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People v Buckley

[*1] People v Buckley 2013 NY Slip Op 50137(U) Decided on January 10, 2013, Buffalo City Court Fiorella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2013
Buffalo City Court

The People of the State of New York, Plaintiff,


Nathaniel J. Buckley, Defendant.

Hon. Frank A. Sedita, III, Esq., Erie County District Attorney

Susan H. Sandinsky, Esq., of Counsel, for the People

Daire B. Irwin, Esq. and Michael Kuzma, Esq., Attorneys for Defendant

Joseph A. Fiorella, J.

Upon review of the Defendant's Motions to Dismiss in the furtherance of justice, sworn to the 31st day of August 2012 and the 7th day of November 2012; affidavit of Kevin Kreutzer, sworn to the 6th day of November 2012; affidavit of Zach Jaworski, sworn the 5th day of November 2012; and numerous letters of support and other papers; all in support of Defendant's motion; the People's responding affidavit of ADA Susan H. Sadinsky, sworn to the 12th day of September 2012; the supplemental affidavit of ADA Susan H. Sadinsky, sworn to the 11th day of October 2012; the reply affidavit ADA Susan H. Sadinsky, sworn to the 27th day of November 2012, all in opposition thereto; and upon hearing oral arguments on the motion the 24th day of September 2012, and allowing for adjournments for counsel submissions.

Procedural History

Defendant was arrested on April 8, 2011, and arraigned on April 15, 2011, on the following charges: PL §§ 240.05 — Riot in the Second Degree; 240.08 — Inciting to Riot; 240.10 — Unlawful Assembly; 240.20 (1,2,3,6,7) [*2]— Disorderly Conduct; 195.05 — Obstructing Governmental Administration in the Second Degree; 205.30 — Resisting Arrest; and 140.05 — Trespass.

On May 5, 2011, the People on their own motion dismissed the following charges §§ 240.05, 240.08, 240.20 (1,2,3,7). On or about June 8, 2011, the People filed a Superseding Information, charging PL §§ 240.20(6), 195.05, 205.30, and 140.05.

The Court granted Defendant's Motion to Dismiss PL § 240.20(6) on August 9, 2011. On September 19, 2011, the Court conducted a Wade/Huntley hearing. On October 13, 2011, a city-only jury trial was scheduled for January 9, 2012, which was subsequently rescheduled. Trial was set for May 29, 2012, and then adjourned until June 4, 2012. Dual trials were held simultaneously for Defendant Nathaniel Buckley and co-Defendants Elliot Zyglis and Jason Wilson (PL § 140.05) on June 4. The jury trial as to Defendant Buckley, charging violations of PL §§ 195.05, 205.30, and 140.05 ended in a mistrial due to juror misconduct on June 14. Co-defendants Elliot Zyglis and Jason Wilson were found not guilty of Trespass after their nonjury trial before me.

A pretrial conference was held on July 10 wherein defense attorney Leigh Anderson was relieved as counsel and replaced by Daire B. Irwin and Michael Kuzma, jury selection was scheduled for October 16.

On August 31, the Defendant filed a Motion to Dismiss in the furtherance of justice, which the Court will now decide. The Court finds the following:

With regard to the charge of Obstructing Governmental Administration in the Second Degree, the Information, in pertinent part reads: on April 8, 2011, at approximately 6:30 PM, at the M & T Bank, 3 Fountain Plaza, Buffalo, New York and on the public sidewalk, adjacent to 3 Fountain Plaza, the defendant congregated in a public place and refused to comply with the lawful order of the police to disperse. NFTA responded to a report from the bank security that several dozen protestors were outside the bank. The protestors were advised by bank security that they should leave the bank's private property. The defendant refused even after being told that a criminal complaint for trespass would be filed against him. The police told the defendant that he was on private property and would have to leave. Defendant refused to leave and begin to chant "F ** k no, we won't go" and "This is what a police state looks like." The defendant was told once again that he was trespassing and ordered to "move along." Defendant eventually moved from the bank's private property onto the public sidewalk. Police Officer Richard Russo was pursuing another protester when the Defendant stepped directly in front of the officer impeding his physical movement. The defendant was advised to move out of Officer Russo's way, but he refused to do so.

