Background On June 24, 2020, the defendant was charged with Criminal Tampering in the Third Degree in violation of New York State Penal Law §145.14. It was alleged the defendant engaged in conduct which caused substantial inconveniences to a private individual and members of both the Departments of the Watertown Police and Public Works. The accusatory specifically asserted the defendant intentionally removed the Pride Flag from the Watertown City Hall flagpole and then disposed of the flag by “throwing it in the Watertown City Hall drop-box”. The information was based upon the investigation conducted by Detective Sergeant Joseph Giaquinto and supported by his deposition and those sworn depositions of Detective Andrew Neddo and Brandon Woolsey. On July 29, 2020 the Defendant applied for an Order, pursuant to CPL §170.30(1)(a), dismissing the information upon the ground that it is defective within the meaning of CPL §170.35(1)(a). The defendant specifically argued the supporting depositions failed to sufficiently allege, in non-hearsay form, that the defendant acted with “intent” to cause substantial inconvenience to any person. Defendant further applied for an Order, pursuant to the First Amendment of the U.S. Constitution and Article 8 of the New York State Constitution, dismissing the information on the ground that his actions are protected speech and thus immune from criminal prosecution. Specifically, the defendant argued that freedom of speech is recognized as freedom of expression and exercising that right means an individual may not be criminally prosecuted for acts which are non-violent and do not cause direct harm to other individuals. The defendant further argued his actions fall within this category of protected behavior. In its opposition, the People argued the accusatory instrument substantially conforms to the requirement of CPL §100.15 as it sets forth allegations which provide reasonable cause to believe the defendant committed the underlying offense and was supported by non-hearsay allegations as to each required element. As it pertains to the defendant’s Constitutional defense, the People acknowledge expressive conduct is entitled to First Amendment protection. However, the defendant’s actions fall outside the scope of First Amendment protections since, among other reasons, the flag he tampered with was private property of another. The accusatory instrument filed with the court is entitled “Misdemeanor Complaint” and is signed by Detective Sergeant Giaquinto. Pursuant to CPL §100.10(4), a defendant may be prosecuted by way of a misdemeanor complaint. However, it serves only as a mechanism to commence a criminal action. In order for a misdemeanor complaint to serve as a basis for prosecution, a defendant must waive prosecution by information pursuant to CPL 170.65. In the absence of a valid waiver, a misdemeanor complaint must be replaced by an information or converted to one by filing supplemental supporting depositions which satisfy the requirements of a valid information. The Court finds and considers the initial filing to be an information as the supporting depositions were filed simultaneously with the accusatory and, as such, satisfies the pleading requirements for a misdemeanor information. Legal Sufficiency Argument Pursuant to CPL §170.30(1)(a), a defendant may move to dismiss a simplified information on the ground that it is defective within the meaning of §170.35. Pursuant to CPL §170.35(1)(a), an information is defective when it does not conform to the requirements of section 100.40. CPL §100.40(1) provides that an information is sufficient on its face when: 1. It substantially conforms to the requirements prescribed in section 100.15; and 2. The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the instrument; and 3. Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof. As noted in paragraph (b) above, on a motion to consider the facial sufficiency of an accusatory instrument, the court is limited to consideration of only the factual part of the information, and any supporting depositions which may accompany it. CPL §100.20 states that “[a] supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint, subscribed and verified by a person other than the complainant of such accusatory instrument, and containing factual allegations of an evidentiary character, based either on personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein.” The offense of Criminal Tampering in the Third Degree occurs when an individual “having no right to do so nor any reasonable ground to believe that he has such right, he tampers with property of another person with intent to cause substantial inconvenience to such person or to a third person.” (Penal Law §145.14) The courts have held that to tamper is to alter or interfere with the property of another individual and such instances may occur even when an individual interferes with the radio frequencies which broadcast music for enjoyment or intentionally “jamming” currency slots of vending machines used to dispense transit cards for public transportation. (People v. Choo, 152 Misc. 2d 324 [Crim. Ct., New York County 1991]; People v. Walters, 9 Misc.3d 1121(A) [Crim. Ct.,, Kings County 2005]). It is clear the statute does not require the cause of substantial inconvenience to be demonstrated. The statute only requires that any tampering be done with the “intent” to cause substantial inconvenience to another person or third person. In a case alleging Criminal Tampering in the Third Degree, the Court in People v. Casey held that intent may be inferred from an act itself and a determination as to whether such actions caused substantial inconvenience is a question to be determined by the trier of fact. (People v. Casey, 181 Misc. 2d 744 [2nd Dept 1999]). The Court agrees with this analysis and, as such, must be applied to the facts before it. In his supporting deposition, Detective Sergeant Giaquinto stated that he personally viewed surveillance video footage taken on June 21, 2020, depicting the defendant approaching the flag poles outside of City Hall, reaching the Pride flag and subsequently placing the Pride flag into a nearby drop box. In his supporting deposition, Detective Neddo discussed a conversation he had with the Defendant regarding the incident. The defendant knew the reason for his investigation and affirmatively told Detective Neddo “…the reason I was there to speak to him was about him taking the gay pride flag down which was his First Amendment right to peacefully protest.” In his supporting deposition, Mr. Woolsey stated that he observed the defendant remove the flag and dispose of it in the Watertown City Hall drop box during a YouTube video which was broadcasted on the defendant’s channel named “Flat Earth, Watertown, NY”. Mr. Woosley further stated that he then went to the drop box, used a stick to remove the flag and notified law enforcement about the incident. He also watched police officers raise the flag to its original