A judge has dismissed a disorderly conduct charge against a man who represented himself at a trial stemming from his arrest last year at a Brooklyn police precinct during a protest against the New York City Police Department’s stop-and-frisk practices.
Criminal Court Judge Desmond Green (See Profile) in Brooklyn declined to credit police allegations in People v. Allen, 2011KN094288, that Gregory Allen had blocked the entrance to the 73rd precinct in Brownsville.
Allen, a 40-year-old Harlem community activist, was one of 27 people arrested at the rally. A 17-minute video played at his Nov. 19 trial showed him standing in the back of the group of around 80 protesters until he “walked up to submit to be arrested” after police ordered the crowd to disperse, Green wrote in his Dec. 10 decision.
Officer John Blanco alleged in an accusatory instrument that Allen stood in the doorway of the precinct, preventing anyone from going in or out, and refused to disperse when ordered to do so by Captain William Gardner.
"This is incredible on its face as both officers, testifying for the People, contradict this assertion," Green wrote. "It was factually impossible for defendant Allen to stand in the doorway of the front entrance of the 73rd precinct when there was a human barricade of 15 to 20 police officers standing 10 to 15 feet in front of the entrance to the precinct and the defendant was said to be standing five feet away from the line of officers. In order for defendant to have been in front of the entrance way door he would have had to breach the line of officers."
Moreover, Green continued, “this would be the same scenario for any of the alleged co-defendants who were at the rally on November 1, 2011.”
Also, the police order that protesters disperse “was not lawful” because “the protesters were not blocking the entrance to the precinct” and were “peaceably assembled,” the judge said.
Thus, he concluded, the NYPD had failed to make out the elements necessary for a disorderly conduct charge and dismissed it because the prosecution had failed to offer a prima facie case.
The prosecution dropped a second charge, of obstructing governmental administration, before the judge ruled.
Obstruction is a misdemeanor punishable by up to one year in jail. Disorderly conduct is a violation punishable by up to 15 days.
Allen said he was happy with Green’s decision.
"It was a good experience," he said, adding that his arrest "was frivolous in the first place."
The judge “did not respond well to obvious discrepancies between the officers’ stories” and the video, Allen said.
Allen cross-examined the officers, but he did not testify at trial and called no witnesses.
Bench trials for other defendants charged at the demonstration are scheduled for Feb. 7, 14 and 15.
"So far the prosecution has refused to dismiss even though the evidence is conclusive that they did not block the evidence to the 73rd Precinct," said Julie Fry, an attorney with the Legal Aid Society who represents a group of people arrested with Allen. "The charges are all the same, the video is the same, the facts are the same. It’s a waste of everyone’s resources to go through with it."
Brooklyn District Attorney Charles Hynes said his office is considering how to proceed.
"With respect to the pending cases, we are reviewing the evidence in light of Judge Green’s decision," he said in a statement.
Assistant District Attorney Seth Zuckerman appeared for the prosecution at the trial.
The 73rd Precinct recorded the second-highest number of stops in the city in 2011, with 25,167, according to NYPD data.
Meanwhile, in a similar case, four people arrested during a stop-and-frisk protest in front of the 103rd Precinct in Queens last year were acquitted in a Nov. 15 jury trial of obstruction of government administration. A jury found them each guilty of disorderly conduct. They are to be sentenced on Jan. 7.
In 2011, there were 17,152 stops by 103rd Precinct personnel, the eighth-highest in the city.
New York Law Journal