Supreme Court, Bronx County, December 16, 2020

Legal Aid Society (Shannon Griffin of counsel) for petitioner.

Darcel D. Clark, District Attorney (Cassandra Papandrew of counsel), for respondent.

Petitioner Brian Cespedes seeks habeas corpus relief. He asserts that the bail set on indictment Nos. 1657/2018 and 478/2020 by Justice Alvin Yearwood on October 9, 2020, is excessive{**72 Misc 3d at 239} and violates his rights under New York's bail statute, the Excessive Bail Clause of the Eighth Amendment to the United States Constitution, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.^[FN1]

Each indictment charges petitioner Cespedes with criminal possession of a weapon in the second degree (a class C violent felony), among other charges, for possessing a loaded firearm. Petitioner was arrested on the 2020 gun case while released on recognizance on the 2018 gun case.

Bail on the earlier 2018 gun case was reset by Justice Yearwood on October 9, 2020, at $5,000 cash, or $10,000 insurance company bail bond, or $20,000 10% partially-[*2]secured bond, or a $3,000 credit card payment.

Bail on the later 2020 gun case was originally set by Judge Erik Gray at petitioner's initial arraignment at $75,000 in cash, 10% partially-secured bond, or insurance company bail bond; and Justice Yearwood maintained those bail conditions on October 9, 2020, as well.

For the reasons detailed below, the bail set on each case was proper, and the petition will be dismissed.

Petitioner's Criminal History

Petitioner Brian Cespedes is a 20-year-old man. His criminal history record (or "rap sheet") indicates that, apart from the two instant open gun indictments, petitioner has a 2016 juvenile delinquent adjudication for assault in the second degree with a weapon or dangerous instrument (Penal Law § 120.05 [2]) for which he received a sentence of 15 months' probation, and an adjournment in contemplation of dismissal for a July 2019 misdemeanor arrest (for inciting to riot, and related charges).

May 2018 Arrest

Petitioner was arrested on May 26, 2018, and charged with criminal possession of a weapon in the second degree. It is alleged{**72 Misc 3d at 240} in substance in that case that petitioner and his companions, upon seeing the police approach, discarded two loaded guns under a parked car.

Petitioner was initially released on his own recognizance on the 2018 case. In August of 2018, a grand jury voted indictment No. 1657/2018 charging petitioner Cespedes with two counts of criminal possession of a weapon in the second degree and related crimes. The 2018 case was calendared in Part 77 pending trial, and petitioner Cespedes voluntarily appeared on that case a number of times without incident until his rearrest in August of 2020.

August 2020 Arrest

On August 12, 2020, petitioner Cespedes was once again arrested and charged with criminal possession of a weapon in the second degree and related charges.

In the 2020 case the prosecution in substance alleges that petitioner Cespedes became embroiled in some kind of a dispute inside a bodega. As shown on surveillance video, petitioner was wearing a "fanny pack" while inside the bodega. The police were summoned. As the police approached, petitioner discarded the fanny pack just outside the bodega. The police recovered it almost immediately, and found a loaded gun inside.

Bail Set at Arraignment

Petitioner was arraigned before Judge Erik Gray later that same day (Aug. 12, 2020). The prosecutor requested that bail be set in the amount of $150,000 cash, or insurance company bail bond, or 10% partially-secured bond.

In support of that request, the prosecutor briefly described the alleged facts of the new 2020 gun case. The prosecutor further reviewed the facts in petitioner's earlier 2018 case, stating that in the 2018 case petitioner and a codefendant were seen abandoning two loaded guns underneath a parked car as the police approached, and that DNA evidence linked petitioner and his codefendant with those two guns. Finally, the prosecutor noted that petitioner now faced mandatory consecutive sentencing if convicted on both the old 2018 and new 2020 gun cases. (Tr Aug. 12, 2020 at 3-4.)^[FN2]

Petitioner's counsel asked that petitioner Cespedes be released on his own recognizance again, as he had been{**72 Misc 3d at 241} released previously on his original 2018 case. She noted that (despite three prior arrests) petitioner had no criminal convictions and no bench warrants on his record. Counsel also noted that petitioner was enrolled in a general equivalency degree program, worked (part-time) in a supermarket, and lived with his mother. Finally, petitioner's counsel stated that petitioner appeared to be eligible for youthful offender treatment on his earlier 2018 gun case. (Id. at 4-5.)

