Supreme Court, Queens County, October 13, 2020

Janet Sabel, The Legal Aid Society, Queens (Diana Nevins of counsel), for defendant.

Melinda Katz, District Attorney, Queens (Alyssa Wanderon of counsel), for plaintiff.

Defendant Derrick Jackson is charged with, among other offenses, criminal possession of a weapon in the second degree. For several months, during the late winter and spring of 2020, while New York City was the epicenter of the global COVID-19 pandemic, defendant's case was administratively adjourned.

Defendant's case was ultimately calendared for an in-person court appearance on September 16, 2020—over six months after he had last set foot in the courthouse. In response to the court's scheduling of that appearance, defendant and his attorney submitted a request not to appear in person. They asserted, relying on Executive Order (A. Cuomo) No. 202.60 (9 NYCRR 8.202.60), which was issued by the Governor on September 4, 2020, that the court does not have the authority to require an in-person court appearance without the parties' consent—which they will not give.^[FN1] The court disagrees with that interpretation of the executive order, and directs the parties to appear for an in-person appearance notwithstanding their lack of consent.

Defendant was arrested, along with two codefendants,^[FN2] in February 2018. The three were indicted shortly thereafter and{**69 Misc 3d at 1056} charged with, among other offenses, criminal possession of a weapon in the second degree, a class C violent felony offense (Penal Law § 265.03 [1] [b]). Defendant was released on bail on March 15, 2018.

Defendant last physically appeared in court on March 6, 2020. The following week, in response to the rapidly escalating COVID-19 public health emergency, court operations were sharply reduced so that only essential matters were being heard (see Admin Order of Chief Admin Judge of Cts AO/3/20 [issued Mar. 17, 2020]; People ex rel. Nevins v Brann, 67 Misc 3d 638, 640-642 [Sup Ct, Queens County 2020]). In order to safely address these essential applications, the courts quickly implemented a system for conducting virtual court appearances, utilizing the Skype for Business videoconferencing platform. In addition, in response to requests from the bar, the court developed a procedure for parties to file emergency applications by email. Later, the court began accepting motions and other applications through the Electronic Document Delivery System, which was developed by the Unified Court System for courts, like this one, that did not have an electronic filing system already in place.

As the pandemic wore on, the capacity of the court to virtually hear cases expanded significantly. At the same time, in a series of executive orders, the Governor suspended and modified certain limitations on the use of electronic court appearances contained in the Criminal Procedure Law (see CPL 182.20 [1]; 182.30). These executive orders allowed courts to, among other things, conduct preliminary felony hearings, accept felony guilty pleas, and impose sentences via videoconference (see e.g. Executive Order [A. Cuomo] No. 202.28 [9 NYCRR 8.202.28] [issued May 7, 2020]; Executive Order [A. Cuomo] No. 202.48 [9 NYCRR 8.202.48] [issued July 6, 2020]).

By mid-June, the prevalence of COVID-19 in New York City had decreased to a sufficient extent that the court system began a gradual resumption of in-person operations. The first steps of this process mainly involved increasing staffing at courthouses in order to further expand their capacity to conduct virtual appearances. But, by mid-July, the Office of Court Administration deemed it safe, based on standards set forth by the Governor, to start permitting a limited number of in-person court appearances. Initially, the modest number of in-person appearances{**69 Misc 3d at 1057} at New York City courthouses was capped at 10 appearances per court, per day.^[FN3]

After several months of administrative adjournments, defendant's case was conferenced virtually on June 22, 2020. Although the court originally adjourned the matter for another virtual appearance on September 16, 2020, and excused defendant's presence, the court reserved the right to "change [its] mind" about both the excusal and the format of the proceeding. The case was later scheduled for an in-person appearance. Defendant and his attorney seek to be excused from this appearance (and to appear virtually) asserting, inter alia, that they cannot be required to appear in court if they do not consent.^[FN4] They claim that Executive Order No. 202.60 has created this backwards state of affairs—that is, one in which the parties, not the court, get to decide how a court appearance is conducted.

Executive Order No. 202.60, one of Governor Cuomo's most recent executive orders issued in connection with the COVID-19 pandemic, provides, in relevant part, that "for any [court] appearance which has been required to be in-person [it] may continue to be conducted virtually with the consent of the parties" (Executive Order [A. Cuomo] No. 202.60 [9 NYCRR 8.202.60]). In defendant's view, this provision conditions conducting an in-person court appearance on the consent of the parties. The court strongly disagrees.

In evaluating the reasonableness of defendant's interpretation of Executive Order No. 202.60, some context is helpful.{**69 Misc 3d at 1058} Prior to the COVID-19 pandemic, virtual court appearances—or "electronic appearances," as they are called in the Criminal Procedure Law (CPL 182.10 [2])—were only authorized in certain counties, including all five counties in New York City (see CPL 182.20 [1]). An "electronic appearance" is defined in the CPL as an appearance conducted by videoconference in which "all of the participants are simultaneously able to see and hear" each other, and the defendant is either present with counsel, "or if the defendant waives the presence of counsel on the record," the defendant and his or her attorney can be in separate locations, as long as they "are able to see and hear each other and engage in private conversation" (CPL 182.10 [2] [a], [b]).

