Original Article Hundreds busted under bogus law News discovers alarming number of arrests using unconsitutional statute By THOMAS ZAMBITO and RUSS BUETTNER DAILY NEWS STAFF WRITERS A woman begs for money at the intersection of Park and 55th street on Thursday afternoon. An anti-begging law ruled unconstitutional in 1992 has since been used in more than 1,800 arrests and prosecutions statewide, a Daily News analysis of court data found.Among The News' findings: The arrests, 71% of them in New York City, resulted in hundreds of people being held in jail while awaiting court hearings. Some of those arrested on charges they had loitered for the purpose of begging were ultimately sentenced to jail time on a charge that was supposedly no longer on the books. Hundreds more were the subjects of outstanding arrest warrants based on the charge. The numbers documented by The News are far greater than officials acknowledged last month, when a class-action lawsuit alleged that 140 people were prosecuted under the statute in 2003 and last year. The total of 1,876 found by The News doesn't include cases that resulted in an adjournment in contemplation of dismissal, a term that means all charges are dropped if the defendant stays out of trouble for six months. The numbers could be higher still: The News analysis included arrests only through June 2004, so arrests since then are not included. Legal experts said arrests on bogus charges go to the heart of the justice system's integrity. "The decision to arrest someone and take away their freedom should not be treated lightly," said Eugene O'Donnell, a law and police science professor at John Jay College of Criminal Justice. "But there's a kind of mind-set in some circles that they can arrest first and figure out the propriety later." The recent lawsuit focused on arrests in the Bronx, where District Attorney Robert Johnson and police officials immediately acknowledged the problem and vowed to stop prosecuting cases under the old law. But the analysis found other counties actually made more arrests after the charge was ruled unconstitutional Oct. 1, 1992. Brooklyn led the city with 504 arrests on the charge up to the June 2004 data cutoff. Nearly half - 234 - took place in the 75th Precinct in East New York, Brooklyn, where beat cops have alleged they were ordered to meet quotas on quality-of-life summonses. Most of the Brooklyn arrests resulted from police summonses, cases that district attorneys don't prosecute. But 102 of the arrests appear to have been handled by the DA's office. Amy Feinstein, the borough's chief assistant DA, she she suspected that some of the cases on The News' list may have been caused by clerical errors during plea negotiations. But she said her office would support anyone who sought to have a conviction on the charge overturned. "We should have zero, frankly," she said. Erie County, with 512 cases, edged out Brooklyn for the most arrests statewide, apparently the result of a 1990s anti-panhandling initiative. Yvonne Vertlieb, Erie County's deputy DA, said the office likely would go along with anyone who sought to have such convictions overturned, though she said she didn't trust court data. She also said the office wouldn't search out the unjustly convicted. "I would say we're pretty much going to do nothing," Vertlieb said. Of the 1,876 arrested statewide, 341 couldn't come up with a bond to make bail - averaging $1,317 - and were held in jail while awaiting a hearing. Defendants pleaded guilty to the unconstitutional charge in 307 cases. Of those, 233 pleaded guilty only to the unconstitutional charge; 74 also pleaded guilty to another charge, typically disorderly conduct. Among those convicted on the unconstitutional charge, categorized as a violation, 29 were sentenced to jail for two to 15 days. An additional 124 were sentenced to time served while awaiting trial. The unconstitutional count was dropped in 897 cases in which the defendant pleaded guilty to another charge, again most often disorderly conduct but also cases of drug possession or resisting arrest. Guilty pleas on the other charges could be thrown out if the begging charge was the basis for the search and arrest, said attorney Joshua Dratel, president of the New York State Association of Criminal Defense Lawyers. In ruling that the "loitering for begging" statute was unconstitutional, Manhattan Federal Judge Robert Sweet wrote in his Oct. 1, 1992, decision that "the message that begging sends" was protected by the First Amendment. In 1996, the city pushed through a law banning aggressive panhandling. But the old section of the banned loitering law - 240.35(1) - remained on the state's official Web site and in publications of the laws of the state. Cops, judges, district attorneys and defense lawyers all blamed the others for not recognizing sooner that the old charge had never really died. An NYPD spokesman said only that the department had recently notified cops to stop using the banned charge. More than half of the 1,328 city cases that included the charge originated with a summons from a police officer. Judges who work in courtrooms that handle summonses show up with the most appearances in the cases. Judge Eugene Schwartzwald, who works in Brooklyn's summons part, led all judges, appearing in 213 cases and issuing 179 warrants on the charge. Schwartzwald says he didn't know the law was unconstitutional until he read news accounts of the lawsuit. "No one said anything. ... They had lawyers and no one made the argument. Originally published on July 3, 2005