With regard to the charge of Resisting Arrest: while Officer Russo attempted to place the Defendant under arrest for Trespass, Disorderly [*3]Conduct and Obstructing Governmental Administration, the Defendant attempted to flee, struggled with the officer and broke free and began to flee. In their attempts to capture the Defendant, he engaged in a physical altercation with the officers and grabbed Russo's arm with his left hand, refused to let handcuffs be placed on him, and when apprehended did fight with the arresting officers. The Defendant had to be forcibly subdued and cuffed.

With regard to the charge of Trespass: the Defendant knowingly entered, or remained unlawfully on the premises of M & T Bank. The supporting depositions of Jacqueline M. Jackson and Adam Rees of Allied Barton Security Services, specifically state that both are "authorized to maintain order and security on the bank's premises. They are authorized to exclude members of the public from bank property."

The Defendant in his Motion to Dismiss argues: Point one, that the Defendant has spent his entire life fighting for justice on behalf of others. Point two, that he never trespassed on private property, but rather was exercising rights afforded him under the federal and state constitutions. Point three, that this case should never have been brought.

The People in opposition assert that Defendant's motion is untimely, in that this motion should have been made within 45 days after arraignment; and further, the Defendant has failed to demonstrate good cause to explain his failure to timely file the motion.

CPL § 255.20 (1),(3), provides in pertinent part:

"[A]ll pre-trial motions shall be served or filed within forty-five days after arraignment and before the commencement of trial, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits. Any other pre-trial motion made after the forty-five day period may be summarily denied.

Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at any-time before the end of the trial, and appropriate pretrial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two."

The Fourth Department has stated that "a trial judge . . . is authorized to entertain and determine at any time before sentence a motion to dismiss the indictment in furtherance of justice pursuant to CPL 255.20(3) (People v. [*4]Weaver, 112 AD2d 782 [4 Dept 1985]; see also People v. Newton, 30 Misc 3d 1204(A) [2010]).

The People contend that the Defendant failed to demonstrate good cause. This Court finds that this contention lacks merit. As the Defendant argues, and this Court agrees, the People failed at trial to proffer proof, beyond a reasonable doubt, sufficient to convict.

"Motions for dismissal in the interests of justice are addressed to the sound discretion of the court and must be evaluated in light of the factors enumerated in CPL 170.40(1)" (People v. Shaugnessy, 168 Misc 2d 53 [1996]). The Court must state on the record the basis for dismissal and is not required to state which of the factors, (a) through (j) is relied on (People v. Rickert, 58 NY2d 122 [1983]).

"Dismissal should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations" (People v. Belge, 41 NY2d 60, 62 1976]).

The People assert that there are no compelling reasons to justify a dismissal of the charges under CPL 170.30. This Court disagrees. CPL

§ 170.40 lists ten factors to be considered in concluding if a dismissal is warranted in the furtherance of justice and provides:

1. An information, or any count thereof, may be dismissed in the interest of justice, as provided in paragraph (g) of subdivision one of section 170.30 when even though there may be no basis for dismissal as a matter of law upon any grounds specified in paragraphs (a) through (f) of said subdivision one of section 170.30, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character, and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest, and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence [*5]authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

2.An order dismissing an accusatory instrument specified in subdivision one in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.

The Defendant was one of several people protesting M & T Bank's involvement in the war-related activity. Several were standing on the brick wall located on Fountain Plaza. The open-air area is designed for the public's use for numerous year-round activities. There are no enclosures to prevent public access nor is the area posted as private property. At trial, the bank's deed was the only tangible document put into evidence to establish the People's contention that the subject area was private property belonging to the bank. There was nothing, however, on the deed that substantiated that claim. A survey of the property would have delineated the bank's property boundaries, but the People failed to produce any such survey.