Judge Gray then made a specific inquiry about petitioner's financial ability to post bail, and counsel responded that because petitioner's financial resources were "thin," he and his family did not have the ability to post bail of much more than $1,000. (Id. at 6.)

Judge Gray then stated:

"After oral argument and due deliberation, the Court has determined that the defendant stands charged with a qualifying offense under CPL 510.10(4). The Court has made an individualized determination pursuant to CPL 510.10(1) that defendant poses a risk of flight to avoid prosecution. Pursuant to [CPL] 510.30(1), the Court has carefully considered the available information regarding defendant that is relevant to his return to court, including his activities and history and the pending charges. Therefore, pursuant to CPL 510.10(1), the Court finds that the least restrictive condition that will reasonably assure defendant's return to court is bail in the following amounts. $75,000 cash, over $75,000 insurance company bail bond, over $75,000 partially secured surety bond at ten percent." (Tr Aug. 12, 2020 at 6-7.)

Both Cases Sent to Justice Yearwood

On August 17, 2020, the grand jury voted indictment No. 478/2020, which charges petitioner with criminal possession of a weapon in the second degree and related crimes.

On September 24, 2020, the 2018 gun case was heard by Justice Yearwood. Justice Yearwood temporarily remanded petitioner on the 2018 case pending an October 9, 2020 appearance before Justice Yearwood in Part T18, so that petitioner would receive jail time credit on the 2018 case in the interim. It was agreed that petitioner would be remanded without prejudice, and that on October 9, 2020, Justice Yearwood would hear a global bail application for both cases. (Tr Sept. 24, 2020 at 23-24.){**72 Misc 3d at 242}

On September 25, 2020, petitioner was arraigned on the new 2020 indictment and entered a plea of not guilty. The new gun case was then adjourned to October 9, 2020, before Justice Yearwood in Part T18 in order to join the old gun case, and for the global bail application mentioned above.

On October 9, 2020, petitioner's two cases (along with the case of his codefendant on his older 2018 gun indictment) were called before Justice Yearwood in Part T18. The appearance began with a lengthy discussion of prior motion practice in the case. That discussion [*3]appears to have centered upon an application to compel petitioner to provide a DNA sample. (Tr Oct. 9, 2020 at 1-11.)^[FN3]

Justice Yearwood noted that he had previously remanded petitioner pending a bail application to be conducted that day, and asked whether the parties were presently ready to proceed with that bail application. (Id. at 12.)

Petitioner's counsel stated that she was ready; but she also argued that (pursuant to CPL 530.60 [2] [a]) an evidentiary hearing was necessary before the court could set monetary bail on petitioner's 2018 gun case.^[FN4] The newly assigned prosecutor also indicated that she was ready. (Id. at 13.)

The prosecutor then argued that, because petitioner had been rearrested for his new 2020 gun case, monetary bail should now be set on his older 2018 gun case in the amount of $75,000 cash, or $225,000 insurance company bail bond, or $225,000 10% partially-secured bond. She pointed out that petitioner now faced a new class C violent felony charge, that petitioner might not be granted youthful offender status on his{**72 Misc 3d at 243} older 2018 case, and that petitioner could now face mandatory consecutive prison time on his two gun cases. (Id.)

Petitioner's counsel then (somewhat confusingly) asserted in quick succession that bail should remain the same on both cases, or definitely not be increased, or definitely be decreased. (Id.)

Petitioner's counsel subsequently clarified petitioner's position, asking that petitioner again be released on recognizance on his 2018 case, and that the court reduce bail to $35,000 on the newer 2020 case. (Id. at 15, 18.)

Petitioner's counsel first addressed petitioner's community ties and financial resources. She pointed out that petitioner's mother—who was present in court that day with her tax returns—worked at a local supermarket, where she earned an annual salary of just under $50,000. Counsel added that petitioner's mother was a single mother who supported five children and paid monthly rent of $1,120. Petitioner himself, counsel stated, was unemployed and now (obviously) incarcerated as well. (Id. at 14-15.)