location. The Court finds the requisite intent to cause substantial inconvenience may be inferred from the alleged conduct of defendant. Specifically, the intent to cause substantial inconvenience is clearly demonstrated by the act of removing and disposing of the Pride flag in such a manner to cause members of law enforcement and a private individual to retrieve and return the flag to the flag pole for proper display. The defendant’s actions not only required the return of the flag to its proper location, but additional security measures were implemented to ensure such acts did not occur in the future and a criminal investigation. In light of the foregoing, the Court finds the accusatory instrument is facially sufficient and the defendant’s motion to dismiss must be denied. Constitutional Argument The defendant further argued that his actions in removing the Pride flag and placing it into a locked box should be afforded Constitutional protections as guaranteed by the First Amendment because it is a form of expression that cannot criminally be prosecuted. The defendant supports this claim by asserting his conduct was “to send the message that it [displaying or flying a Pride flag] is mocking god…[and that] he had the right to flip the flag because we are a nation under duress and has the right to peacefully protest.” As a threshold matter, the court must determine whether the defendant’s conduct is “expressive conduct” to invoke the First Amendment and, if so, the rights that flow therefrom. “[W]hether the conduct allegedly compelled was sufficiently expressive so as to trigger the protections of the First Amendment” has long been recognized in applicable caselaw as the beginning point for any First Amendment analysis involving expressive conduct. (Gifford v. McCarthy, 137 AD3d 30 [3rd Dept 2016] citing Clark v. Community for Creative Non-Violence, 468 US 288 [1984]) Upon examining an individual’s behavior in an effort to determine the existence of expressive conduct, there must be a finding that “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it” (Church of Am. Knights of the Klu Klux Klan v. Kerik, 356 F3d 197 [2d Cir. 2014] citing Texas v. Johnson, 491 US 397, 109 S.Ct. 2533 [1989]). The Second Circuit further stated, “[t]he party asserting that its conduct is expressive bears the burden of demonstrating that the First Amendment applies” and “that party must advance more than a mere ‘plausible contention’ that its conduct is expressive” (Clark v. Community for Creative Non-Violence,104 S.Ct. 3065, [1984]) The defendant argued acts of expression protected by the First Amendment include “burning of the United States flag, desecration of the United States flag, [and] any non-verbal conduct that intends to communicate a message”. Although correct in the abstract, such cases are inapposite to the facts of the instant matter. “[T]here is an objective component that requires consideration of whether, under the circumstances, the particular conduct is likely to be understood or perceived as expressing a particular message” (Grzywna ex rel. Doe v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d 139 [N.D.N.Y. 2006]) The context of certain behavior deemed expressive conduct is an additional consideration in determining whether objectively a message is being delivered. In other words, “[t]o be characterized as expressive, the conduct must be intended to convey a particularized message and there must be a great likelihood that, given the surrounding circumstances, the message would be understood by those who viewed it.”(People v. Hollman, 68 NY2d 202 [1986]) For instance, it has been found that cultural and world events of a certain time are important considerations. Wearing black armbands during the Vietnam War era was deemed expressive conduct because it conveyed an unmistakable message pertaining to hostilities in that region. Another form of expressive conduct was found in a case where a peace symbol was attached to the American flag as a protest against the invasion of Cambodia in the early 1970′s. (Tinker. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 [1969]; Spence v. State of Washington, 418 US 405, 94 S.Ct. 2727 [1974]) In contrast, matters such as gambling, setting off fireworks and urinating in public were deemed non-expressive in nature and subject to regulation. (People v. Hollman, 68 NY2d 202 [1986]) citing Clark v. Community for Creative Non-Violence, 468 US 288, 104 S.Ct. 3065 [1984]) In the case before the court, defendant’s attempt to send a message or express by conduct protected speech is not objectively reasonable and does not warrant First Amendment protection. Defendant’s act of removing the City’s Pride flag and stuffing it in a locked box at an hour where no one was likely to be present does not convey a message. If it did, it was a message that could not be understood by any reasonable person under the circumstances. In fact, no one was present to witness the message. It was videotaped by himself for his own personal use on his You Tube channel and no reasonable person would fathom any particularized message relating to defendant’s god or that removing a Pride flag conveyed a message that our nation is under duress. Defendant’s attempt to justify his behavior is self-serving. The Court finds the defendant’s objective behavior, and subjective belief, could in no manner be construed as “expressive conduct” warranting First Amendment protection. The Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends to thereby express an idea” (United States v. Obrien, 391 US 376, 88 S.Ct. 1673 [1968]). The Court of Appeals similarly has held. (People v. Hollman, 68 NY2d 202 [1986]) Upon review under the applicable legal standard, there is no plausible contention raised by the defendant that his behavior conveyed any particular message and, as such, he failed in demonstrating that such conduct is an expression warranting First Amendment protection. While the defendant himself may believe his actions were a message of religious connotation, the Court further finds there is absolutely no likelihood, given the circumstances, that the defendant’s message could be construed or comprehended in such a manner. The removal of the Pride flag from a flagpole located at Watertown City Hall is non-expressive conduct warranting criminal prosecution. The defendant failed to advance more than a mere ‘plausible contention’ that his conduct was expressive. Consequently, defendant did not meet his initial burden of demonstrating that the protections under the First Amendment apply. Lastly, the Court notes the People’s position that defendant’s constitutional argument “pertains to a defense which must be asserted at trial” is without merit. The defendant’s erroneous belief that his conduct was protected by the First Amendment is not a material issue for trial and, therefore, no instructions by the Court will be delivered to a jury. This constitutes the Decision and the Order of the Court. Dated: October 7, 2020
