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A kite flies in Brooklyn

The case against Larry Cuttitta has been dismissed by a criminal court judge in Brooklyn, and we're ready to hire a plane to fly over New York, skywriting the words, "Justice lives!"

Provided, of course, the pilot doesn't run over any kites on the way.

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With Mr. Cuttitta the problem was the reverse. He faced a fine of up to $1, 000 for flying a kite that threatened to run down airplanes. Or so he was accused.

What a melodrama has transpired since that fateful day, July 26, when Police Officer Charles Cosenza landed his patrol helicopter on the grassy strip beside the Belt Parkway near Bay Eighth Street, where Mr. Cuttitta was flying his kite!Not permitting himself to be swayed by five feet of red, white and blue -- Officer Cosenza wrote the most famous moving violation ticket of 1981, basing his summons on the federal air-safety regulation that defines a kite at a height of 1,000 feet as a "danger to navigation."

Kite flyers are nimble chaps, prepared for a rude gust of wind. Mr. Cuttitta , the president of a paper supply house, refused to reel in, as the saying goes. He built his defense on the argument that the statute in question applied only to kites weighing five pounds or more.

The lawyer for the Federal Aviation Administration, Loretta Alkalay, countered that a kite of any weight could be in violation of the code if "flown in such a way as to create a hazard." Thus was the court reminded of the risk to society of the reckless kite flyer. In case anybody, by now, did not take the responsibilities of kite flying seriously, Miss Alkalay observed that never, never can kites weighing more than five pounds be flown higher than 150 feet unless the FAA grants approval 24 hours in advance.

No wonder air traffic controllers get tense.

Another few arguments by the prosecution, and Mr. Cuttitta's 13-ounce kite would begin to look as deadly as a Libyan jet.

All in all, it was a close call. If Mr. Cuttitta's kite had weighed a bit more, or if the judge, Jerome M. Becker, had not been in such a blithe mood, declaring the case was "for the birds". . . . Well, who knows?

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We don't like to think Mr. Cuttitta won on a technicality or a whim, though. A couple of other explanations strike us as possible. One could decide, for instance, that solidarity carried the day. The kite-flying community of Brooklyn did, in fact, rally around Mr. Cuttitta as Brooklyn has rallied around few causes since the Dodgers long ago deserted for Los Angeles. A Brooklyn Kite Club instantly formed itself, and the day before Mr. Cuttitta's appearance in court more that 100 kite flyers mustered on the scene of the alleged crime, sporting everything from Chinese dragon kites to French military kites. Hark! Does anybody hear a chorus of "Allons, enfants de la patrie"m sung with a Brooklyn accent on the kite-tossed wind?

A second hypothesis can also be maintained. Here, in the Cuttitta case, play has been taken seriously -- the rights of a perfectly useless piece of paper or cloth to flutter gracefully if it gives pleasure. This is the justice we like to think prevailed. Such justice perceives that setting aside space for art as well as necessity ism a necessity.

The air of the 21st century may become filled with space platforms, missile systems, orbiting nuclear dumps, weather control devices, nonstop jet to everywhere -- not to mention police helicopters. But if there is a reserved lane -- below 1,000 feet, of course -- for a kite or two, can the future be all that bad?

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