Petitioner's counsel then discussed what she saw as weaknesses in the prosecution's evidence in the 2018 case. In that regard, counsel stated that four people were originally arrested in the 2018 gun case; and that one of the four (whose case had been transferred to Family Court) [*4]already had a prior gun case (and thus, presumably, might be blamed for the guns recovered in the 2018 case instead of petitioner). Counsel further argued that, although the prosecutor asserted that DNA evidence linked petitioner with one of the guns recovered in the 2018 case, there were issues with the DNA evidence (see n 3), and that petitioner adamantly denied ever touching any gun. (Id. at 15.)

Petitioner's counsel pointed out that petitioner remained eligible for youthful offender status on his 2018 case, and had never missed an appearance on that case (until rearrested), and that his mother often accompanied him to court. Based on the foregoing, petitioner's counsel argued that release on recognizance remained appropriate on petitioner's older 2018 gun case. (Id. at 16.)

As to the new 2020 case, petitioner's counsel noted that the gun in that case was recovered from a fanny pack allegedly abandoned by petitioner inside a bodega, and that no DNA evidence connected petitioner with the fanny pack. Counsel further{**72 Misc 3d at 244} argued that petitioner (although no longer youthful offender eligible) was still young (20 years old) and not likely to receive "years and years in jail" if convicted. (Id.)

Petitioner's counsel further contended that the idea that petitioner might leave the jurisdiction was "a little far-fetched" because petitioner was so dependent on his mother and had no identification, money, or passport. (Id. at 16-17.)

Then, returning to the subject of petitioner's financial ability to post bail, counsel stated that petitioner's mother had been able to put together $3,500 in cash, and counsel asked the court to therefore set $35,000 bail (presumably as a 10% partially-secured bond) on the 2020 gun case. (Id. at 17-18.)

Justice Yearwood then ruled, stating as follows:

"After considering all of the relevant factors and determining which is the least restrictive means of ensuring the defendant's return to court bail remains as it is on the new case [indictment No. 478/2020]. . . .

"On the old case, Indictment Number [1657/2018] bail is set at $5,000 cash, $15,000 [insurance company bail] bond, $20,000 [partially-secured] bond with ten percent a [sic] surety. And credit card of $3,000." (Id. at 18.)

In his petition for habeas corpus relief, petitioner asserts that the bail set on each of his two cases was excessive in amount, and further complains that the bail-setting court: (1) made no express finding that petitioner poses a risk of flight to avoid prosecution; (2) did not explain why monetary bail is the least restrictive means to assure petitioner's return to court; and (3) did not take petitioner's financial means into consideration when assessing and setting bail.

Each of these complaints is meritless for the reasons set forth herein.

New York's Bail Statute

As noted, New York's bail statute was significantly revised by the legislature effective January 2, 2020 (and then more modestly revised again, effective July 1, 2020).

By now, the general outlines of the revised bail law have become familiar and can be fairly quickly summarized. (See,{**72 Misc 3d at 245} generally, this court's opinion in People v Portoreal [66 Misc 3d 497 (Sup Ct, Bronx County 2019)].)

The clear purpose of the revisions made to New York's bail statute is to reduce unnecessary pretrial detention (while still assuring that defendants will return to court when required). That purpose is accomplished chiefly by fairly strictly limiting the crimes for which bail can be set to a relatively small group of "qualifying offenses." (CPL 510.10 [4].)

The revised CPL 510.10 (1) then further generally requires that a court must undertake a two-part analysis before imposing monetary bail on a qualifying offense. First, the court must release defendant on his own recognizance unless the court makes an individualized determination that defendant poses a "risk of flight to avoid prosecution." Second, CPL 510.10 (1) also requires that if such a determination is made, then the court is required to select the "least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court."

Finally, CPL 510.30 (1) (a)-(h) in the revised bail statute enumerates specific "criteria" or factors that must be considered when selecting the least restrictive alternative.

Habeas Corpus Standard

The legal standard applicable to a petition for habeas corpus relief alleging excessive bail is well settled. The question presented in such a case is whether the "constitutional or statutory standards inhibiting excessive bail or the arbitrary refusal of bail" have been violated. (People ex rel. Klein v Krueger, 25 NY2d 497, 499-500 [1969]; see CPLR 7010.)

