followed in determining whether to retain jurisdiction of the case or not. Both the People and the defense consented to have the Court continue to preside, and the Court made a determination that it could fairly and impartially evaluate the testimony of the Town Board member, and thus, the trial resumed.

Footnote 4:By letter dated September 2, 2016, the People proposed that the Court render an oral decision at that time, with a written decision to follow, expressing concerned for the issue of the length of time between the close of the trial and rendering a verdict. In response, on September 9, 2016, defense counsel noted that the issue of the length of time between the end of the trial and the issuance of a verdict is dictated by the circumstances of the particular case, including the length of trial, number of witnesses, and complexity of issues and volume of exhibits, and thereafter, noted that the defense had no objection to the delay. The Court is mindful of the timing issue in this case, however, given all of the factors set forth above, including the significant public interest and concerns involved, it is the Court's view that the time taken to fully examine, consider and evaluate all of the issues in this case was warranted, necessary and not unreasonable.

Footnote 5:The three witnesses called by the defense offered their opinions as to why, in their view, the pipeline project that had been approved by FERC should be stopped. However, none of these witnesses was able to identify a then existing fact to support the legal justification defense of the defendants that the continued construction and completion of the pipeline project constituted an "imminent" threat or harm that was "about to occur". The Court has had the opportunity to examine some of the claims of the defense witnesses and compare them to the findings made by FERC in the original approval decision and subsequent denial of rehearing, and it appears to the Court that many of the very same arguments were made to and rejected by the Commission. For example, the testimony concerning a study performed by Accufacts on behalf of the Town of Cortlandt was specifically examined by the Commission in its March 2015 decision, at pages 16 — 17, and the Commission noted that certain findings of the Accufacts study and conclusions were "speculative" and "unfounded". The Court finds itself in the position of being asked by the defense to second-guess, and essentially overrule, the findings of a federal regulatory agency charged with the responsibility under federal law to evaluate and act on applications of the very types of projects that are involved in this case. The Court is unpersuaded by the evidence and arguments advanced by the defendants in this regard.

Footnote 6:The Court finds some of the actions and behaviors of the defendants, as portrayed in certain trial exhibit photos, incongruous with their positions at trial that there was imminent danger which needed to be addressed by their actions, and in particular the Court finds the defendants' celebratory actions as shown in People's Exhibit 63, where defendants are smiling, laughing and celebrating with their hands up in the air after their arrest in front of the Cortlandt Emergency Services building and the New York State Police Headquarters to be inapposite.