Associate Judge Rowan Wilson. (Courtesy photo)

A judge on the New York Court of Appeals wrote this week that a decision handed down by five of his colleagues on the high court was a return to "the world of broken windows" and an affront to the state's recent trend toward more progressive criminal justice laws.

The Court of Appeals, in the decision, upheld charges against Clinton Britt, who was charged in Manhattan after police found $300 in counterfeit cash in his pocket during a search.

In a dissent nearly twice as long as the majority opinion, Associate Judge Rowan Wilson wrote that the court's decision to uphold the charges was an unnecessary result to support the rule of law in New York state.

"As of today, it appears the law approves the forcible detention of people drinking from containers wrapped in paper bags and their imprisonment for years if they possess $300 of counterfeit money," Wilson wrote. "Raise your hand if you think that is a good allocation of police resources and a wise expenditure of taxpayer dollars."

Britt was chased by police in Times Square after he was spotted drinking from a container in a paper bag. He fled into a haunted house attraction called Times Scare, where officers found and detained him. He had a Lime-a-Rita cocktail in the bag.

When Britt couldn't provide the officers with a valid form of identification, he was arrested. The officers had originally intended to issue him a summons but couldn't do so without a valid ID. Britt was handcuffed by the officers, who then performed a search.

During the search, the officers found $448 in two separate wads or bundles in a pocket in Britt's jacket. They also found three bags of what appeared to be crack cocaine.

The officers later discovered that $300 of what Britt had on him was counterfeit money. The rest was genuine. Britt was charged with criminal possession of a forged instrument and other charges related to the drugs found at the scene.

While Britt was being transferred, he offered to give up who gave him the counterfeit money in exchange for dropping the drug charges. The offer was rejected.

Britt first tried to convince the court to disregard the property seized from him and any statements made to police, arguing that his arrest hadn't been justified. He said his actions—before he fled—shouldn't have caused officers to pursue him for an arrest.

The arresting officer testified at a hearing on that request that paper bags are common for individuals trying to conceal an open container of alcohol and that he'd seen Britt drink from it. Britt's motion to suppress was rejected, and the case proceeded to trial.

At trial, an attorney for Britt moved to throw out the forged instrument charges because, the lawyer argued, prosecutors couldn't prove he intended to pass on, or use, the counterfeit money. The statute, as written, requires "intent to defraud."

Britt had argued that prosecutors weren't able to show, based on the arrest, that he planned to use the counterfeit money — only that he had it on him at the time.

An agent from the U.S. Secret Service testified at Britt's trial that, in cases involving counterfeit money, individuals usually separate genuine and fake bills. That's what Britt had done—the $300 was separate from the genuine $148 when officers found it.

The Court of Appeals, in its decision this week, wrote that the facts of the case outweighed any doubt that Britt intended to use the counterfeit money. The decision was authored by Associate Judge Eugene Fahey.

For one, Fahey wrote, Britt was carrying $300 in counterfeit money in a commercial district in Manhattan that's popular with tourists. Britt also had separated that cash from his genuine bills, indicating that he didn't want to mix the two up, Fahey wrote.

"It was rational for the jury to infer defendant's intent to pass the counterfeit money from the segregation of the counterfeit bills, here achieved by a rubber band, along with the other circumstantial evidence we have summarized," Fahey wrote.

Wilson, in the dissent this week, strongly disagreed. He wrote that neither the amount of money Britt had, nor his choice to keep it separate, was enough to prove his intent to use it. In fact, the opposite could be argued, he wrote.

"Ask yourself this: Suppose you know you are carrying both real and counterfeit money, and you want to make sure you do not spend the counterfeit money. Would you intermingle it with your real money, or keep it separate?" Wilson wrote. "Obviously, you would keep it separate, just as Mr. Britt did."

Wilson also wrote that Britt shouldn't have been detained in the first place. Such a detention is only lawful if an officer suspects that someone is about to commit a felony or misdemeanor, Wilson wrote. That wasn't the case here.

"Drinking a Lime-A-Rita™ in Times Square is not a felony or misdemeanor. Nothing in the Penal Law prohibits it," Wilson wrote. "Instead, it is a violation of New York City Administrative Code § 10-125, punishable by a fine of not more than $25 or imprisonment of not more than one day."

In a particularly scathing part of the dissent, Wilson blamed Britt's arrest, and the consequent conviction, on his status as a low-income person with a criminal record. Britt had been sentenced to three to six years in prison.

That wouldn't have happened to someone differently situated, Wilson wrote.

"None of that would have happened had he been affluent, drinking rosé with a chilled lobster picnic splayed out on Central Park's Great Lawn on a sunny summer afternoon," he wrote.

Wilson was joined on the dissent by Associate Judge Jenny Rivera. Chief Judge Janet DiFiore and Associate Judges Leslie Stein, Michael Garcia, and Paul Feinman joined Fahey on the court's opinion.

Britt was represented in the case by Jenny Wu, who's counsel at Paul, Weiss, Rifkind, Wharton & Garrison. Wu wasn't immediately available for comment.

The Manhattan District Attorney's Office declined to comment Friday.

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