Criminal Court of the City of New York, Richmond County, May 29, 2020

The Legal Aid Society, Staten Island (Mallory Harwood of counsel), for defendant.

Michael E. McMahon, District Attorney, Staten Island (Sharon Covino of counsel), for plaintiff.

The defendant was charged in a first felony complaint with criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), criminal contempt in the first degree (Penal Law § 215.51 [b] [i]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), criminal contempt in the second degree (Penal Law § 215.50 [3]), harassment in the second degree (Penal Law § 240.26 [1]) and trespass (Penal Law § 140.05), and released on his own recognizance. Ten days later, the defendant was charged in a second felony complaint with assault in the second degree (Penal Law § 120.05 [2]), criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), assault in the third degree (Penal Law § 120.00 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), menacing in the second degree (Penal Law § 120.14 [1]), and harassment in the second degree (Penal Law § 240.26 [1]). Bail was then set on both pending cases. The defense moved to reargue the bail determination, claiming that the court was not authorized to set bail on the first case, because the defendant was charged with all non-qualifying offenses, and requested that $1 bail be set. In the alternative, defense counsel argued that any change in the securing order must follow a "full" hearing based upon "admissible evidence" and rest upon this court finding by "clear and convincing evidence" that the defendant violated a condition of release in an important respect pursuant to CPL 510.40 (3). For the reasons stated below, the defendant's motion to reconsider bail is denied.

The defendant was arrested on April 14, 2020 (docket No. 1658) (first case), and charged with, among other crimes, criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]) and criminal contempt in the first degree (Penal Law § 215.51 [b] [i]), both non-qualifying offenses as charged, under CPL 530.20 (1) (b). The contempt offense was non-qualifying because the protected party was not a member of the defendant's same family or household (CPL 530.11 [1]). He was released on his own recognizance and the case was adjourned for grand jury action.{**69 Misc 3d at 182}

Before the case was presented to the grand jury, the defendant was rearrested 10 days later (docket No. 1735) (the second case) and charged with, among other crimes, assault in the second degree (Penal Law § 120.05 [2]), a bail eligible offense. At the defendant's second arraignment, the People requested bail in the amount of $15,000 for the second case. They also had the first case advanced and requested bail in the amount of $15,000, based on the defendant's arrest for a felony while already at liberty on a felony. The second arraignment court set bail in the amount of $5,000 insurance company bail bond, $2,500 cash, and $2,500 in partially secured bond (secured by 10%) as the least restrictive alternative to secure his return on each case. In reaching its bail decision, the court found it probable that the defendant would not return to court. The court outlined the factors it considered, including the defendant's activities and history, pending charges, his prior criminal convictions (which included three felony and two misdemeanor convictions), prior order of protection violations, his ability to post bail without undue hardship and obtain a secured, unsecured or partially secured bond, and two prior probation revocations. The court adjourned both cases to May 22, 2020, for grand jury action.

On April 29, 2020, defense counsel emailed this court and the People, arguing that bail was not authorized on the first case, because the defendant was charged with all non-qualifying offenses, and requested that $1 bail be set. Defense counsel argued that the only way bail could be set on the first case is after an evidentiary hearing pursuant to CPL 530.60 (2) (c). In the alternative, defense counsel argued that any change in the securing order must (1) follow a hearing based upon "admissible evidence" and (2) rest upon a finding by "clear and convincing evidence" that the defendant violated a condition of release in an important respect pursuant to CPL 510.40 (3).

On May 28, 2020, the court conducted another hearing pursuant to CPL 530.60 (2) (a) to determine if there was reasonable cause to believe that the defendant committed a violent felony offense while at liberty on a felony. The People did not call any witnesses and instead relied on the felony complaints before the court. This court took judicial notice of both court files and felony complaints. Defense counsel objected, stating that the felony complaint is inadmissible hearsay and that a witness must be called to establish relevant admissible evidence.{**69 Misc 3d at 183}

