Thursday, November 22, 2007

The Court Report
By Richard Blassberg

Guardian Seeks Permanent Injunction Against Amicone And The City of Yonkers
Guardian News v. Amicone
United States Federal District Court, White Plains
Judge Charles L. Brieant, Presiding


Last Tuesday and Wednesday, November 13 and 14, in United States District Court in White Plains, Plaintiff Guardian News Corporation, parent of The Westchester Guardian newspaper, in a trial presided over by Judge Charles L. Brieant, sought a permanent injunction against Mayor Philip Amicone and the City of Yonkers, restraining them from any further acts in violation of the First Amendment with respect to the newspaper.

Guardian News was represented by attorney Jonathan Lovett, of Lovett & Gould, White Plains, and the Defendants by Kevin Plunkett and Darius Chafizedeh, of the law firm Thatcher, Proffitt & Wood, LLP, also of White Plains.

The trial got underway at 10:30am Tuesday as Mr. Plunkett advised Judge Brieant, “There’s a few items before we begin, Your Honor. Firstly, Plaintiffs have withdrawn their claim for damages, with prejudice, and signed a stipulation. Secondly, there’s some discovery issues, and we would move to have this matter dismissed as we believe it is moot; the relief offered by the Court was accorded.”

Judge Brieant responded, “I understand that it’s only a temporary order.”

Attorney Plunkett came right back, “We contend that the City has honored and complied with the relief requested.”

Brieant then defined the limits of the proceedings, “All we are trying is the Plaintiff ’s prayer for permanent relief.”

Plunkett then suggested, “The parties can agree to the terms of a permanent injunction,” obviously attempting to avoid a trial. The judge responded with, “I have been trying to get the parties to agree for several days now.” To
which Mr. Plunkett came back with, “The only issue for us is what they can, and cannot, do at City Hall.”

At this point, Mr. Lovett entered the discussion with, “Your Honor, we have had numerous sessions without agreement.”

Judge Brieant then offered to allow the attorneys a few minutes to see if they could come to agreement, and left the court room. Returning about ten minutes later, he observed, “No talking seems to be going on,” and the trial was almost underway, save for one last issue.

The Defense apparently did not wish this reporter to continue in that function at the trial, for whatever reason, and suggested that I might be called, by them, as a witness. To that maneuver, Judge Brieant responded with, “The Plaintiff can designate one agent.” Mr. Lovett then stated, “We want Mr. Blassberg to be that agent,
because if he is excluded...”

The Judge broke in with, “All the witnesses, other than the designated agent, will be excluded.” At which point, several witnesses, seated in the back of the court room, retired to the corridor and the trial was underway.

Attorney Lovett said, “I’ve subpoenaed a number of officials and employees. I call my first witness, Selim Zherka.”

Mr. Zherka was asked to identify his relationship to the Guardian News Corp.

He responded, “I’m President and sole shareholder of the Guardian News, sole owner of The Westchester Guardian.”

Following a question regarding how the newspapers are distributed to the paper’s newsracks, Mr. Lovett then placed issues, beginning with August 10, 2006 through June 28, 2007, before Zherka for identification, and placement into evidence before the Court. Lovett then asked, “What, if any, problems (with distribution
in Yonkers) were there before July 5, 2007?” Zherka responded, “We didn’t have any.”

Lovett then brought forward the July 5, 12, 19, 26 and August 2, 9, 16 and 23 issues as numbered exhibits, and asked, “With respect to these exhibits, did anything change?” Zherka answered, “Yes.”

Lovett now said, “Please explain.” Mr. Zherka proceeded to tell the Court what had occurred the day after one of his employees, Richard Guzman, had brought the July 5 issue to the counter at Yonkers City Hall. Lovett then inquired, “Following those events, did anything happen with respect to distribution in Yonkers?”

Mr. Zherka described bringing a distribution box to the lobby in City Hall, and installing it, filled with newspapers, only to find shortly thereafter that the box, and its contents, were gone. He then explained placing a second, and ultimately a third, box, each time near a rack in Yonkers City Hall containing other newspapers, and, each time returning shortly thereafter to find that the box, and the newspapers, had been removed.

Zherka went on to explain, “I thought by installing a different type of rack than I had installed; a smaller wire rack, a desktop model, we would be okay. I went upstairs to the Mayor’s Office and found my rack and newspapers hidden.”

Lovett asked, “What happened next?” Zherka explained, “The next day I attempted to see the Mayor. I spoke with his secretary. Then a police officer and Dave Simpson, the Mayor’s spokesperson, and Mr. Regan, appeared and told the police officer to throw me out.

Lovett: “What happened next?”

Zherka: “We started noticing that our news racks in Yonkers were disappearing. At one point, August 9, we had run out of news racks.”

Lovett: “Did you personally attempt to distribute?”

Zherka: “Yes.”

He then proceeded to describe an incident in which he and an employee had climbed up the stairs from South Broadway toward City Hall, each carrying copies of The Westchester Guardian; neither having distributed even one copy, before they were confronted at the top of the steps by a Yonkers police officer who told them, You know I have to give you summonses,” issued summonses and then escorted them back down the steps.

At this point, Attorney Lovett displayed several photos taken two days earlier, November 11, and offered them into evidence. Another set was then shown that had been taken in early July of this year at Yonkers City Hall. Still other photos taken at the end of July showing news racks that had replaced the one that had been originally placed outside the main post office in Yonkers in August of 2006, as well as photos of news boxes left unmolested at the site belonging to The Journal News, Westchester Parent, Metro New York and other free newspapers. In addition, photos taken by Mr. Zherka in August 2007 showing a Westchester Guardian wire news rack inside Yonkers City Hall, as well as a distribution box near the pay station outside the Cacace Courthouse, were shown and entered into evidence.