Even if this area was private property, the People failed to offer any evidence that the Defendant, as a member of the public, had any knowledge as to private versus the public status of the property. For instance, in New York City at Rockefeller Center, a private street called Rockefeller Plaza is situated between the RCA Building and the sunken skating rink. In order to preserve Rockefeller Center's right of ownership of the street, each year the street is closed to all traffic, even pedestrian, for one day to assert its continuing status as private property (see Dukeminier & Krier, Property (4th Ed. 1998) p. 814, fn. 14.). Here in Buffalo, M & T Bank has made no such similar effort. For more than thirty years, the public has used Fountain Plaza with no limitation. The Bank has made no effort to assert its claim that the subject area is private property nor made any effort to so inform the public. [*6]

Therefore, it was the finding of this Court, that the People had failed to establish beyond a reasonable doubt that Fountain Plaza is private property.

As a result, the Court, as the trier-of-fact, found Wilson and Zyglis not guilty. With regard to Defendant Buckley, during the deliberation stage of his jury trial, it was learned that there had been juror misconduct and a mistrial was declared. Since this Court has determined that the People failed to meet their burden of proof beyond a reasonable doubt at the bench trial as to the charge of Trespass against his co-Defendants, it would be a travesty of justice to find that the same proof would have been sufficient to convict Defendant Buckley.

In addition, the Court is troubled by the actions of the NFTA. A crucial element of the charge of Trespass is missing here. In order to be found guilty, the People are required to prove that "a person who, regardless of his intent, remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to remain, personally communicated to him by the owner of such premises or another authorized person." Here, after being ordered to leave, Buckley complied and went onto the public sidewalk, thereby precluding any finding of trespass. The initial encounter between Buckley and the police officers had ended. But the bank's surveillance video shows that officers followed the Defendant onto the public sidewalk. Officer Adam Brodsky grabbed the Defendant, and when he struggled, Officer Brodsky hit the Defendant with his nightstick. Even though the Defendant had been subdued against the wall and had stopped struggling, Officer Brodsky pepper-sprayed the Defendant in the face.

"While due process is a flexible doctrine, certain types of police action manifest a disregard for cherished principles of law and order. Upon an inquiry to determine whether due process principles have been transgressed in a particular factual frame, there is no precise line of demarcation or calibrated measuring rod with a mathematical solution. Each instance in which deprivation is asserted requires its own testing in the light of fundamental and necessarily general but pliant postulates. All components of the complained-of conduct must be scrutinized but certain aspects of the action are likely to be indicative, i.e., whether the police themselves engaged in improper conduct repugnant to a sense of justice or whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace (People v. Isaacson, 44 NY2d 511 [1978]; see also People v. Hirsch, 85 AD2d 902 [4 Dept 1981]).

This Court finds that the NFTA officers did engage in improper conduct which is repugnant to this Court's sense of justice. Officer Brodsky's motive clearly could not have been to prevent further crime or protect the populace since [*7]Defendant Buckley had left the private property and moved onto a public sidewalk free of pedestrians. It must be noted that the charges of Obstructing Governmental Administration in the Second Degree and Resisting Arrest flowed from the illegal actions of the NFTA Police after Defendant Buckley had left Fountain Plaza. Since there was no Trespass, the subsequent charges must also fall.

As to the seriousness and circumstance of the offense, prior to NFTA officers' escalation, only an alleged trespass had occurred. A mere violation, as trespass, does not rise to the level of a crime. The Defendant's goal that day was to exercise his First Amendment right to free speech, he had committed no crime.

As to the extent of harm caused by the offense, the Defendant caused no harm.

As to the evidence of guilt, as noted above, this Court found none.

As to the history, character, and condition of the Defendant, throughout Buffalo, he is known as a community activist involved in numerous organizations and causes. Prior to this court proceeding, the Defendant had one prior conviction of Petit Larceny in 2009 for which he received a conditional discharge. Due to this Judge's scheduled vacation, the parties were notified that the Court would be rendering its decision on the motion to dismiss in the interest of justice upon my return. During that interval, the Defendant was arrested on charges stemming from a vehicle and traffic violation. The People have asked that the Court reconsider its decision based on the new arrest, as it is their contention that the Defendant now poses a risk to the safety of the community.

