Homeless advocates take ACDs—Mr. Acuff tasked with clean-up under the bridge

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Submitted by T. Forsyth on Tue, 2015-03-10 09:11

Sister Grace Miller of House of Mercy and Tom Malthaner of St. Joseph's House of Hospitality stood before Judge Thomas Rainbow Morse on February 9, 2015 and accepted what are commonly referred to as ACDs or adjournments in contemplation of dismissal. The third defendant in the case, Ryan Acuff also of House of Mercy, came back to court on March 2, 2015 and accepted an ACD with the condition that he clean up or organize an effort to clean up the garbage left under the Frederick Douglass / Susan B. Anthony Memorial Bridge where Sanctuary Village used to stand. He had been in South America working with social justice movements when he was summoned back by an angry Judge Morse after he was assured by his attorney, Edward Hourihan, that he could leave the country.

Sister Grace, Mr. Malthaner, and Mr. Acuff were charged with criminal trespass in the third degree after being arrested on September 15, 2014, in a second floor office of 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.

The charge was reduced to simple trespass for the three defendants at their February 2 hearing. According to Judge Morse, because of the reduced charge, the defendants should not have been fingerprinted. The judge stated at the February 9 hearing that the fingerprint evidence would be expunged from the defendants' records.

All three ACDs are for a six month period.

ACDs are not guilty pleas nor are they proofs of innocence. According to Wikipedia, ACDs “may be offered to a defendant in the interests of justice with a view toward ultimate dismissal of the charge. The judge usually adjourns the case for a period of six months (sometimes a year) after which time the case will be dismissed as long as the defendant has stayed out of trouble [like not getting arrested within that six month period]... It is neither a form of probation, nor a conviction.”

According to The Warshawsky Law Firm Blog based in New York City, “...the weight of authoritative opinion holds that an ACD does not affect a person's right to sue the police for false arrest, false imprisonment, or excessive force.” The blog cites case history to back up it's claim: Hollender v. Trump Village Coop., Inc.; Singer v. Fulton County Sheriff; and Graham v. People.

The blog continues, “The only claims that an ACD defeats are claims that require the plaintiff to show that a criminal proceeding was terminated in his favor. This includes malicious prosecution.” More case law is cited: Daniel v. Safir. “Therefore, a person who accepts an ACD can sue the police for arresting and imprisoning him, but may not sue the police for prosecuting him.”

The Decision

At the February 9 hearing, the judge had a written decision ready and gave it to the defendants. Mr. Acuff got his copy when he returned to Rochester.

When considering a dismissal in the furtherance of justice motion, he noted in his decision that “any disposition short of a trial will leave the question of what really happened unanswered, since a court does not rule on the accuracy of facts in an accusatory instrument” in such a motion. He wrote, “It remains an extraordinary remedy which necessitates that a judge undertake 'a sensitive balancing of the interests of the individual and of the People,'” when considering accepting a motion to dismiss charges in the furtherance of justice.

The judge also noted that the accusatory instrument might have been insufficient on its face based on the way the law was written. Specifically, the judge noted that at the time of the defendants' arrests, the “building was not 'fenced or otherwise enclosed in a manner designed to exclude intruders.'” He also noted that neither the people nor the defendants made any motion or amended the charges in regards to dismissing the accusatory instrument on that basis. The judge wrote that the defendants' argument “loses much of its force when any conviction would be no more serious than a speeding ticket.”

With regards to the character of the defendants and their arrests in the county building as they attempted to find alternative shelter space for the homeless, the judge wrote, “Their history of selfless acts speak volumes about their commendable behavior.”

The judge wrote about the activism of Dr. Martin Luther King, Jr. and how civil disobedience has long been a part of “the fabric of our society.” He noted that this case was not one which, “cries out for harsh punishment should a conviction result from trial after rejection of the People's ACD offer.”

Farther down, he noted that the defendants could have gotten their meeting via a “reasonable alternative”—namely, “to send a certified letter to the county official with whom they wished to meet with an enclosed copy of the entire letter they claim to have received from the county which declared a meeting with advocates 'unnecessary.'” He also noted that if their goal was to make a media spectacle, they could have provided a “letter to various media outlets” outlining what happened and their disapproval.

