City Judge Joseph A. Fiorella on Monday reserved ruling on a protester's request that charges against him be dismissed in the interests of justice.
Nate Buckley, 27, faces a second trial next month on charges of trespassing, resisting arrest and obstructing governmental administration.
The anti-war protester was arrested during a demonstration in April 2011 outside M&T Bank headquarters at Fountain Plaza on Main Street. His arrest followed a confrontation with Niagara Frontier Transportation Authority police officers who were called to the scene after some protesters allegedly refused a security officer's request to leave bank property.
Buckley's first trial ended in a mistrial in June, after a juror passed a note to Fiorella seeking leniency for a sibling whose drunken driving case was before the judge.
Since then, Buckley's new lawyers have produced documents they say shows the Fountain Plaza area, where the incident occurred, is public in nature.
Public funds, planning and approvals led to the property's development, said attorney Michael Kuzma, who, with Daire B. Irwin, is representing Buckley.
"How can anyone argue this is private property?" Kuzma asked Fiorella during Monday's hearing.
Kuzma also told Fiorella the NFTA should have turned over three dozen documents to Buckley's lawyer in the first trial.
"We don't have an obligation to go through the NFTA's files," replied prosecutor Susan H. Sadinsky, who opposed Buckley's motion.
Sadinsky has said Buckley interfered with an officer's attempt to arrest another protester. When the protester being pursued eluded police, the officer turned his attention to Buckley, who resisted arrest, Sadinsky said.
Buckley eventually was pepper-sprayed by another officer.
"He escalated the situation by his conduct," Sadinsky said Monday.
Sadinsky said Buckley's First Amendment rights do not usurp the rights of private property owners.
"This case is not dealing with issues of free speech," she said.
M&T officials simply wanted the protesters off a retaining wall on the bank's property, she said.
"That's all M&T Bank wanted to do in this case," she said.