Homeless advocates look to judge to dismiss trespass charges

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Submitted by T. Forsyth on Thu, 2015-01-22 18:28

On the morning of January 6, 2015, Sister Grace Miller of House of Mercy, Tom Malthaner of St. Joseph's House of Hospitality, and Ryan Acuff of House of Mercy, stood before City Court Judge Thomas Rainbow Morse asking him to dismiss their trespassing charges in the furtherance of justice.

Nearly 80 supporters flooded the court. The judge ordered the doors to the court open so that people in the hallway could listen in as every seat in the courtroom was filled.

“We have a higher authority. And our authority tells us—go on—continue the fight for the homeless and we will continue to do that,” said Sister Grace after court to gathered supporters. “We're doing it with your support. And your support means so much to us. We can't thank you enough for being here.”

According to motion papers released by Sister Grace, Mr. Malthaner, and Mr. Acuff, represented by Edward Hourihan of Bond, Schoeneck & King, PLLC, “[The p]rosecution of the defendants would result in a supreme injustice. An examination of these factors [ten factors that must be met in order for the judge to consider dismissing the charges] as applied to Sister Grace, Malthaner, and Acuff shows that prosecution of these individuals would do nothing more than punish these advocates for those in the community who are the neediest and whose voices are not heard.” The document continued, “Moreover, prosecution of them would fail to address the real victims here—the homeless who were kicked out of the Civic Center Garage and literally forced out into the cold.”

“Homelessness is not an intractable problem in Rochester,” said Mr. Acuff to those gathered. “We can solve it but we need to keep going; whatever our barriers we need to get around them and as long as we're in this together, we can solve it.”

Sister Grace Miller, Tom Malthaner, and Ryan Acuff address supporters after court

Homeless advocates' statements post court

The three advocates were arrested on September 15, 2014, in a second floor office in the Monroe County building on Main Street as they were attempting to reschedule a meeting with Commissioner of Human Services Kelly Reed from September 9, 2014 that had been abruptly canceled by the county. While the three were waiting to meet with county officials to reschedule their meeting with Reed, Monroe County Sheriff's deputies appeared and told the advocates that if they didn't leave the office, then they would be arrested.

None of the three understood why they were being asked to leave a public office attempting to reschedule a meeting that was abruptly canceled by the county. None of them were informed that they couldn't go to the second floor and attempt to get redress for their grievances from public officials.

Sister Grace refused to leave as did Mr. Malthaner. They were both arrested. Mr. Acuff followed the officer's order and left the office. He removed his cell phone and began to tape events from outside of the office. In his affidavit, dated December 10, 2014, Mr. Acuff stated that, up to that point in the events leading to his arrest, “No one ever instructed me to leave the second floor.”

Mr. Acuff stated in his affidavit that the officer then told him to leave the second floor. He complied with the order and was “walking backward toward the stairs and videotaping the events, I was suddenly charged and tackled by the same police officer.”

He recounted that as he was being tackled and forced onto his stomach, the deputy said, “The game's over.” In his affidavit, Mr. Acuff said, “At no point was this ever a game to me.”

Sister Grace Miller, Tom Malthaner, and Ryan Acuff were all arrested and charged with criminal trespass in the third degree. They were arraigned the next day. The January 6 motions hearing was the first time they were in court since their arraignment.

“The thing that we really need now is for you to express to the city and the county your concern about the homeless situation here in Rochester,” said Mr. Malthaner after court. “We need the people to really write letters, call the mayor, and call the county executive, and say we got a a real problem here in Rochester with homelessness.”

Mr. Hourihan, representing the three defendants opened with a request for the charges against his clients to be dismissed in the furtherance of justice. He addressed each of the 10 factors the court must consider when deciding to grant a dismissal in the furtherance of justice.

According to motion papers submitted by Mr. Hourihan, “Under the landmark case People v Clayton, the court must consider 10 factors in exercising its discretion, which are now codified at CPL 170.40.” Those 10 factors include, “the nature of the crime, the available evidence of guilt, the prior record of the defendant, the punishment already suffered by the defendant, the purpose and effect of further punishment, any prejudice resulting to the defendant by the passage of time, and the impact on the public interest of a dismissal of the indictment.”