The new arrest does not change the facts of the case before me. Whether the Defendant now poses a risk to the community will be decided in another Court. At this stage, the Defendant has only been charged and not convicted of a crime. Our system of jurisprudence dictates innocence until proven guilty.

It is hereby the Decision and Order of this Court that the Information, charging Defendant Nathaniel Buckley with Trespass, Obstructing Governmental Administration in the Second Degree, and Resisting Arrest is dismissed in the interest of justice with prejudice.

Matter of Bottom v Fischer

Matter of Bottom v Fischer 2015 NY Slip Op 05319 Decided on June 19, 2015, Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 19, 2015, SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
547 CA 14-01994






Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered December 26, 2013, in a CPLR article 78 proceeding. The judgment, insofar as appealed from, denied the petition in part.

It is hereby ORDERED that said appeal from the judgment insofar as it exempts from disclosure the May 16, 2012 letter is unanimously dismissed as moot, and the judgment is modified on the law by granting that part of the petition seeking reasonable attorney's fees and other litigation costs reasonably incurred by the petitioner, and as modified the judgment is affirmed with costs, and the matter is remitted to Supreme Court, Wyoming County, to determine the amount of such attorney's fees and litigation costs.

Memorandum: The petitioner commenced this proceeding seeking, inter alia, an order directing the respondent to comply with his request for documents under the Freedom of Information Law ([FOIL] Public Officers Law art 6). Respondent denied the petitioner's request and thereafter denied his administrative appeal in its entirety on the ground that the documents sought were exempt from disclosure pursuant to Public Officers Law § 87 (2) (a), (f) and (g). In a prior order, the Supreme Court directed the respondent "to provide petitioner's counsel with affidavits or other proof supporting the application of the specific exemptions for the information which was withheld." Respondent then disclosed the majority of the records requested. The court thereafter granted the petition to the extent that, with the exception of the May 16, 2012 letter to the Division of Parole from the New York County District Attorney's Office, the respondent was directed to provide access for inspection and copying redacted copies of those documents responsive to the FOIL request that had not previously been disclosed to petitioner's counsel.

At the outset, we note that inasmuch as petitioner has received a copy of the May 16, 2012 letter, his appeal from that part of the judgment exempting that letter from disclosure has been rendered moot (see Matter of Usatynski v Daines, 86 AD3d 914, 914-915). Contrary to the petitioner's contention, we conclude that the respondent was entitled to redact from certain documents the names of organizations that "if disclosed could endanger the life or safety of any person" belonging to such organizations (Public Officers Law § 87 [2] [f]; see Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875, affd 20 NY3d 1028, rearg denied 21 NY3d 974).

We agree with the petitioner, however, that the court abused its discretion in denying, without explanation, that part of his petition seeking an award of reasonable attorney's fees and other litigation costs reasonably incurred in this proceeding. The petitioner satisfied the prerequisites for such an award pursuant to Public Officers Law § 89 (4) (c). Inasmuch as the respondent ultimately provided all but one of the documents in the FOIL request, the petitioner "substantially prevailed" within the meaning of the statute (§ 89 [4] [c]; see Matter of New York State [*2]Defenders Assn. v New York State Police, 87 AD3d 193, 195-196; Matter of New York Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338). Further, respondent had no reasonable basis for its blanket denial of petitioner's request (see § 89 [4] [c] [i]). Indeed, the respondent's contention that it had a reasonable basis for denying access to all of the requested documents is belied by its release of the majority of those documents when the court directed it to justify their nondisclosure (see New York State Defenders Assn., 87 AD3d at 197). We conclude, therefore, that petitioner "has been subjected to the very kinds of unreasonable delays and denials of access' which the counsel fee provision seeks to deter" (Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 AD3d 1120, 1122). Thus, we modify the judgment by granting that part of the petition seeking an award of reasonable attorney's fees and other litigation costs reasonably incurred by the petitioner, and we remit the matter to Supreme Court to determine the amount thereof.