The CPL imposes a number of restrictions on electronic appearances. For one thing, a court may only conduct an electronic appearance when the defendant consents, after having the opportunity to consult with counsel about the nature of the proceeding (CPL 182.20 [1]). Moreover, once an electronic appearance has commenced, the appearance must be "terminated" if either party requests it and provides any "articulated reason" (CPL 182.20 [1]).

Beyond these statutorily-imposed consent requirements, an electronic appearance cannot be utilized where, for instance, a defendant is pleading guilty to a felony, or being sentenced following a felony conviction (CPL 182.30 [1]). Along the same lines, a defendant may not plead guilty to a misdemeanor during an electronic appearance when the sentence that will be imposed exceeds the time the defendant has already served, unless that sentence will only be imposed if the defendant fails to meet the conditions of receiving a non-incarceratory sentence (CPL 182.30 [4], [5]). In addition, a defendant may not appear remotely at a hearing or trial (CPL 182.20 [1]).

For obvious reasons, these statutory limitations were undesirable and burdensome in the midst of the COVID-19 crisis. Notably, at the outset of the pandemic, when there was tremendous concern about the possibility that COVID-19 would spread quickly and pervasively inside of jails, prosecutors and defense attorneys worked together to negotiate dispositions where detained defendants would resolve their cases by pleading guilty and then either receive a non-incarceratory sentence or be released pending sentence, with the understanding that sentencing would be deferred until the pandemic had abated to a sufficient extent. The CPL's various restrictions on electronic{**69 Misc 3d at 1059} appearances seemingly posed a potential barrier to these sorts of proceedings, even though at least one appellate court has held that, in extraordinary circumstances, courts have the discretion to disregard these provisions and can invoke their inherent authority to allow an electronic appearance by the defendant even where the statute prohibits it (see People v Krieg, 139 AD3d 625 [1st Dept 2016]; cf. People v Wrotten, 14 NY3d 33 [2009]).^[FN5]

The first executive order to address the electronic appearance statute was issued on March 12, 2020. It retained the prohibitions on utilizing virtual appearances for most plea and sentencing proceedings, as well as the defendant appearing virtually at a hearing and trial. It also continued the requirement that electronic appearances could only be held with the defendant's consent. But it expanded the availability of electronic appearances to the entire state, "provided that the chief administrator of the courts . . . authorized the use of electronic appearance[s] due to the outbreak of COVID-19" (Executive Order [A. Cuomo] No. 202.1 [9 NYCRR 8.202.1]).^[FN6]

Subsequent executive orders went further. Executive Order No. 202.28, issued on May 7, 2020, modified "[s]ection 182.30 of the Criminal Procedure Law, to the extent that it would prohibit the use of electronic appearances for certain pleas" (Executive {**69 Misc 3d at 1060}Order [A. Cuomo] No. 202.28 [9 NYCRR 8.202.28]). And it also modified "[s]ection 180.60 of the Criminal Procedure Law" so that "all parties' appearances at [a preliminary felony] hearing, including that of the defendant, [could] be by means of an electronic appearance" (id.). Two months later, in Executive Order No. 202.48, the Governor further modified CPL 182.30 to suspend its prohibition on the use of electronic appearances for certain kinds of sentencing proceedings—a logical extension of the prior easing of the restriction on felony pleas being taken virtually (Executive Order [A. Cuomo] No. 202.48 [9 NYCRR 8.202.48]).

This was effectively the state of the law with respect to electronic appearances when Executive Order No. 202.60 was issued on September 4, 2020. Many of the restrictions on the use of virtual proceedings were temporarily suspended, as recounted above, but the Governor never modified the consent requirements contained in CPL 182.20 (1). Thus, even where electronic appearances have been temporarily authorized for certain types of proceedings by an executive order, the consent of the defendant is still required to conduct a virtual proceeding. To all of this, Executive Order No. 202.60 added this provision: "[A]ny appearance which has been required to be in-person may continue to be conducted virtually with the consent of the parties" (Executive Order [A. Cuomo] No. 202.60 [9 NYCRR 8.202.60]).

It is not clear to whom or what Executive Order No. 202.60 is referring when it discusses "required" in-person appearances. The Criminal Procedure Law, of course, requires the personal presence of the defendant at certain types of proceedings (see e.g. CPL 260.20 [presence at trial], 380.40 [1] [presence at sentencing]; see also 195.20 [requiring a written waiver of indictment to be executed by the defendant "in open court in the presence of his attorney"]). In other scenarios, a judge may require a defendant to personally appear in court, instead of excusing his or her appearance or allowing the appearance to be conducted remotely (see CPL 182.20 [2]). In either case, the defendant's personal appearance has been "required," but the authority underlying the requirement is different.