The judge may or may not have had the ability to mention the history of this conflict in attempting to get the county and city to do its part to stop homelessness. In his decision, Judge Morse offers two alternatives that got advocates nowhere fast. As it was, the county and the city had been playing a cat and mouse game with homeless advocates since at least January 9, 2014—nine months before they were finally arrested when they had had enough. Two of the defendants refused to leave the office on September 15^th until a new meeting was scheduled and the third was arrested as he was complying with the officer's orders, according to the defendants' affidavits. The actions advocates had taken in that nine month period included public letters, media events, demonstrations, meetings, and the everyday work that goes into finding shelter and helping to meet the needs of a vulnerable group of people that the city and county had displaced and ostensibly discarded.

The judge noted in the next paragraph that, “Such sincere acts of peaceful civil disobedience are a part of our democratic heritage, as is respect for the rule of law. While granting immediate dismissal might strengthen the former, it could seriously weaken the latter in cases involving broad social issues... .”

I wonder if the law doesn't weaken itself when one looks at the out of control policing in this country, the #BlackLivesMatter movement that pushes back against law enforcement violence, and the recent Justice Department findings with regards to the police department of Ferguson, MO. One could extrapolate, based on anecdotal and limited data that is available, that similar statistical findings might be found here in Rochester, NY and in cities across the country.

Beyond that, we could look to the December 20, 2014 decision by the city to bulldoze the personal belongings and tents of homeless people who were stranded under the Frederick Douglass / Susan B. Anthony Memorial Bridge. A crime was committed there, protected by Rochester Police Department officers and facilitated by city officials. Nothing was done to prevent or hold accountable the officials involved in that conspiracy to deprive homeless people of their possessions and their tents. That conspiracy between Norman Jones, Karen St. Aubin, and the officers who watched and allowed this criminal action to take place on that cold December day under the bridge is in need of investigation, accountability, and meaningful justice.

Democracy is in short order when profits and power trump the rights of people. It's not the law we need worry about here, it is the continued atrophy and deterioration of our so-called democracy.

The judge continued by noting that case law in New York State supports his ruling and that to be a competent judge that the community respects, he must be independent and impartial—not taking sides on a societal issue that is being debated. He denied the motion to dismiss the charges in the furtherance of justice.

You are more than welcome to read the full decision.

February 9, 2015

After the two defendants formally accepted the State's offer of an ACD on February 9, 2015, Judge Morse said, “The case is adjourned on ACD. Six months from today's date it will be dismissed in the furtherance of justice. These cases are resolved.”

The judge then gave some wiggle-room for Mr. Acuff's impending return to Rochester after publicly admonishing him.

“Mr. Acuff is not above the law,” said the judge. “He does not run my court.”

Mr. Hourihan pled to the court, “It would be a considerable expense to have him come back on such short notice, your honor. I request that his presence be waived recognizing that the court was not happy with his non-appearance at the last hearing.”

Judge Morse responded, “I will not sign a warrant for his arrest at this moment. However, if he's not here on the 17^th [of February], then it's debatable if Homeland Security will let him into the country.”

“I understand, your honor,” said Mr. Hourihan. “He doesn't think he can catch a plane in time to be here by the 17^th but he could definitely be in court on March 2^nd.”

“By putting you in the middle of this, it is going to cost him,” said the judge.

“Do you mind if I contact my client and see how soon he can get back?” asked Mr. Hourihan.

Judge Morse said he didn't mind but the court date would be listed as February 17^th with the possible latest date being March 2^nd. Mr. Hourihan acknowledged the judge's time table and said he would be in touch with both Mr. Acuff and the court as soon as possible.

Finally, Mr. Hourihan complimented the court's written decision in the case. “Your honor, I also wanted to compliment you on your written decision. I thought it was very well thought out, written, and fair—even though we disagree with the final ruling. Thank you.”

Judge Morse acknowledged the compliment and thanked his staff as well for their help with the research.

After court, Sister Grace said about the case, “I think our arrests did what we wanted them to do. The fact that we got what we wanted it turns out—helping the homeless—that's our objective.”