Mr. Lovett then asked, “As of August, did you go to Lake Street?” (referring to the Lake Street installation of the Yonkers Department of Public Works). Zherka answered, “Yes, we went to 255 Lake Street, the Department of Public Works, and saw Eddie Mayer.”

Lovett: “How many news racks were there?”

Zherka: “We counted 35”

Lovett: “Were you, or The Guardian, ever afforded a hearing by the City of Yonkers corporate counsel?”

Zherka: “No.”

At this point, Defense counsel Kevin Plunkett commenced cross-examination, with, “Mr. Zherka, is it your
belief that you can distribute newspapers in a Federal courthouse?”

Publisher Zherka responded, “No.”

Plunkett pressed further, “Is it your belief that you can distribute, by hand, newspapers in a Federal Courthouse?”

Again, Zherka responded, “No.”

Plunkett: “Did you personally see anybody take your newspapers from City Hall?”

Zherka: “No.”

Plunkett: “So what this boils down to is whether you can place a newspaper box in City Hall?”

Zherka: “No; it is about Freedom of Speech.”

Plunkett: “Were there any boxes, such as this (pointing to a photo of a Guardian news box) in City Hall when you put your boxes there?”

Zherka: “No.”

Plunkett: “There was a desk that permitted all newspapers to be placed.”

Zherka: “No, all papers except ours.”

Plunkett: “It is established that despite several articles in 2006 critical of the Yonkers Police Department, no problems developed with distribution in Yonkers.”

Mr. Plunkett now offered into evidence Defense Exhibits “N”, “P”, and “Q”, letters that had been sent August 2, 7 and 10 respectively, to the Yonkers Commissioner of Public Works. Plunkett then showed Mr Zherka Defense Exhibit “PP”, a photo of the newspaper desk at City Hall, asking, “Is this an accurate representation of the newspaper desk at City Hall?” Zherka responded, “Yes; post our receiving our newspapers back.”

Plunkett: “I want to turn now to newspapers distributed by hand; you received two tickets?”

Zherka: “Yes.”

Plunkett: “So you came back a second day?”

Zherka: “The first day I was distributing papers. The second day I merely walked to the top of the steps without distributing any newspapers when I was confronted by a Yonkers police officer who said, ‘You know I have to give you a summons.” And, he issued a summons to me saying, “Now you must leave or you will be arrested.”

Plunkett: “Would you agree with me that this is really all about methods of distribution?”

Zherka: “No, this is about the First Amendment.”

Plunkett: “Has Mr. Blassberg provided legal counsel to you in any way?”

Zherka: “No.”

Plunkett: “Were you involved in 1998 or 1999 with the placement of the purple Barney Boxes?”

Zherka: “No, I never heard of it.

Plunkett: “So, you were not aware of the Yonkers Newsrack Law?”

Zherka: “No.”

At that point, the Court adjourned for lunch. After lunch, a Mr. Edmund Fitzgerald, an investigator employed by the City of Yonkers was brought to the witness stand. Mr. Lovett asked if he was an attorney; and upon learning that he was not, he asked, “Have you taken photos of the Guardian news racks?” After Fitzgerald acknowledged having taken numerous photos of Guardian boxes, held by the Yonkers Police Department,
Lovett asked, “Of all the boxes you took photos of, how many were in the middle of the sidewalk?” Fitzgerald responded, “None were in the middle of the sidewalk.” Several minutes later, on redirect, Lovett asked, “Did you know the City of Yonkers removed 56 boxes and returned only 35?” Fitzgerald answered, “I had no knowledge.”

Yonkers Commissioner of Public Works, John Liszewski, was the next witness. Questioned as to his role in the
removal of Guardian news boxes since July of 2007, Liszewski responded, “I gave a directive to remove blue boxes.”

Lovett: “Why did you remove them?”

Liszewski: “Because we had a proliferation of those ‘blue boxes’. We were receiving complaints.”

When pressed by Mr. Lovett as to who was complaining, the Commissioner named four individuals, all Yonkers
city employees, two from the Mayor’s Office, all directly under the control of the Mayor’s Office.

Given the fact that several newspapers, including the New York Times, Westchester Parent, and others, were distributed in blue boxes, and yet Commissioner Liszewski repeatedly claimed that he referred to The Guardian boxes as ‘blue boxes’, admittedly instructing his personnel to confiscate the ‘blue boxes’, Lovett instructed the witness, “Tell the Court how many blue boxes you removed that did not belong to The Guardian News?” Hesitating momentarily, Liszewski said, “None.” Lovett then asked, “You instructed your men only to pick up the blue boxes; did any of them ask which blue boxes?” Liszewski answered, “No.”

Analysis

Over the course of the next day and a half, numerous city employees, including several Yonkers police officers, were called by Plaintiff’s attorney, Mr. Lovett, to testify. Despite the fact that each had been thoroughly prepared by Defense counsel, there were numerous inconsistencies in their testimony.

In addition, approximately a dozen employees of Mr. Zherka, several in their late teens and early 20s, mostly involved in various other enterprises, who had been called upon to assist with distribution, were also called to the stand, each describing how they had been given summonses and threatened with arrest for having distributed or having attempted to distribute The Westchester Guardian newspaper in public places in Yonkers protected by the First Amendment, over several weeks in July and August.

Despite Mr. Plunkett’s best efforts on cross-examination to rattle and impeach those witnesses, each held firm to their accounts, having gone through the experience, and each, despite their youth, comported themselves with dignity and due respect before the Court. In the final analysis, their experience in Judge Charles L. Brieant’s
Court, in defense of their rights, under the First Amendment, will very likely positively influence the course of their lives in some small way.

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