CPL 530.60 provides three different situations when a court can modify a securing order, each with its own legal standard. First, CPL 530.60 (1) provides that "the court, for good cause shown, may revoke the order of recognizance, release under non-monetary conditions, or bail" and then issue another securing order (emphasis added). Second, CPL 530.60 (2) (a) provides that a securing order may be modified when "the court finds reasonable cause to believe the defendant committed one or more specified class A or violent felony offenses or intimidated a victim or witness" while at liberty from another pending felony (emphasis added). Third, CPL 530.60 (2) (b) states in pertinent part that, "[e]xcept as provided in paragraph (a) of this subdivision or any other law," a court may revoke a securing order and fix bail in cases where the defendant is released on his or her own recognizance, or released under non-monetary conditions, or bail, when the court has found by clear and convincing evidence that the defendant (i) "persistently" and "willfully" failed to appear for scheduled court appearances, (ii) violated an order of protection, (iii) intimidated a witness, or (iv) committed a felony while at liberty on another pending felony case (CPL 530.60 [2] [b] [i]-[iv]). The statute further provides that before revoking a securing order pursuant to this subdivision, "the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged" (CPL 530.60 [2] [c]). In such a hearing, "[t]he defendant may cross-examine witnesses and may present relevant, admissible evidence on his own behalf" (id.).

CPL 510.40 (3) allows the court to impose additional release conditions after finding by clear and convincing evidence that a defendant violated a previously imposed release condition in an important respect. The defendant must be given notice of the alleged noncompliance's facts and circumstances. Both the defendant and the People must be given an opportunity to present "relevant, admissible evidence, relevant witnesses and to cross-examine witnesses" (CPL 510.40 [3]).

"The legislature, when passing the new bail statute, was deeply committed to the ideal of no cash bail or remand for non-qualifying offenses, and yet recognized that safeguards needed to be in place to address situations in which defendants released on{**69 Misc 3d at 184} non-qualifying offenses repeatedly failed to return to court, or committed certain new crimes while at liberty." (See People v Garcia, 67 Misc 3d 511, 517 [Crim Ct, Bronx County 2020].)

We are faced with one such situation here.

CPL 530.60 provides three different methods for changing a securing order, depending on the factual circumstances. (See Garcia, 67 Misc 3d 511.) This court has applied the standard outlined in CPL 530.60 (2) (a) to the instant case. The court need not be satisfied that the defendant committed the new criminal charge—only that a legitimate basis for the arrest on the new charge exists. (See People v Outley, 80 NY2d 702 [1993].) Moreover, in New York courts have long been able to take judicial notice of a record in the same court for either a pending matter or some other action (People v Dritz, 259 App Div 210 [2d Dept 1940]; see e.g. People v Suarez, 51 Misc 3d 620 [Crim Ct, NY County 2016] [court took judicial notice of proceedings in an underlying case to find a complaint charging bail jumping in the third degree facially sufficient], citing Hunter v New York, Ontario & W. R.R. Co., 116 NY 615 [1889], and People v Perez, 195 Misc 2d 171 [Crim Ct, NY County 2003]).

A "felony complaint" is defined as a

"verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more felonies and which serves to commence a criminal action but not as a basis for prosecution thereof." (CPL 1.20 [8].)

Here, the second felony complaint was sworn by Police Officer Michael Kirchhoffer, who affirmed under the penalty of perjury that the defendant assaulted another individual with a weapon. In Outley, the Court of Appeals held that there was a legitimate foundation to find a legitimate basis for a contempt charge arrest based on the fact that the defendant's wife had signed the complaining affidavit.

Based on the defendant's new arrest, a reading of the felony complaint on the second case, a review of both court files, and the record made by the People, the court finds that there is reasonable cause to believe that the defendant committed a violent felony offense while at liberty on another pending felony. Accordingly, the securing order's modification by the second arraigning{**69 Misc 3d at 185} judge for the first case stands. The People, who had the burden of proof, were entitled to move forward on the hearing in any way they deemed appropriate. The defense's complaint that the People only relied on the documentary evidence and did not present a person to testify is specious. If the People needed to call a witness to meet their burden, the defendant would have had the right to cross-examine that witness. But, once the People met their burden based on documents they were not required to call a witness as well. The defense likewise was free to call any witness or present any documentary evidence they chose. They chose to stand silent—which was their right—and the People prevailed.

Finally, CPL 510.40 (3) does not apply in the instant case. "It is clear from the face of section 510.40 (3) that it governs the imposition of additional non-monetary release conditions after a defendant's noncompliance with conditions originally set, not the setting of bail after the revocation of the original conditions" (Garcia, 67 Misc 3d at 520-521). Release with conditions is distinct from bail and subdivision (3) specifically contemplates what the court needs to do when changing the conditions already imposed. Subdivision (3) does not reference the imposition of bail at all (id.). Here, the second arraigning court did not change the non-monetary conditions in the first case; it revoked the first securing order and set bail.