The scope of habeas review of a bail determination is thus very limited. As set forth in People ex rel. Watters v Warden, Anna M. Kross Ctr. (106 AD3d 415, 415 [1st Dept 2013]):

"The proper scope of inquiry for a habeas court reviewing another court's bail determination is whether the bail court abused its discretion by denying bail without reason or for reasons insufficient in law (People ex rel. Kuby v Merritt, 96 AD3d 607, 608 [1st Dept 2012], lv denied 19 NY3d 813 [2012]). It is not the function of the habeas court to examine the bail question afresh or to make a de novo determination of bail." (Internal quotation marks omitted.)

Where the denial of bail (or the bail amount set) is supported by the record, it is an exercise of discretion relying upon a{**72 Misc 3d at 246} rational basis and thus beyond correction in habeas corpus. (People ex rel. Parker v Hasenauer, 62 NY2d 777 [1984].)

The Requirement of Explanation

CPL 510.10 (1), as amended by New York's new bail reform law, clearly requires that when a court passes upon a bail application "[t]he court shall explain its choice of release, release with conditions, bail or remand on the record or in writing." (Emphasis added.)^[FN5]

However, the newly revised bail statute gives no guidance as to how extensive or what kind of explanation is required; there is no indication in the statute as to what must be included, or what may properly be omitted, in the bail-setting court's explanation of its bail decision.

As a theoretical matter, it is easy to conceive of several possible ways to interpret this obligation to "explain."

At one end of the spectrum, the bail-setting court's obligation to explain could be quite [*5]narrowly interpreted to mean only that the bail-setting judge must make a cursory statement of reasons. Thus, by way of illustration, the requirement to explain might be deemed satisfied by a short statement from the bail-setting court along the lines of: "I find under the statute that the proper bail here is (whatever amount the court has found appropriate)."

At the other end of the spectrum, the obligation to explain could be quite expansively interpreted to mean that in every case—no matter how obvious the need to set bail or to release the defendant—the bail-setting judge must: (a) first orally paraphrase the now familiar standards for bail that are set out in the new bail statute; and then (b) further review item-by-item each of the specific bail criteria enumerated in CPL 510.30 (1) (a)-(h) as applied to the case at hand.

Neither of these approaches appears to be the proper way to construe the obligation to "explain" a bail decision that is imposed by the bail reform law.

Rather, at least in this court's view, the obligation to explain should be viewed in light of that obligation's self-evident purpose: namely, to provide a meaningful basis to review the bail decision, either in a habeas proceeding or on a subsequent appeal.{**72 Misc 3d at 247}

Accordingly, where the record that was before the bail-setting court makes obvious the reasons why the bail-setting court chose the alternative it did, a short and concise explanation should be sufficient.

Conversely, if the reasons for the bail decision are not immediately clear from the record that was before the bail-setting court, then the bail-setting court should provide a fuller explanation of its reasoning. See, by the way of analogy, Gall v United States (552 US 38 [2007] [the greater the variance between a sentencing range recommended by the Federal Sentencing Guidelines and the sentence actually imposed, the greater the obligation imposed upon the sentencing court to explain and justify the variance]).

The newly created requirement that the bail-setting court "explain" its bail decision can usefully be compared and contrasted with the somewhat similar (but much more familiar) requirement imposed by CPL 170.40 (2) and 210.40 (3) that a court granting a Clayton motion to dismiss a case in the interests of justice must "set forth its reasons therefor upon the record." (Emphasis added.) (See People v Clayton, 41 AD2d 204 [2d Dept 1973].) The comparison is useful because the obligation to "explain" imposed by the bail statute would appear to be quite similar to the obligation to "set forth its reasons" imposed by the Clayton statute.

It is now well settled that the purpose of the statutory requirement that a court "set forth its reasons" for a Clayton dismissal is to make possible "meaningful appellate review." (People v Rickert, 58 NY2d 122, 128 [1983]; see also People v Belge, 41 NY2d 60, 62 [1976]; People v Garcia, 125 AD2d 186, 187 [1st Dept 1986].)

