A man on trial for spraying anti-Trump graffiti on the side of a Manhattan building should walk free because Governor Andrew Cuomo "basically" committed almost the same offense as part of last fall's unsanctioned Subway Therapy project and faced no consequences, his attorney argues.

#nypdchallenge #btminternational #jetsetters A post shared by #jetsetter #globetrotter (@living_la_vida_delka_) on Nov 23, 2016 at 2:18pm PST

Max Dornfeld, 36, has been hit with misdemeanor charges after he was arrested in the early morning hours of November 23rd for tagging ""FILM YOURSELF ASKING NYPD QUESTIONS ABOUT TRUMP & JEFF SESSIONS. #NYPDCHALLENGE" on the side of 51 MacDougal Street. Dornfeld's lawyer, Edward Kratt, will represent him in New York County court Thursday, where he'll argue that Manhattan District Attorney Cyrus Vance's office is guilty of unjust "selective prosecution."

Made up of thousands of small notes containing handwritten messages expressing New Yorkers' anxiety and shaky resolve following the election of Donald Trump, Subway Therapy drew international attention almost immediately after artist Matthew Chavez, a.k.a. Levee, started the installation by handing out notes and pens inside the 14th Street station tunnel between Sixth and Seventh Avenues.

In spite of the MTA's policy of removing unapproved posters and prosecuting subway vandals, the project (under different curation) grew to take up a large portion of the Union Square stations as well—and on November 14th, six days after Trump's win, Governor Cuomo added his own handwritten note to the compendium (Cuomo wrote "New York State holds the torch high! - Andrew C." and included a partial quotation of Emma Lazarus's famous sonnet lines "Give me your tired, your poor, your huddled masses"). Photos of the Governor affixing his note were widely shared by his own communication office, and at press time Cuomo has not been arrested nor charged with vandalism.

The MTA's Rules of Conduct states "No person shall post, distribute or display any sign, poster, notice, advertisement or other printed or written matter in or on any facility or conveyance without the permission of the Authority."



Governor Cuomo affixing his personal note to the Subway Therapy wall last November (NY Governor's Office)

"It is clear that the posting and affixing of those posted notes constituted Making Graffiti," Kratt wrote in court papers, "as no express permission from the owners of MTA property was sought by the posters or given by the MTA."

"There's no difference between Cuomo and the thousands of people who posted messages, and Max Dornfeld who posted a similar political message," Kratt told Gothamist. "The only difference is Max has a 'bad graffiti record,' so to speak. The distinction to persecute him has to do with his prior record and nothing to do with the content of his post. It's basically similar."

Dornfeld, who lives in Oakland, California, has been arrested 48 times on graffiti charges in his life and was expelled from high school for making graffiti in 1995, according to the Seattle Times. He was arrested and charged along with three accomplices after an NYPD officer who had observed the tagging recognized him behind the wheel of a getaway vehicle and later found nine spray cans inside the car.

Kratt maintains that the political worries expressed in both Dornfeld's #NYPDCHALLENGE tag and the illicit Subway Therapy installation were effectively identical. "Thousands of other violators, who posted similar political statements on the walls of the Union Square subway station, were not prosecuted," he wrote in court papers. "Such selective prosecution is a clear violation of defendant’s constitutional right."

Despite being taken down last December, the notes of Subway Therapy will be released as a book later this year, and Cuomo announced plans to preserve a portion of the project with the New York Historical Society.

"Graffiti is all in the eye of the beholder," Kratt said. "A lot of people think it's art, talented graffiti artists are respected. Others see it as vandalism."