In the Matter of Michael Kuzma, as President of Friends of J.N. Adam, et al., Appellants, v City of Buffalo et al., Respondents.

—[*1] Richard J. Lippes & Associates, Buffalo (Richard J. Lippes of counsel), for petitioners-appellants.

Alisa A. Lukasiewicz, Corporation counsel, Buffalo (Leonardo D. Sette-Camara of counsel), for respondent-respondent City of Buffalo.

Andrew M. Cuomo, Attorney General, Albany (Lawrence A. Rappoport of counsel), for respondents-respondents Empire State Development Corporation, Dormitory Authority of State of New York and Office of Mental Retardation and Developmental Disabilities of State of New York.

Harter Secrest & Emery LLP, Rochester (Robert C. Weissflach of counsel), for respondent-respondent Thomas S. Trathen, as Managing Member of Trathen Land Company, LLC.

Appeal from a judgment (denominated order) of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered May 18, 2006, in a proceeding pursuant to CPLR article 78. The judgment, insofar as appealed from, granted those parts of the motion of respondents Empire State Development Corporation, Dormitory Authority of State of New York, and Office of Mental Retardation and Developmental Disabilities of State of New York to dismiss the first through third causes of action against them, granted the motion of respondent City of Buffalo to dismiss the SEQRA allegations against it and denied petitioners' cross-motion for summary judgment on the petition. [*2]

It is hereby ordered that the judgment insofar as appealed from being and the same hereby is unanimously reversed on the law without costs, the motion of respondents Empire State Development Corporation, Dormitory Authority of State of New York, and Office of Mental Retardation and Developmental Disabilities of State of New York is denied in part and the first through third causes of action against those respondents are reinstated, the motion of the respondent City of Buffalo is denied in its entirety and the first cause of action against that respondent is reinstated, the cross-motion is granted in part and the petition is granted in part by annulling the 1998 negative declaration, the resolution by the Common Council of respondent City of Buffalo approving the sale of its reversionary interest in the property in question and the contract for the sale of that property.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul two related administrative determinations. The first determination is a resolution by the Common Council of the respondent City of Buffalo (City) approving the sale of the City's reversionary interest in a 649-acre portion of a former State mental hygiene facility known as the J.N. Adam Developmental Center (Center) to the State of New York. The second is a determination by respondents Empire State Development Corporation (ESDC), Dormitory Authority of State of New York, and Office of Mental Retardation and Developmental Disabilities of State of New York (collectively, State) to enter into a contract for the sale of the Center to respondent Thomas S. Trathen, as managing member of Trathen Land Company, LLC (Trathen). In general terms, petitioners challenge the prospective sale by the City and State of their respective interests in the environmentally sensitive and historically significant Center to enable Trathen to log the heavily wooded property on which the Center is located, with no guarantee that the historic structures located on the property would be preserved. In the first through third causes of action of the petition, petitioners allege that both the City and the State violated Article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA]), and they further allege that the State violated Public Buildings Law § 63 (1) and (4) and PRHPL 14.09 (1) and (2).

Petitioners appeal from a judgment that granted the motion of the State for leave to reargue with respect to Supreme Court's denial of that part of its motion seeking dismissal of the first cause of action, alleging a SEQRA violation, and, following reargument, granted the motion of the State to dismiss the petition against it in its entirety. In addition, the court granted the motion of the City to dismiss the SEQRA allegations against it, denied the cross-motion of petitioners for summary judgment on the petition, and "ORDERED[,] ADJUDGED AND DECREED that the State respondents, upon their further SEQRA [review] and determination as to whether or not the conveyance of the Center to Trathen may have a significant impact on the environment, shall provide notice of their determination to Petitioners, and [shall not] transfer . . . title to the Center to Trathen . . . until after 15 days after the State respondents provide such notice." In dismissing the petition against the State, the court determined that the petition was a premature challenge to the State's non-final determination inasmuch as the State agreed after the commencement of this proceeding "to reopen the prior negative declaration and do a new SEQRA analysis," with notice to petitioners of "whatever determination is made." In addition, the State acknowledged that it must comply with its obligations pursuant to the Public Buildings Law and PRHPL by engaging in the statutorily required interagency "consultations" with the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP). Those commitments of the State stemmed from its belated realization that the Center is in fact eligible for inclusion on the State Register of Historic Places.