A court passing upon a Clayton motion must, of course, consider both individually and collectively all the relevant factors enumerated in CPL 170.40 (1) (a) through (j). However, as Rickert makes clear, the court issuing a Clayton decision does not have to engage in a "catechistic on-the-record discussion of items (a) through (j), useful as that would be to indicate that in fact all applicable items have been considered." (Rickert, 58 NY2d at 128.) Rather, says Rickert, it is sufficient that the Clayton court's opinion make clear which relevant factor it relies on so that "one or more of the statutory criteria, even if only the catchall (j), will yield to ready identification." (Rickert, 58 NY2d at 128.)

Similarly, the Clayton statute strictly requires that when granting Clayton relief the court [*6]must find the existence of a{**72 Misc 3d at 248} "compelling factor, consideration or circumstance clearly demonstrating" that a conviction would result in injustice (CPL 170.40 [1]; 210.40 [1]); yet Rickert makes clear that a Clayton decision cannot be regarded as "deficient for failing to incant the 'compelling factor' phraseology" of the statute. (Rickert, 58 NY2d at 129.) What matters, of course, is the logical substance of the court's decision, and not whether the decision ritualistically "incants" key phrases from the statute.

In other words, while the Clayton statute requires that an opinion granting a Clayton motion must set forth the court's "reasons," the court's opinion does not have to parrot the language of the Clayton statute; nor must the opinion recite and expressly discuss every factor listed in the Clayton statute.

By way of illustration, in People v Wong (227 AD2d 852, 852 [3d Dept 1996]), the Appellate Division, Third Department approved a Clayton dismissal even though the opinion below was fairly sparse, stating: "While County Court did not specifically mention all of the criteria listed for consideration of dismissal as a matter of judicial discretion a laundry list of these factors is not required and County Court did identify several of the statutory criteria that the court found to be compelling." (Emphasis added and citations omitted.)

Thus in the Clayton context the requirement that the court "set forth its reasons" has been sensibly interpreted to mean only that the compelling reasons for the court's decision be set forth, so as to make possible meaningful appellate review.

[1] Similarly, in this court's view, the bail reform statute's requirement that the bail-setting court "explain" its decision should be regarded as satisfied so long as the explanation given—viewed in the light of the record taken as a whole—provides an adequate basis for review.

It should not further be necessary each time a judge rules on a bail application for the judge to orally paraphrase the statutory bail standards that are, after all, already well known to all; nor should it be necessary for the judge to review each and every possible bail factor—no matter how tangential to the case at hand—on the record.

And where the parties' bail argument already makes reference to the applicable legal standards for bail, there should be even less need for the court to repeat or paraphrase those standards in its ruling. "A court need not engage in ritualistic incantation in order to establish its consideration of a legal issue.{**72 Misc 3d at 249} It is sufficient if [the court] rules on issues that have been fully presented for determination. Consideration is implicit in the court's ultimate ruling." (United States v Davis, 53 F3d 638, 642 [4th Cir 1995] [emphasis added].)

Indeed, to require a "ritualistic" paraphrase of the statute every time a judge passes on a bail application would make even less sense in the context of a bail decision than it would in the context of a Clayton decision.

A Clayton motion is, after all, a rarity. A Clayton motion should be made only in a case where some extraordinary circumstance compels dismissal. (People v Harmon, 181 AD2d 34, 36 [1st Dept 1992].) Moreover, a Clayton motion must ordinarily be made on notice and in writing, thus allowing the court substantial time for studied reflection before rendering a carefully written decision.

By way of contrast, bail decisions are made all the time, and they are also usually made [*7]orally and immediately. For example, a judge sitting in a busy New York City Criminal Court arraignment part (when no pandemic is underway) can sometimes be called upon to make as many as 75 oral bail decisions in a single day.

To require the judge sitting in such a busy part in every case to (a) orally paraphrase the bail statute, and then (b) orally recite and analyze all the possible bail factors enumerated in the bail statute, would slow proceedings in such a part to a crawl.

As a result, all of the many defendants who are waiting anxiously to see the judge that day (so that they can then be quickly arraigned and released on recognizance) would be forced to languish in a holding cell for many additional unnecessary hours. Indeed, those defendants unfortunate enough to have cases that might otherwise be called toward the latter part of the court session would instead be forced to spend an extra unnecessary night in jail—all just so that the judge could make the required lengthy record in every case.