Mr. Hourihan went on to describe the defendants' community building work, exemplary personal records, and their advocacy for the poor and homeless in Rochester. He explained to the judge that on any given night, there are over 1,000 homeless men, women and children in shelters or sleeping on the street. He talked about the closing of the Civic Center Garage and how on average 30 to 50 people had used it as shelter on any given night. When it closed, they too were pushed into the cold with few if any options. As he started in on the statistics, like Rochester is the fifth poorest city in the country, second poorest among comparably sized cities, and its school district os the poorest in Upstate New York and the entire state, the judge interrupted him and told him to stop.

“I don't need you to quote me the statistics,” said Judge Morse. He said that he had seen the reports and read the brief submitted by Mr. Hourihan.

“I would submit,” said Hourihan, “based on these facts, that the charges against my clients should be dismissed.”

Assistant Monroe County District Attorney Shani C. Mitchell, representing the people of New York, said, “This case is about the law—the defendants were given the opportunity to voice their displeasure regarding the closure of the Civic Center Garage. When they didn't get their way, they began to roam the halls of the building. They were asked to leave. They refused to do so.”

ADA Mitchell said that the defendants refused to take a plea deal in the form of adjournment in contemplation of dismissal (ACDs). “We need confidence in the criminal justice system,” she said. “If this case is dismissed, then every other social justice issue can be argued in the same way with the same outcome and people would get off without any consequence for their actions.”

Judge Morse raised the names of some historical social justice figures like Henry David Thoreau, Nelson Mandela, Dr. Martin Luther King Jr. and others. He recalled that being a child of the 1960s he had had some experience with social justice causes. “I did a little of my own legwork back then,” said the judge. “None of us expected to get a pass.” He then questioned Mr. Hourihan as to why an ACD wasn't sufficient for dismissal of the charges in six months rather than now with a dismissal in the furtherance of justice. “Why is not that an alternative?” he asked.

Mr. Hourihan restated the argument he had presented before the judge. No one was injured and no property was destroyed. The defendants were in a public building with legitimate business. In no way were they entering fenced off property where they were explicitly unwelcome. No deception or deviousness was used. The defendants were not at the county building acting for their own benefit, but rather, they were there to advocate for the homeless. Mr. Hourihan spoke about the different reasons people find themselves homeless. He talked to the judge about the defendants' moral and ethical imperatives to act on behalf of the homeless and the poor who are seen by those in power as a nuisance or worse. “The larger conduct is important,” he said.

The judge then asked ADA Mitchell, “What's the difference? Why not do this today, rather than wait six months? The outcome is the same, the charges are dropped.”

ADA Mitchell responded by saying, “We offered the ACDs to give us six months to see if the defendants have any more problems with the law. It gives the people the right to bring the charges back.”

Judge Morse concluded the hearing letting both sides know that they had till that Friday to turn in any more supporting documentation. He would either make a decision and rule on the matter in February or they would set a trial date.

The three are due back in Judge Thomas Rainbow Morse's court on February 2, 2015 at 9:30AM for his ruling on the motions and the setting of a potential trial date.

Timeline of events:

