Motion to dismiss charges against homeless advocates denied

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Submitted by T. Forsyth on Tue, 2015-02-03 09:28

City Court Judge Thomas Rainbow Morse denied the motion of three homeless advocates to dismiss their charges in the furtherance of on justice. Sister Grace Miller, Tom Malthaner, and Ryan Acuff were charged with criminal trespass in the third degree after being 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.

On Monday, February 2, 2015, the courtroom slowly filled as court got underway. The weather was less than cooperative, meaning some supporters were not able to get to court, as a half a foot to over a foot and a half of snow fell over the greater Rochester area the previous evening and would continue throughout the day with gusting winds and white-out conditions.

Sister Grace wasn't even sure if court would be held because of the weather.

However, the wheels of what passes for “justice” didn't stop on account of bad weather.

The case against homeless advocates, Sister Grace Miller of House of Mercy, Tom Malthaner of St. Joseph's House of Hospitality, and Ryan Acuff of House of Mercy, got underway at 9:51AM. The judge wasn't able to send his written decision to the attorneys that morning because he said he was busy “digging out his driveway,” as many of those present were also doing before court.

Sister Grace and Mr. Malthaner approached the judge with their lawyer. The judge asked where Mr. Acuff was.

“My client is in South America, your honor,” said Edward Hourihan, representing the three advocates. "He's on a mission of mercy."

“We're going to adjourn to a later date on this. I've denied the motion to dismiss the charges in the furtherance of justice,” said Judge Morse. “We need to set a date and figure out what's next; I believe the ACD [adjournment in contemplation of dismissal] is still on the table.”

Judge Morse said that he would rather deal with the case, than wait for Mr. Acuff's return as it wasn't fair to Mr. Hourihan's other two clients.

“Mr. Acuff has two weeks to come to court,” said the judge. “I will consider revoking his release and take him into custody if I do not see him in two weeks.”

The judge's voice began to rise as he focused on the fact that Mr. Acuff was not in his court and instead somewhere in South America. “That he would have the chutzpah to leave the country, rather than ask permission—if he's not here in two weeks I will issue a warrant for his arrest!”

“Sooner or later he's got to answer to me!” growled the judge.

Mr. Hourihan and his clients said nothing to agitate the judge further.

“If he does not return in 30 days, he will be charged with bail jumping!” The judge went on, “I am not at all pleased that Mr. Acuff believes himself to be above the law.”

With regard to one being "above the law," Judge Morse's anger at Mr. Acuff and his ideal of the law doesn't seem to mold evenly when it comes to Monroe County and the City of Rochester and their lack of action regarding the homeless. The county has denied its legal responsibility to the poor and homeless, as stated under Article 17 of the New York State Constitution. The City of Rochester completely demolished a homeless encampment—Sanctuary Village—on December 20, 2014 and destroyed individuals' personal belongings. Yet, when homeless advocates demanded that the county abide by the laws governing it and reschedule a meeting they had abruptly canceled without reason and also demanded that the individuals responsible for the destruction of other peoples' shelter and property be held accountable, the so-called law didn't apply. County and city officials were suddenly “above the law.” No one was held responsible. No arrest warrants have been issued. No court dates have been scheduled for their crimes. The double standard is stark.

But I digress.

The judge concluded his admonition with, “We all make our choices and those choices have consequences.”

Judge Morse then noted that the charge of criminal trespass in the third degree “may be insufficient on its face as the building was not fenced off and closed.” He acknowledged another lawyer in his court who had brought the case of People v. Moore to his attention.

The charge was reduced to trespass, a violation, for the three defendants.

The defendants, two of them at least, are due back in Judge Thomas Rainbow Morse's court on Monday, February 9, 2015, at 9:30AM. Mr. Acuff has two weeks to come to court or a warrant for his arrest will be issued. If he does not come back to court in 30 days, the judge is considering adding a bail jumping charge to his case, a misdemeanor.

The case was adjourned until the following Monday.

After court, Mr. Hourihan appraised the situation with 10 or so supporters. “We have some options. We can file new motion papers to have the reduced charges dismissed or we can take the six month ACD. I want to see his decision on the motion before we make any decisions.”

“I feel like we got a lot of milage out of this case. We have a lot of work to do and we don't need to be stuck in court,” said Sister Grace.

Those gathered outside of Judge Morse's court quietly dispersed.

See below for a timeline of events, court documents, what you can do, and related stories. When Rochester Indymedia receives the court's decision regarding the judge's denial of the motion to drop the charges in the furtherance of justice, we will share that document here.

Timeline of events:

Date:	Event:
February 9, 2015	The defendants' next scheduled court date before Judge Thomas Rainbow Morse, 9:30AM.
February 2, 2015	The motion to dismiss the charges in the furtherance of justice is denied by Judge Thomas Rainbow Morse. Ryan Acuff is out of the country and has two weeks to get back to court or a warrant for his arrest will be issued; if Mr. Acuff is not back in 30 days, the judge is considering adding the charge of bail jumping to his case. The charge of criminal trespass in the third degree, a misdemeanor, has been reduced to simple trespass, a violation.
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