The court erred in dismissing as premature the first through third causes of action, alleging the violations of SEQRA, the Public Buildings Law, and PRHPL. In acknowledging that it has yet to comply with its obligations under those statutes, the State has failed to demonstrate [*3]that the challenged determinations are not final and that the first three causes of action are thus premature. Instead, the State has effectively conceded the invalidity of its determinations and hence the merit of those causes of action against it. In particular, the State has effectively conceded that the 1998 negative declaration cannot stand because it is based on erroneous information, i.e., that there is no historic significance to the Center and that the sale of the Center would have no impact upon cultural resources included in or eligible for inclusion in the State Register of Historic Places. Under the circumstances, it cannot be said that the State "identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination" of environmental nonsignificance (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363-364 [1986]). The negative declaration thus must be annulled (see CPLR 7803 [3]; see generally Matter of Kahn v Pasnik, 90 NY2d 569, 574 [1997]; Gernatt Asphalt Prods., 87 NY2d at 688; Akpan v Koch, 75 NY2d 561, 570 [1990]; Jackson, 67 NY2d at 417). The State also has effectively conceded that any minimal consultations between ESDC with OPRHP were inadequate to discharge the State's responsibilities under the Public Buildings Law and PRHPL (see Public Buildings Law § 63 [1], [4]; PRHPL 14.09; see also 9 NYCRR 428.8).

Rather than dismissing the petition against the State as premature, we conclude that the court should have granted the petition against the State in part, despite the fact that the State has not yet answered the petition (cf. CPLR 7804 [f]; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]). Where, as here, the dispositive facts and the positions of the parties are fully set forth in the record, thereby making it "clear that no dispute as to the facts exists and [that] no prejudice will result from the failure to require an answer," the court may reach the merits of the petition and grant the petitioner judgment thereon notwithstanding the lack of any answer and without giving the respondent a further opportunity to answer the petition (Nassau BOCES Cent. Council of Teachers, 63 NY2d at 102; see Matter of Laurel Realty, LLC, v Planning Bd. of Town of Kent, 40 AD3d 857, 860 [2007]; Matter of Intermor v Board of Trustees of Inc. Vil. of Malverne, 286 AD2d 330, 331-332 [2001]; Matter of Citizens Against Retail Sprawl v Giza, 280 AD2d 234, 240 [2001]).

The State's conceded failure to perform a valid review under SEQRA and to engage in the statutorily required interagency consultations warrants the annulment of the State's 1998 negative declaration and the concomitant determination of the State to enter into a contract for the sale of the Center to Trathen (see Devitt v Heimbach, 89 AD2d 920 [1982], affd 58 NY2d 925 [1983]; see generally Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 206-207 [1987]; Chinese Staff & Workers Assn., 68 NY2d at 369; Matter of Watch Hill Homeowners Assn. v Town Bd. of Town of Greenburgh, 226 AD2d 1031, 1033-1034 [1996], lv denied 88 NY2d 811 [1996]). As the Court of Appeals has stated, "[t]he suggestion . . . that [a SEQRA violation] can be cured by 'an amended negative declaration' . . . finds no support in the carefully drafted procedures of the statute and would effectively allow the [State] to comply with SEQRA . . . only as an afterthought following a successful challenge to [its] prior action" (Chinese Staff & Workers Assn., 68 NY2d at 369). Moreover, under the circumstances of this case, and in fairness to all parties concerned, the State's violation of SEQRA requires the annulment of the Common Council's resolution approving the sale of the City's reversionary interest to the State. We note that both the Common Council's resolution approving the conveyance of the City's reversionary interest and the formal reverter release executed by the Mayor are referable to the contract for the sale of the Center by the State to Trathen, which we have annulled herein, inasmuch as both refer to the 649 acres to be sold and to the City's receipt of 90% of the purchase price. Present—Gorski, J.P., Smith, Centra, Fahey, and Green, JJ. [See 11 Misc 3d 1061(A), 2006 NY Slip Op 50338(U) (2006).]