Date:	Event:
February 2, 2015	This is the defendants' next scheduled court date before Judge Thomas Rainbow Morse. The judge stated on January 6 that he would decide on the motions and set a trial date if needed.
January 6, 2014	Sister Grace Miller, Tom Malthaner, and Ryan Acuff attended a motions hearing before Judge Thomas Rainbow Morse regarding their criminal trespassing charges from September 15, 2014.
December/January 2014/2015	The City of Rochester claimed it had to “remove” Sanctuary Village because it was a health and environmental hazard. Commissioner Norman H. Jones called it an “unheated cesspool of filth, hypodermic needles and human waste and urine.” A “testy exchange” between Mayor Warren and a man from Chili was had; the Mayor's office said that her Twitter and Facebook accounts had been hacked and denied that she wrote the texts. Jenny Brongo filled a dump truck with hope (video coming soon!)—full of goods for the homeless—and delivered it to them at Sanctuary Village. The House of Mercy put out a call for funds so that they could buy a building to house the overflow of homeless people. The organization brought in over $80,000 to develop, staff, and fund a new shelter. People dropped off coffee, food, a Christmas tree, clothing, jackets, blankets, sleeping bags, and so much more. There was an astounding response from every day people who reached out to help. Ken Glazer donated a temporary building for shelter on Canal Street. Final renovations are being done on the Glazer building and people hope to move into it by the end of January.
December 20, 2014	Sometime around 10:30AM, a Bobcat front loader, around twenty-five workers from the City of Rochester's Department of Environmental Services, a roll-off dumpster, a rather large, yellow bulldozer, and a bunch of city trucks arrived with orders to destroy Sanctuary Village and clear the land. Commissioner Norman H. Jones of the Department of Environmental Services for the City of Rochester arrived to oversee how things were going. At one point he told a group of stunned people arriving with goods to drop off that the belongings of the homeless were being put into a “roll-off storage container” and preserved. Rochester Indymedia was on the scene during the destruction. Nothing was saved. The director of the Bureau of Operations and Parks, Karen St. Aubin, was also on the scene and refused to talk to the media. City officials and workers left around 4:00PM with most of Sanctuary Village hauled off in a dumpster. The personal belongings and identification cards of the homeless were destroyed. The video of the destruction went viral The City of Rochester received a lot of bad publicity five days before Christmas. That night, Sanctuary Village was re-created in the same spot.
December 19, 2014	Social workers and shelter representatives came to Sanctuary Village in the evening offering people a warm shelter for the cold night ahead. A couple of Rochester Police Department officers mingled with the crowd. Of the 35 or so people there, all but seven went to a warm shelter for the night. People were told that this was temporary and that they were free to come back the next day. There was also, at least, a tacit understanding among some of those gathered that they may have to relocate by December 28, 2014.
November 2014	The Coalition of Concerned Residents of Monroe County continued to meet every Monday to discuss strategy and next steps. Eventually, the City of Rochester asked Sanctuary Village to move to the east side of the Frederick Douglass-Susan B. Anthony Memorial Bridge. The village vacated Washington Square Park and moved under the bridge. Also in November, Sister Grace Miller and Harry Murray participated in a panel discussion titled: Vulnerable Populations/Critical Populations: The criminalization of poverty, homelessness, and dissent; Cheri Honkala, from the Poor People's Economic Human Rights Campaign, spoke in Rochester at a panel discussion titled, Stories of Survival & Resistance.
October 20, 2014	Sanctuary Village (a tent city for people without housing) was created in Washington Square Park in downtown Rochester, NY as a protest against the city's and county's lack of action regarding the homeless emergency.
September 15, 2014	Housing advocates demonstrated at the Monroe County Building. They demanded a meeting with County Executive Maggie Brooks. Sister Grace Miller, Tom Malthaner, and Ryan Acuff eventually moved to the second story of the building to see if they could reschedule their abruptly canceled meeting with Commissioner Kelly Reed from September 9 after being stone-walled by the head of Public Safety for Monroe County David Moore. The three were arrested and charged with criminal trespass in the third degree. They were arraigned the next day. All plead not guilty. Another open letter was published explaining the arrests. One section reads, “You cannot put handcuffs on the spirit of compassion, generosity, and justice.”
September 9, 2014	Another open letter was published by the Coalition of Concerned Residents of Monroe County alerting the community to the fact that Monroe County had abruptly called off a scheduled meeting that was to have happened with homeless advocates and seven county officials. According to the letter, “The County claimed that it was unnecessary to meet and there were no plans to reschedule. Commissioner Reed claimed she would send Sister Grace Miller from the House of Mercy two links to outside funding sources missing the whole point of the meeting (To date, those links were never sent).”
August 26, 2014	The Coalition of Concerned Residents of Monroe County published an open letter to the Monroe County and New York State reminding the county of its obligation to homeless people under Article 17 of the New York State Constitution. Part of the letter read, “We implore you to reverse the lock out of homeless persons from the Civic Center Garage until Monroe County puts into place a permanent plan to house all homeless.” The letter notes that Commissioner Kelly Reed acknowledged that the shelters are “often full.”
August 20, 2014	After 30+ years of the Civic Center Garage being used as a de facto temporary emergency shelter, the LDC decided to enforce measures to keep homeless people out. A group of advocates demonstrated against the closure by conducting a sleep-in for nearly a week.
January 9, 2014	Monroe County attempted to close the Civic Center Garage to homeless people during one of the worst winters in Rochester history; advocates, supporters, and homeless people showed up at the local development corporation (LDC) meeting (the group that runs the garage) demanding that they stop this immoral action.

Court documents: (Read the affidavits from the defendants and check out the memorandum of law submitted to the court motioning for a dismissal of the charges in the furtherance of justice.) court documents re: homeless advocates

TAKE ACTION: Donate to A Home for Sanctuary Village (help purchase a house for the homeless with House of Mercy) | Sign the petition! HALT THE EVICTION AND SUPPORT THE HOMELESS OF SANCTUARY VILLAGE IN ROCHESTER, NY