After the November 2011 protests by the Occupy Wall Street movement, Albany County District Attorney P. David Soares had announced that he would not prosecute protesters for low-level offenses, as because it was not worth the resources of his office.
In March 2012, Albany City Judge Thomas Keefe dismissed charges against 88 Occupy members on the grounds that the DA has refused to prosecute. At the time, Keene found that the district attorney had the authority to decide how to allocate office resources, as long as that allocation was unbiased.
However, on Friday, Albany City Judge William Carter found Soares had not given a reason that was legally sufficient to refuse prosecution of disorderly conduct against four persons who took part in a 2012 protest organized by Occupy.
The ruling was given when one of the defendants, Colin Donnaruma, made a motion to have the case dismissed, unopposed by the office of the DA.
However, the court held that under Section 170 of the Criminal Procedure Code, cases can be dismissed only if there were issues of double jeopardy, speedy trial violations or other specified defects, none of which were raised in the motion.
The court observed, “In the absence of a CPL 170 motion … the district attorney’s pronouncement of his subjective feelings, including verbalization of his prosecutorial discretion, is legally irrelevant.”
Carter had already threatened last year to hold the DA’s office in contempt if the District Attorney did not pursue the four cases related to the 2012 Occupy protest.
However, after the ruling, Cecilia Logue, the spokeswoman of the DA’s office said, “We have been present for all court dates pertaining to this matter and will continue to be present at future appearances.”