Richard D. KERN, Plaintiff-Appellant,


Frank J. CLARK, III, G. Michael Drmacich, and Barry A. Zavah, Defendants-Appellees.

1. Plaintiff-appellant Richard D. Kern appeals from the March 26, 2002, judgment of the United States District Court for the Western District of New York (William M. Skretny, Judge), dismissing, on Younger abstention grounds, his complaint against defendants-appellees Frank J. Clark, III, the District Attorney for Erie County, and Assistant District Attorneys G. Michael Drmacich and Barry A. Zavah.1 The complaint alleged that the defendants prosecuted Kern, a public watchdog, and activist, "in a crude attempt to inhibit [him] from exercising his rights under the First Amendment." The district court dismissed the complaint as barred by the Younger abstention doctrine. See Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir.1999) ("Under Younger[v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),] and its progeny, a federal court should abstain from exercising jurisdiction where three factors are present: (1) there is an ongoing state criminal proceeding; (2) the claim raises important state interests; and (3) the state proceedings provide an adequate opportunity to raise the constitutional claims.").

2. Kern argues that the district court erred by abstaining because the challenged state prosecution was brought in bad faith. See Younger, 401 U.S. at 49, 91 S.Ct. 746 (noting that abstention would be inappropriate where a criminal prosecution is "brought in bad faith or is only one of a series of repeated prosecutions"). We conclude that the district court erred by dismissing Kern's complaint as barred by Younger abstention without holding an evidentiary hearing to resolve factual disputes related to Kern's claim that he was being prosecuted in bad faith.


3. On June 6, 2001, the Erie County District Attorney's Office charged Kern with harassment, aggravated harassment, and stalking. The charges were based on a complaint filed by Charlie Flynn, Chairperson of the Erie County Independence Party, a Commissioner of the Buffalo Municipal Housing Authority, and a former Residency Officer for the City of Buffalo. The complaint alleged that: 1) Kern confronted Flynn twice during or right after public meetings; 2) Kern once stood outside Flynn's house, while Flynn's children were playing in the driveway; 3) Kern called Flynn at home and left messages on his answering machine three times, and left phone messages for Flynn at his office three other times; 4) Kern sent Flynn thirteen faxes at his office; and 5) during the personal encounters and phone messages Kern called Flynn a disgrace to the community and a liar, questioned Flynn's integrity, and told Flynn that he, Kern, was watching him.

4. On June 25, 2001, Kern filed the present complaint in the United States District Court for the Western District of New York, seeking a preliminary and permanent injunction prohibiting the Erie County District Attorney's office from prosecuting him based on Flynn's complaint. In his complaint, Kern alleged that he has been subjected to a series of bad faith prosecutions brought by the Erie County District Attorney's Office in order to "harass, oppress and punish [Kern] because of his vigorous and zealous advocacy under the First Amendment to the United States Constitution and Article One, Section Eight of the New York State Constitution." In addition to the pending prosecution, Kern alleged that he has been the subject of ten other criminal prosecutions, all stemming from his watchdog actions. Although two of those cases were "adjourned in contemplation of dismissal," which is neither a favorable nor an unfavorable disposition, see N.Y.Crim. Proc. Law § 170.55, Kern alleged that the remainder were resolved favorably to him. At least two were dismissed because the charging instrument was facially insufficient.

5. After Kern filed his complaint in federal court, the state criminal case and Kern's federal civil rights case proceeded simultaneously. On September 7, 2001, the Buffalo City Court issued an oral ruling, dismissing the criminal charges against Kern. However, judgment was not entered on this order until May 20, 2002. The Erie County District Attorney's Office filed a Notice of Appeal on June 3, 2002, and filed a brief on August 2, 2002. As of the time of oral argument in the present appeal, Kern had not yet filed his respondent's brief in the state criminal case and no date had been set for oral argument.