Plainly, that is not a sensible way, nor the correct way, to read a new bail statute that is chiefly intended to reduce unnecessary pretrial detention.

In view of all the foregoing, this court now holds that a bail court should be deemed to have satisfied its statutory obligation to "explain" its bail decision so long as the explanation given—taken together with the record that was before the bail-{**72 Misc 3d at 250}setting court—provides an adequate basis for meaningful review. The bail-setting court should not be required to unduly slow proceedings down and burden the record either by reciting statutory standards already known by all, or by engaging in a lengthy catechistic discussion of all bail factors.

In particular, it should not be necessary for the bail-setting court to "incant" like a talisman the statutory phrases "risk of flight" and "least restrictive condition," nor to go through a long "laundry list" of all of the statutory bail criteria in every case. (State of N.Y. ex rel. Rooney v Brann, 68 Misc 3d 679, 683-684 [Sup Ct, Kings County 2020] [under the new statute, the bail-setting court is not required to engage in a "catechistic recitation" of all of the alternatives before selecting the least restrictive alternative]; see also Rickert; Wong.)

A. The bail set on each indictment was reasonable in amount.

Justice Yearwood set bail on petitioner's old 2018 gun case (indictment No. 1657/2018) at $5,000 cash, or $15,000 insurance company bail bond, or $20,000 10% partially-secured bond, or $3,000 credit card payment.

On petitioner's new 2020 gun case, Justice Yearwood maintained the bail conditions set by Judge Gray at petitioner's original arraignment, which were $75,000 in cash, 10% partially-secured bond, or insurance company bond.

The bail set on each indictment was plainly reasonable. As noted, under the new bail statute the threshold question that must be asked is whether a defendant poses a risk of flight to avoid prosecution. Petitioner Cespedes plainly does pose such a risk for the following reasons.

To begin with, petitioner was a 20-year-old unemployed young man who had been arrested on two separate loaded gun cases only two years apart, and only a year or so after finishing a sentence of 15 months' probation for an assault involving a weapon or dangerous instrument. In the first gun case, it is alleged that petitioner abandoned a loaded gun by pitching it beneath a parked car as the police approached. In the second case, it is alleged that petitioner abandoned a loaded gun by discarding a fanny pack just outside a bodega as the police [*8]approached. Although the defense disputes its relevance (see n 3), there is DNA evidence that the People assert connects petitioner with a gun in the first case. In the second case, there is video evidence that connects petitioner with the fanny pack.{**72 Misc 3d at 251}

The top charge in each case is criminal possession of a weapon in the second degree, a class C violent felony. Petitioner remains eligible for youthful offender status on the earlier case, but he appears to be far less likely to receive such status in view of his second gun arrest. If convicted as an adult on both cases, petitioner Cespedes faces a mandatory minimum of 31/2 years in prison on each case; and, by law, those sentences must be run consecutively.

Thus, if convicted on both cases, petitioner faces a likely minimum sentence of seven years in prison, and a potential maximum of 30 years in prison.

Petitioner's counsel has correctly pointed out (and the prosecutor has wisely conceded) that, as a practical matter, the sentences that would be imposed upon conviction would likely be much closer to the mandatory minimum of seven years than they would be to the potential maximum of 30 years, in view of petitioner's age and lack of prior adult criminal convictions. Nevertheless, the prospect of at least seven years in prison is a frightening one, and provides a powerful motive to flee if flight is possible. And that is especially true for a young man with no job or wife or children to tie him to the community.

For all these reasons, petitioner poses a clear risk of flight to avoid prosecution.

As noted, the next consideration mandated by the bail statute is an assessment of the least restrictive alternative that will reasonably assure petitioner's return to court. Many of the same factors that lead to the conclusion that petitioner poses a risk of flight are relevant here too.

The charges against the petitioner (CPL 510.30 [1] [b]) are so serious that, as noted, he faces a sentence of between 7 and 30 years in prison. Petitioner has a very recent juvenile delinquent adjudication (CPL 510.30 [1] [d]) for a similar crime so serious that it resulted in a sentence of 15 months' probation. More generally, petitioner's activities and criminal history (CPL 510.30 [1] [a]) suggest that, since reaching the age of 16 or so, he has been consistently involved in serious trouble with the law, despite his loving mother's best efforts.

