During my third year of law school, one of my courses was a criminal defense clinic, where I represented misdemeanor defendants in Bronx Criminal Court under a student practice order under the supervision of our professor and an incredible organization called the Bronx Defenders. I am sharing some stories about that time. These stories are based on notes, memoranda, and filings that I saved from that time, as well as my own recollection. Names and other identifying information have been changed to protect the privacy of the people involved. You can read previous posts here, here, and here.

If you’ve ever been unemployed, if you’ve ever spent weeks and months looking at job listings, applying to jobs, dealing with rejection and/or never even hearing back, then you might recognize the pride felt when you finally get hired and are on your way to work for your first day.

Patricia was 19 years old, but she looked younger. She had no prior criminal record and she was very quiet and almost painfully shy. I met her through the thick plexiglass at the attorney window in the holding area next to the arraignment part of the Bronx Criminal Courthouse. She was dressed in khaki pants and a green NYC Parks Department T-shirt. Today was Patricia’s first day of work and she had missed it.

Patricia had been unemployed for a long time. She had no money. And when I say she had no money, I mean that she couldn’t even afford a subway ride to work. At the time, subway rides cost $1.50. Her cousin, whom she lived with, was a high school student and had a student Metrocard. Her cousin lent Patricia the student Metrocard so Patricia could get to work.

According to Patricia, she entered the station, swiped the Metrocard, and sat on a bench on the platform for several minutes waiting for her train. She was approached by a uniformed NYPD officer who demanded that she empty the contents of her pockets. The officer saw the borrowed Metrocard and placed her under arrest for Theft of Services for Transit.

Theft of Services for Transit is a Class-A misdemeanor which carry a sentence of up to 1 year in jail or three years probation and a fine of up to $1000. Here is a partial list of other Class-A misdemeanors in New York State: Assault in the Third Degree, Menacing in the Second Degree, Criminal Obstruction of Breathing or Blood Circulation, Sexual Misconduct, Forcible Touching, Sexual Abuse in the Second Degree, Killing or injuring a police animal, Riot in the Second Degree, Inciting to Riot, and Prostitution in a School Zone.

The DA’s initial offer was a sentence of a conditional discharge and a fine of $100 plus court costs. Court costs added approximately another $100 to this fine. The zip code where the Bronx Hall of Justice stands is the poorest zip code in the United States of America. Judges know this and are more lenient about the payment of fines than most other jurisdictions. Courts would give the defendants two options: Option 1 was to pay something every week until the obligation was satisfied. They’d go to the cashier’s window, tell them the case number, and slide five bucks across the counter. As long as they paid something on a regular basis, the Court wouldn’t issue a warrant. Option 2 was to state that they couldn’t afford to pay the fine and then the Court would enter civil judgment against the defendant. Many defendants would choose option 2 not realizing that having a civil judgment against you pretty much obliterates your credit record.  Years later, they’d try to rent an apartment or lease a car and find out that they weren’t considered credit-worthy.

Patricia’s search and arrest was likely an unconstitutional search and seizure.  The arresting officer wrote that he witnessed her using a student Metrocard and he suspected she wasn’t a student. Based on Patricia’s story that she had been on the platform for several minutes before being approached by the officer, we thought that was a lie. If he had actually witnessed her swipe the student Metrocard, which from more than a few feet away was virtually indistinguishable from a single ride Metrocard, he would have arrested her immediately. The other way the officer could get around it is because he likely would have testified that he “requested” that she empty her pockets and she voluntarily complied. This is also bullshit because if she refused his “request”, she’d have picked up a “R.O.A.D.” charge (Resisting, Obstructing government administration, Assault, Disorderly conduct). Before marijuana was completely decriminalized in New York, the police used this tactic to make marijuana busts. The DA’s office was refusing to prosecute charges of Unlawful Possession of Marijuana, a violation that carried a small fine. But, if the possession was “open and notorious” (meaning that it was being burned or plainly visible), it was a misdemeanor and the DA’s office would prosecute the charge. NYPD began stopping (mostly) young men and demanding that they empty their pockets. If the person pulled some marijuana out of his pocket, the NYPD would then arrest that person for open and notorious possession.

Patricia had one thing going for her: an absolutely spotless criminal record. No arrests, no summonses. I told the DA that in light of her clean record and her recent attainment of a new job, which she had been on her way to, they should offer her an ACD (Adjournment in Contemplation of Dismissal). The DA agreed and the judge granted it. As Patricia was released from her handcuffs, she, like all defendants who are released at arraignment, was given a Metrocard so she could get home.