Ex-Prosecutor Guilty of Tagging City Hall
MANHATTAN (CN) - A jury found former prosecutor Bobby Constantino guilty of spray-painting City Hall and Tweed Courthouse with the anti-stop-and-frisk slogan "NYPD Get Your Hands Off Me."
Constantino never denied doing it.
At his trial Friday, the 34-year-old attorney told a six-person jury what motivated him to leave the red graffiti tags on the landmarks. He testified that none of his legal experience as a former prosecutor, defense attorney and nonprofit think tank analyst satisfied his sense of justice.
"Anything that I did through legitimate channels wasn't really resonating," Constantino said.
Now a resident of Crown Heights, Brooklyn, Constantino said he spent the early morning of May 1 speaking to young men living in the nearby neighborhood of Brownsville about getting stopped and frisked by police.
Constantino said a recent study showed that Brownsville has felt the brunt of this policy, with 52,000 police stops within an eight-block radius. The study found that blacks and Latinos are overwhelmingly targeted for these stops, and that only 6 percent of stops end in arrest, according to The New York Times.
Constantino said that police did not stop him, a white man in a Hugo Boss suit, on his march to tag City Hall, even though he passed several officers, under video surveillance, while carrying a red spray paint can and stencil.
Constantino attacked the statutory language underlying the charges against him.
He tried to shave off half of the counts by pointing out that his charge sheet named the City Hall graffiti tags by name, but not the Tweed Courthouse ones. This oversight, he said, constituted a "major constitutional failure" by "moving the target" in what he called a "trial by ambush."
Though he refused to dismiss these counts, New York County Criminal Court Judge Anthony Ferrara differentiated the City Hall and Tweed Courthouse charges on the verdict sheet, if Constantino wants to take the issue up on appeal.
Constantino's central defense at trial was that the statutory language of each count forced prosecutors to prove that he intended to damage property through his graffiti.
Citing Google and Merriam-Webster, Constantino claimed that "damage" implied a "physical impairment." He said his acts fell short of this because he intended to leave a message using a type of spray paint that he knew would wash off easily.
He told his incredulous prosecutor, Thomas Burke, that he agreed that graffiti should be illegal, but that New York's laws on it were too defective to punish him for it.
"It's not my fault the statute is written the way it is," Constantino said. "I think the Legislature should change the statute."
Burke asked him if a fender-bender could damage a bumper.
"Yes," Constantino said.
What if the dent were fixed and repainted? Burke asked.
"Pursuant to the definition of damage in the statute, it's not damage," Constantino answered.
Excerpt for several of his friends sitting in the gallery, few in the courtroom had sympathy for Constantino's brand of activism, including his Legal Aid attorney.
At one point, Judge Ferrara snapped at Constantino for moving to dismiss Legal Aid attorney Ya Li. Ferrara called Constantino a "manipulative" defendant aiming to "put the system on trial."
"I object to that characterization," Constantino said. "I pleaded not guilty. If you already made up your mind, you should recuse yourself from this case."
He dropped the issue after the judge threatened to try him in absentia for the rest of the trial.
By the time of closing arguments, Li seemed reluctant to defend what she called her client's "inflammatory message."
"Was this the right message? That's irrelevant," she said. "Was this the right way to get the message across? No, it wasn't."
Taking cues from her client's testimony, she said that the prosecution had not proven intent to damage.
Burke's summation met Li's tepid defense of her client with an impassioned denunciation.
While he acknowledged "damage is not defined in New York law," Burke told jurors that the custodian of the Tweed Courthouse was damaged.
"Poor Ms. Hicks testified that she was outside with a bucket and scrub brush for half an hour," he said.
Earlier, Li said that she felt bad for Hicks, but that the city gave her solution intended for Magic Marker, not spray paint. A professional power washer got the marks out quickly, she said.
Rejecting that defense, Burke scoffed, "[Constantino] didn't think it was chalk."
"Every minute it was on the wall was a win for Mr. Constantino," Burke said.
The jury deliberated for a few minutes before returning a verdict of guilty on nine counts of criminal mischief, making graffiti and possession of a graffiti instrument.
Constantino did not reveal whether he will appeal.
He faces up to a year in prison at his Nov. 29 sentencing.