LAWYERS COMPLAIN AS POLICE ARREST SMOKERS IN THE SUBWAYS

Some police officers enforcing the Giuliani administration's continuing
crackdown on quality-of-life crimes are focusing their efforts on a new
public menace, according to defense lawyers and prosecutors. This spring, a
dozen people have been arrested and jailed for a night for smoking
cigarettes on Manhattan subway platforms. The formal charge is disorderly
conduct.

The arrests come as defense lawyers say that the city's quality-of-life
crackdown, which has long taken aim at turnstile jumpers and marijuana
smokers, is continuing apace and broadening. While city officials credit
that approach with driving down crime, defense lawyers assail it as
overkill that singles out minorities.

Police officers, they contend, are arresting growing numbers of people for
increasingly petty offenses. Mundane offenses that resulted in a summons or
a warning in the past, defense lawyers said, now result in a night in jail.

Defense lawyers cited a string of arrests this spring as examples.

On Feb. 5, Officer John O'Reilly arrested a 27-year-old man in Manhattan
for selling tamales without a license, according to court papers. The man
was held in jail overnight.

On Feb. 24, Officer Benjamin Kaufman of the 10th Precinct arrested a man
for aggressively panhandling by tap-dancing in front of a car, then holding
his hand out to the driver. The officer stated in court papers that he
recovered a nickel from the defendant's hand. That man was also held overnight.

And on April 30, Sgt. Peter Efthimiou of Transit District 3 arrested an
18-year-old boy for playing a radio too loudly on the subway. He, too, was
jailed overnight.

In interviews, three men recently apprehended for smoking on subway
platforms expressed astonishment at what had happened to them. One man,
arrested by Officer Richard Nenadich at 1 a.m.

Wednesday at the 137th Street station of the Seventh Avenue line, said he
could not believe he had spent a night in jail for smoking a cigarette.

"This is ridiculous," he said.

Two brothers, 20 and 17, who work as dishwashers in a Gray Papaya
restaurant, were arrested for smoking in the Christopher Street station on
May 9 after working until midnight.

The men, who asked not to be named and feared they would lose their jobs
after missing a shift at work, said they did not know a person could be
arrested for such an offense in the United States. "We were just smoking
the cigarettes," one of the brothers said. "I was sitting and waiting for
the train."

Police officials said last week that the quality-of-life crackdown was
continuing, but the department has not begun a new campaign against smoking
in subway stations. Detective Joseph Pentangelo, a Police Department
spokesman, said officers might have chosen to jail some people instead of
issuing them summonses because they did not have proper identification, or
because there were outstanding warrants for their arrest.

But the man arrested on Wednesday said he had identification with him and
did not have an outstanding warrant. The two dishwashers, who are Mexican
immigrants, had no identification with them.

Steven Pokart, the lawyer for one of the immigrants, called the arrests
appalling. Alexandra Bonacarti, the lawyer for the man arrested on
Wednesday, who is black, accused officers of arresting black and Hispanic
men they see smoking because they believe such people are more likely to
have outstanding arrest warrants.

"They're not going to walk up to the average person and harass them," she
said. "They absolutely target minorities."

David Kapner, the Legal Aid Society's Manhattan arraignment supervisor,
said smoking was the latest pretext the police were using to stop people
and check them for warrants or weapons. "Last spring, they were arresting
people for taking up too much space on park benches," he said.

Defense lawyers pointed out that officers had options other than arrest or
the issuing of a summons when they caught someone smoking on a subway
platform. They can ask the person to put the cigarette out.