Defendant appeals from his conviction of plotting to overthrow the government, resisting arrest, disorderly conduct and being a generally annoying person (BAGAP). The judgment is affirmed.
At the suppression hearing, Officer Thumbtack, a 20-year veteran of the police force, testified, “The defendant’s suspicious demeanor gave me probable cause to believe that a crime had been, was being, or was about to be committed.” Given this unequivocal statement by a presumptively truthful police officer, suppression was properly denied.
The trial court properly denied defendant’s Batson motion. The three jurors against whom the People exercised peremptory challenges were of the same race as the defendant, from which it may reasonably be inferred that their deliberations would be affected by sympathy. While the prosecutor’s isolated remark, “They all stick together” would have better been left unsaid, it was plainly race-neutral, since she made no explicit mention of any particular race.
Fulfilling our responsibility to affirm the judgment by any means necessary, we find unavailing defendant’s challenges to the weight and sufficiency of the evidence. Plainly, clearly and obviously, defendant’s approach to Officer Thumbtack while the latter was engaged in guarding the Nation’s security was a blatant attempt to distract him from observing the activities of Al Qaida terrorists. The People had no burden to show that Al Qaida terrorists were actually, or even likely to be, present.
Also unavailing is defendant’s claim that he was not a second felony offender. Plainly, the offense of being a generally annoying person in California is the equivalent of a felony in New York.
Defendant’s claim that BAGAP is unconstitutional is unpreserved for appellate review and we decline to review it in the interest of justice. Were we to review it, we would find it ridiculous.
Contrary to the dissent’s unsolicited opinion, the prosecutor’s summation remarks were not improper and were in any event responsive to the defendant’s attack on her integrity by suggesting that the People had the burden of proof. Besides, any possible prejudice was cured by the court’s instruction to the jurors that nothing said by defense counsel is evidence.
All concur except Justice Magoo who concurs in an opinion and Justice Gadfly who dissents in an opinion:
Magoo, J. (concurring) While I agree with the majority that the defendant was plainly guilty of antidisestablishmentarian conduct based on Constable Thumbtack’s perlustration, I write separately to show off my incredibly subtle legal mind and big vocabulary.
The majority has overlooked the Magna Carta’s teaching that “a freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense.” Being an annoying person is plainly a grave offense in any jurisdiction, but where as here the California statute omits the requisite actus reus of being generally annoying, Californians being deemed presumptively annoying as a matter of law, it cannot be said to be the equivalent of a New York felony.
However, since being a generally annoying person is a continuing offense, the defendant could have been charged with multiple counts of BAGAP and received the equivalent sentence. I therefore find the error harmless.
Gadfly, J. (dissenting) The defendant, a visitor from California, approached Officer Thumbtack who was sitting in his patrol car in front of Dunkin [sic] Donuts, and said, “Can you kindly direct me to Grand Central Station?” The defendant’s shaved head, saffron robes and beads gave the police at most an articulable reason to inquire about his religious beliefs, but were not in and of themselves signs that criminal activity was afoot. Since the arrest was unlawful, defendant’s cursing at the police in Sanskrit constituted neither resisting arrest nor disorderly conduct.
In my opinion, the court should have granted defendant’s motion for a mistrial when the prosecutor said on summation, “Ladies and gentlemen, the New York District Attorney’s Office has information that we weren’t allowed to present that Officer Thumbtack was conducting surveillance of Dunkin [sic] Donuts and that Osama bin Laden got away because of the defendant’s deliberate interference.” There was no evidence that Officer Thumbtack was doing anything other than taking a coffee break or that Osama bin Laden was present or likely to be present in Dunkin [sic] Donuts at the time.
The majority is out of its mind for upholding the conviction and I respectfully dissent.