Supreme Court, Kings County, July 7, 2020

Janet Sabel, Legal Aid Society (Michael Rooney and Nora Carroll of counsel), for petitioner.

Eric Gonzalez, District Attorney (Caryn Teitelman and Lauren Silver of counsel), for the People.

Petitioner, under indictment for murder in the second degree and other charges, moves for a writ of habeas corpus, arguing that his current remand status violates his rights under the Federal and State Constitutions.^[FN1] The People oppose.

The instant writ comes before this court in its capacity as the Miscellaneous Motions Part. In determining this motion, the court considered defendant's petition for a writ of habeas corpus, with attached exhibits,^[FN2] and the oral arguments of petitioner and the People, which took place on June 29, 2020.^[FN3]

This court's role is not to conduct a de novo determination of bail, but to review the propriety of Justice Konviser's decision and decide whether it constituted an abuse of discretion—meaning that it comported with the statute, that it was supported by the record, and that it had a rational basis (People ex rel. Rosenthal v Wolfson, 48 NY2d 230 [1979]; People ex rel. Fischetti [*2]v Brann, 166 AD3d 29 [1st Dept 2018]).

Defense counsel argues that the Judge "indisputably" based her decision exclusively on the fact that the defendant is charged with murder in the second degree, and relied on what counsel terms "now-stricken" bail factors. And indeed, the People argued for Mr. Haynie's continued detention based in large part on the strength of the case against him.

To begin with, Justice Konviser was not simply authorized, but obligated, to consider the nature of the charges against the defendant. In fact, the revised statute (CPL 510.30 [1] [b]) lists as the second factor that must be considered "the charges facing the principal."

{**68 Misc 3d at 681}The first question presented by this application is whether the bail court impermissibly considered factors eliminated when the statute was amended. Those factors would include "the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction" (former CPL 510.30 [2] [a] [viii]), and "the sentence which may be . . . imposed upon conviction" (former CPL 510.30 [2] [a] [ix]).

At least one case analyzing the revised bail statute concluded that while a bail court is no longer required to consider the strength of the People's case, it is still permitted to consider that factor if it finds that issue relevant to the risk of flight. In People v Portoreal (66 Misc 3d 497 [Sup Ct, Bronx County 2019]), Justice Greenberg considered the language of CPL 510.30 (1), as currently written, that obliges the court to "impose the least restrictive kind and degree of control . . . necessary to secure the principal's return to court when required." When doing so, the statute directs, "the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal's return to court, including [the factors set forth in paragraphs (a) through (h)]" (CPL 510.30 [1] [emphasis added]). He found it significant that the statute did not categorize these factors as exclusive, and observed that the current list eliminated some factors that have often weighed in favor of a defendant's release, such as an individual's family ties and the length of residence in the community (former CPL 510.30 [2] [a] [iii]). Ultimately, Justice Greenberg concluded that the enumerated factors are illustrative, rather than exclusive.

This court declines to find that the additional factors not incorporated into the current list must be considered "stricken." I would note, parenthetically, that much of defendant's bail application before Justice Konviser related to Mr. Haynie's family ties, his length of residence in the community, and the support and supervision his family could provide if he were released. It would be an inconsistent interpretation of the new statute to find that a defendant could present arguments about the no-longer-listed family ties and residence in the community (former CPL 510.30 [2] [a] [iii]) but the People could not present arguments about the no-longer-listed strength of the case (former CPL 510.30 [2] [a] [viii]) and the possible sentence if convicted (former CPL 510.30 [2] [a] [ix]).

The nature of the charges and the possible sentence faced by the principal, in this instance a mandatory life sentence, may{**68 Misc 3d at 682} therefore be considered by the bail court, as they are unquestionably factors that are relevant to the risk of flight. It would be naive to think otherwise.

The record of the proceedings before Justice Konviser demonstrates a number of things.

First, this was by no means a perfunctory proceeding. The Judge acknowledged her receipt and careful review of the lengthy submissions by defense counsel. The parties were on the record for some 40 minutes. The length of the court appearance was circumscribed by the [*3]availability of videoconferencing through the Department of Correction, but there is no indication that the parties did not have a full opportunity to present their arguments. It is noteworthy that at one point the clerk tried to hurry Justice Konviser before their allotted time expired, but she refused to be rushed in putting her conclusions on the record.