Mr. Malthaner said, “The homeless situation is not over and we're really concerned with what happens after April 30, 2015.” April 30^th is the date when Sanctuary Village is to move out of their temporary Canal Street warehouse space that was donated for the winter by Ken Glazer.

Both Sister Grace and Mr. Malthaner expressed their thanks to the community for all of its generosity and vowed to continue the fight to end homelessness in Rochester.

Sister Grace Miller and Tom Malthaner react after court

Sister Grace & Tom Malthaner react to ACDs (2/9/15)

Video of Sister Grace &amp; Tom Malthaner react to ACDs (2/9/15)

March 2, 2015

Mr. Acuff's hearing was set for March 2, 2015. He was able to find a way back to Rochester from Ecuador shortly before his case was heard.

I got to court a little late that morning and missed the fireworks that the judge dished out to Mr. Acuff. I asked him what transpired the first time his case was called.

“The judge made it clear that he was upset that I was in South America, while he was very cold in Rochester, NY,” Mr. Acuff said after court. “He was under the impression that nobody was notified so he took it as disrespect to the court, which was not the case.” He went on, “We notified the proper parties but somewhere there was some miscommunication.”

The miscommunication was explained to the judge by Mr. Acuff's attorney, Abigail Norris, who was substituting for Mr. Hourihan.

Before dismissing the case until later that morning, Judge Morse let Mr. Acuff know that the six month ACD was still on the table. However, presumably, after the judge read an article written by David Andreatta in the Democrat & Chronicle from February 27, 2015 complaining about garbage under the bridge where Sanctuary Village had been, he made the ACD conditional upon Mr. Acuff taking responsibility for cleaning it up—promptly.

After court, Mr. Acuff elaborated on the Andreatta article. “The fact that this was in the paper about the bridge—the media has latched onto this as one of the main issues. It keeps following up and most of the stories are very positive. So much awareness has been raised.” He continued, “And even more importantly, concrete action has been taken. The fact that a new shelter was opened up when everybody said it couldn't be done, shouldn't be done, “We don't need a new shelter,”—obviously we do. It's absolutely packed every night. Potentially we've not only bettered many peoples' lives, but we've potentially saved lives.”

I eventually made it to court and witnessed the second time that morning that Mr. Acuff stood before Judge Morse.

The judge seemed relaxed and held a sidebar with Mr. Acuff's lawyer, Ms. Norris, and Shani Mitchell, the Assistant District Attorney.

After the sidebar, the judge explained the conditions of the ACD for Mr. Acuff and noted that a city representative happened to be available to get a dumpster to the site to clean up the garbage.

When Ms. Norris asked how the court wanted proof that the garbage was picked up, the judge replied, “I'll take his word that he's going to do it.”

Judge Morse then thanked the city representative for her help and acknowledged that even as Mr. Acuff was waiting to be called up again, he was busy figuring out how and when the garbage would be cleaned up that day.

The judge also noted, in Mr. Acuff's presence, that his criminal trespass charge had been reduced to simple trespass, a violation.

The process was swift and ended without fanfare.

Andreatta from the Democrat & Chronicle, who wrote about garbage under the bridge, wrote a follow-up piece on the same day that Mr. Acuff accepted his conditional ACD noting that the garbage from the former encampment was “picked up.”

When asked how he felt now, Mr. Acuff said, “I feel relief that's it's over.”

Ryan Acuff reacts after court

Ryan Acuff reacts to his ACD (3/2/15)

Video of Ryan Acuff reacts to his ACD (3/2/15)

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:
March 2, 2015	Ryan Acuff, the last of the three defendants, stood before an angry Judge Thomas Rainbow Morse for his absense from court. Mr. Acuff takes the ACD offered him by the district attorney on the condition that the garbage left under the Frederick Douglass / Susan B. Anthony Memorial Bridge where Sanctuary Village used to stand is picked up.
February 9, 2015	Sister Grace Miller & Tom Malthaner take ACDs. Their cases are dismissed. Judge Thomas Rainbow Morse demands that Ryan Acuff appear in court on sometime between February 17 and March 2.
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.