Defendant contends that Executive Order No. 202.60 applies to both situations and serves to preclude a judge from requiring an in-person court appearance when the parties would prefer to appear virtually. In other words, in his view, the executive order has not simply continued to suspend certain provisions{**69 Misc 3d at 1061} in the CPL that might foreclose the option of conducting a court appearance virtually, but also stripped judges of the authority they independently possess to require parties to personally appear in court, unless they consent to doing so.

There are several problems with this position. The first is that it is contradicted by what the executive order actually says (cf. People v Roberts, 31 NY3d 406, 418 [2018] ["the starting point in any case of interpretation must always be the language itself" (internal quotation marks omitted)]). The relevant provision states that, where an in-person court appearance is "required," it "may . . . be conducted virtually with the consent of the parties" (Executive Order [A. Cuomo] No. 202.60 [9 NYCRR 8.202.60] [emphasis added]). Obviously, all that means is that courts continue to have the flexibility to conduct virtual appearances in certain situations where, ordinarily, an in-person appearance would be required by the Criminal Procedure Law—which makes perfect sense, since, regrettably, the pandemic is not yet over. Moreover, consistent with CPL 182.20 and Executive Order No. 202.1, proceeding virtually still requires the parties' consent unless the court relies upon its inherent authority to proceed virtually without the consent of the parties along the lines set forth in People v Krieg (139 AD3d 625 [1st Dept 2016]). In this respect, Executive Order No. 202.60 represents an apparent acknowledgment that, even with all of the advantages of contemporary videoconferencing technology, there are still situations where an in-person appearance may be desired by one of the parties. Yet, contrary to defendant's contention, Executive Order No. 202.60 cannot be read to mandate virtual court appearances if the parties prefer not to appear in person.

Significantly, the courts' authority to determine the most effective way to conduct certain proceedings—including whether to conduct them in court, in the traditional manner, as opposed to virtually, by videoconference—derives from their inherent authority to create processes to administer justice. "It is ancient and undisputed law that courts have an inherent power over the control of their calendars, and the disposition of business before them" (Plachte v Bancroft, Inc., 3 AD2d 437, 438 [1st Dept 1957]). And "this power exists independently of statute" (id.; see also Gabrelian v Gabrelian, 108 AD2d 445, 448 [2d Dept 1985] ["courts of record . . . are vested with inherent powers, which are neither derived from nor dependent upon express statutory authority, and which permit such courts to{**69 Misc 3d at 1062} do all things reasonably necessary for the administration of justice within the scope of their jurisdiction"]; Judiciary Law § 2-b [3]). And this essential feature of the judicial function may not be so arbitrarily restricted.

To be clear, though, the court does not believe that Executive Order No. 202.60 intended to improperly restrict the court's inherent authority; the relevant language in the order makes that plain. But beyond that, if the judiciary needed the consent of litigants and attorneys to order an in-person court appearance, the results would be both predictable and absurd. A defendant in a criminal case, for example, could withhold consent to appear in court because he did not want the judge to set bail, impose a sentence of incarceration, address an alleged violation of an order of protection, or discover that he had been videoconferencing into prior court appearances from a foreign country without an extradition agreement with the United States. And prosecutors, for their part, could withhold their consent whenever they wished to avoid pointed (in-person) questioning from the court about a discovery dispute or the status of their trial readiness.

And not only that—if the parties had veto power over in-person proceedings, they could prevent the case from moving forward at all. As discussed, the CPL does require the parties' consent before the court can conduct a virtual proceeding (but see supra at 1061 [discussing Krieg (139 AD3d 625)]), and the pertinent executive order has not modified those statutory provisions. Thus, if defendant was correct that consent was also required for the court to hold an in-person court appearance, the court's authority to schedule any sort of court appearance would be effectively nonexistent.

One final point on this issue. Since the courts began requiring in-person appearances in certain cases several months ago, many defense lawyers have asserted, citing the Governor's executive orders, that their consent is a prerequisite to holding such an appearance. They have, in other words, contended that judges currently lack the authority to unilaterally order litigants to appear in court. Such a claim could be definitively resolved in a CPLR article 78 proceeding (see Matter of Brown v Blumenfeld, 89 AD3d 94, 101-103 [2d Dept 2011]). But, to this court's knowledge, no litigation along those lines has been initiated, which is perhaps a reflection of the amount of confidence the proponents of this position actually have in this particular argument.{**69 Misc 3d at 1063}

In sum, the court rejects the contention that the parties' consent is required to conduct an in-person court appearance. And the court further concludes that an in-person appearance in this case is necessary at this time, given the seriousness of the charges defendant is facing and the fact that he has not physically appeared in court in many months. Defendant and defense counsel are, accordingly, directed to appear in court as scheduled.

"CPL article 182 is plainly focused on administrative convenience and conservation of resources in routine nonsubstantive court appearances, and it does not address a defendant's appearance at trial by videoconferencing for valid and exceptional medical reasons. In light of a court's broad discretion inherent in the Constitution and Judiciary Law § 2-b (3) to use appropriate innovative procedures to fulfill the court's functions, we reject the notion that the statute precluded the procedure considered but rejected by the trial court" (id. at 627 [emphasis added]).