Second, this was not a brand new case, or a proceeding before a judge unfamiliar with it. This matter has been pending for one year (and had been pending for almost 11 months by the time the bail application submission was filed). Counsel acknowledged that they had not elected to make a bail application at an earlier time. Since the transfer of the case to Justice Konviser in January of this year, it has appeared on her calendar three times; the court file indicates that she was continuing to monitor compliance with discovery rulings and had issued a protective order.

Third, Justice Konviser's comment about Mr. Haynie "happily" surviving incarceration on Rikers Island as a 19 year old, while the deceased "was not so lucky," was not a sua sponte remark that suggested his remand was either punitive or imposed purely for public safety reasons. Rather, that comment, while arguably inappropriate, was in response to defense counsel's opening remark (also not appropriate, in this court's opinion) that he doubted he, himself, would have survived incarceration there at a similar age.

Fourth, Justice Konviser identified a number of issues that she found troubling vis-á-vis the granting of bail. Specifically, she pointed to unresolved conflicts regarding where the defendant lived and with whom. Since counsel had devoted a large portion of his application to the ability of Mr. Haynie's mother, and other relatives in the home, to supervise him, the Judge noted her concern that their full-time availability to do so could change once they returned to work. She also asked for{**68 Misc 3d at 683} confirmation of counsel's assertion that Mr. Haynie had no juvenile record, but counsel acknowledged that the information to that effect came from his client and the client's family, and that he had not undertaken his own independent confirmation one way or the other. The Judge also closely questioned the People about the effect of the new bail statute on the case.

Fifth, while the court and defense counsel sparred, for lack of a better word, about the import of the Lum, Ma & Baiocchi study weighing the impact of bail on case outcomes,^[FN4] the study itself confirmed that its "inferences do not pertain to crimes that are so minor that no judge would ever set bail nor to crimes that are so heinous that all judges would necessarily set bail" (id. at 50-51). Counsel acknowledged that it was not exactly "on point" but was submitted to the court "for completeness." The discussion that ensued, therefore, was essentially philosophical; whatever the Judge's "understanding" of the study's conclusion, it was not relevant to the determination being reviewed here.

Sixth, Justice Konviser acknowledged what she referred to as the "colliding principles" at play—weighing the seriousness of the case (a case that is, in her words, "as serious as it gets") against the bail reform statute's presumption of pretrial release.

Seventh, after denying defendant's bail application, Justice Konviser specifically invited counsel to raise any subsequent change in circumstances for her future consideration.

There is no question that Justice Konviser found this a difficult decision to make. She expressed that very clearly and forthrightly. The Judge stated specifically that she was making an individualized determination as it relates to this defendant. And that brings us to the second issue presented by this petition.

Counsel argues, essentially, that Justice Konviser failed to go through the list of enumerated factors and give her ruling on each one individually. The requirement of an individualized determination, undefined in the statute, suggests a direction that a court not reflexively set bail or remand a defendant, but rather that this be done, if it is going to be done, thoughtfully, and only after considering that person's specific circumstances.{**68 Misc 3d at 684} Does the statute require a catechistic recitation of all the listed factors? This court does not believe it does, so long as the record reflects the nature and substance of the court's ruling.

The third and final question presented is whether Justice Konviser complied with the requirement contained in CPL 510.10 (1), i.e., that the court explain its choice of release, release with conditions, bail or remand on the record. That directive, again undefined in the statute, appears self-explanatory. The Judge must put the basis of her determination on the record. And Justice Konviser did that, though perhaps without the degree of specificity counsel argues was necessary. She stated, succinctly, that "I don't believe there is a condition, a least [sic] restrictive means that I can put on to ensure the defendant's return because of what the defendant is facing, and, so, I am denying the application . . . ." Once again, does the statute require a catechistic recitation of all the alternatives, and a specific statement of why a particular alternative was rejected? This court does not believe it does, so long as the record reflects the nature and substance of the court's ruling.

Whether I would have reached the same decision, had the bail application been made before me, has no bearing in this matter. The sole question is whether Justice Konviser abused her discretion in reaching the decision she came to. I conclude that she did not.

Accordingly, the petition is dismissed.