6. In the meantime, on October 9, 2001, the district court held a hearing on the defendants' motion to dismiss Kern's federal complaint. The court heard oral argument but did not conduct an evidentiary hearing. On March 25, 2002, the district court granted the defendants' motion to dismiss Kern's § 1983 complaint on Younger abstention grounds. On March 26, 2002, the district court entered judgment on that order. On April 25, 2002, Kern filed his Notice of Appeal from the district court's dismissal of his § 1983 claim.


7. "[A] plaintiff who seeks to head off Younger abstention bears the burden of establishing that one of the exceptions applies." Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.2002). This Court "review[s] the district court's findings of fact only for clear error, [but] whether those facts come within the ambit of ... the `bad faith' ... exception[] to the Younger abstention doctrine is a mixed question of law and fact that we must ... review de novo." Id. (internal citations omitted).


8. First, we note that it is unclear whether the district court applied the proper standard in its abstention decision. The district court stated that the issue before it was "whether the state criminal prosecution [was] brought in bad faith, or [was] only one in a series of bad faith criminal prosecutions." The Younger Court presented a slightly different formulation, i.e., whether a criminal prosecution is "brought in bad faith or is only one of a series of repeated prosecutions." Younger, 401 U.S. at 49, 91 S.Ct. 746 (emphasis added). However, whether the Younger Court's formulation means that there may be circumstances wherein Younger abstention would be inappropriate in a case involving a series of good-faith repeated prosecutions2 is an issue we are not faced with and do not decide. Generally, the subjective bad faith of the prosecuting authority is the gravamen of the exception to Younger abstention. See Diamond "D" Constr. Corp., 282 F.3d at 199 ("[T]he subjective motivation of the state authority in bringing the proceeding is critical to, if not determinative of, [the bad faith] inquiry."). In the present case, the fact finder could infer bad faith or improper motive if it credited the evidence that Kern claims demonstrate that the defendants aggressively prosecuted him in a string of weak cases brought on behalf of Kern's political enemies.

9. In any event, the district court erred by concluding, without holding an evidentiary hearing, that Kern "failed to demonstrate that Defendants have proceeded under anything other than a good faith belief that [Kern] ... violated the criminal statutes governing harassment, aggravated harassment, and stalking." "It is settled law in this Circuit that motions for preliminary injunctions should not be decided on the basis of affidavits when disputed issues of fact exist." Commodity Futures Trading Comm'n v. Incomco, Inc., 649 F.2d 128, 131 (2d Cir.1981) (citing Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977)). "The existence of factual disputes necessitates an evidentiary hearing ... before a motion for a preliminary injunction may be decided." Id.; cf. Distefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d Cir.2001) ("Where ... a court relies on pleadings and affidavits, rather than conducting a full-blown evidentiary hearing, the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant." (quotation marks omitted)).

10. In concluding that Kern had not established that the defendants acted in bad faith, the district court apparently relied upon the affidavits of defendants Drmacich and Zavah, which stated, in conclusory terms, that Kern was prosecuted in good faith. The district court did not address Kern's contention, or the evidence supporting that contention,3 that the defendants have repeatedly and vigorously prosecuted weak cases against him at the behest of politically-connected complainants. Moreover, the district court erroneously concluded that Kern does not "deny committing the actions alleged in the criminal information," despite the fact that Kern submitted an affidavit on September 20, 2001, in which he specifically denied committing a number of the actions alleged in the current criminal information.

11. Thus, the district court erred by resolving factual disputes relevant to the "bad faith" determination without conducting an evidentiary hearing.


12. For these reasons, the judgment of the district court is VACATED and the case is REMANDED for the district court to conduct an evidentiary hearing on the issue of whether the "bad faith" exception to the rule of Younger abstention applies. The parties shall bear their own costs.