On the other hand, in petitioner's favor is the fact that he has no prior failures to appear in spite of four prior arrests. (CPL 510.30 [1] [e].)

Petitioner's means are very limited (CPL 510.30 [1] [f]), and it does not appear that he or his mother have the ability to post bail commensurate with the risk of flight that he poses.{**72 Misc 3d at 252}

For all these reasons, Justice Yearwood was fully justified in concluding that the only reasonable means that would adequately assure petitioner's return to court would be substantial monetary bail, and that no less restrictive alternative would suffice.

In this respect, Justice Yearwood concurred in the conclusion already reached by Judge Gray when petitioner was arraigned on his 2020 gun case. Indeed, even petitioner's own counsel tacitly conceded the propriety of substantial monetary bail when she affirmatively suggested to Justice Yearwood that $35,000 bail should be set on petitioner's 2020 gun case.

Given all these considerations, and after a complete and exhaustive review of all the relevant factors enumerated in CPL 510.30 (1) (a) through (h), this court concludes that the bail set by Justice Yearwood on each of petitioner's two indictments is amply supported by the record, and that the bail that was set represents an exercise of discretion relying upon a rational [*9]basis that is beyond correction in habeas corpus. (Hasenauer.)

That leaves petitioner's three complaints about the nature of the record made by Justice Yearwood when setting bail, namely that Justice Yearwood: (1) did not expressly find that petitioner posed a risk of flight; (2) did not explain why monetary bail was the least restrictive alternative; and (3) did not take into account petitioner's financial means.

B. Risk of Flight

[2] It is true that in explaining his bail decision Justice Yearwood did not use the specific phrase "risk of flight." He did, however, say that monetary bail was the "least restrictive means" of assuring petitioner's return to court. (Tr Oct. 9, 2020 at 18.)

"Risk of flight" was thus implicit in Justice Yearwood's ruling, for if there were no risk of flight to avoid prosecution then no restrictions would be necessary in order to assure petitioner's return.

Notably, Judge Gray—whose bail conditions Justice Yearwood merely continued on October 9—did make an express finding that petitioner posed a risk of flight to avoid prosecution. And even more importantly, petitioner's own counsel tacitly conceded the same point by asking Justice Yearwood to set petitioner's bail at $35,000.

More generally, for the reasons elaborated above, in this court's view the bail statute should not be read as requiring a{**72 Misc 3d at 253} ritualistic incantation of the phrases "risk of flight" and "least restrictive means," so long as the record in substance supports the bail set. (See State of N.Y. ex rel. Rooney v Brann.)

C. Least Restrictive Alternative

Next petitioner complains that although Justice Yearwood in his bail decision: (a) did expressly track the "least restrictive alternative language" of the statute; and (b) did refer to all the factors enumerated in CPL 510.30 (1) (a) through (h), in petitioner's view Justice Yearwood did not adequately explain why substantial monetary bail in the amount set was the least restrictive alternative.

Apparently, petitioner contends that before setting monetary bail a court must expressly review and then reject on the record each and every less restrictive alternative that might possibly have been used. There is, of course, no authority for this proposition, and it is on its face almost frivolous. (By way of contrast, even in a sentencing proceeding a court is not required to explain why each and every lesser possible sentence was not imposed.)

The bail statute does require that less restrictive alternatives be considered by the bail-setting court; but it does not require the bail-setting court to burden the record with an encyclopedic explanation of why it rejected each of the myriad lesser alternatives that it did not choose to impose.

D. Financial Ability to Post Bail

Finally, and somewhat similarly, petitioner complains that Justice Yearwood did not consider petitioner's "individual financial circumstances, and . . . ability to post bail without posing undue hardship." (CPL 510.30 [1] [f].)

This complaint flies in the face of the record, because Justice Yearwood did entertain a detailed and excellent presentation made by petitioner's counsel about petitioner's ability to post bail (as well as petitioner's mother's ability to post bail for him), complete with reference to petitioner's mother's income tax returns.

Plainly then, Justice Yearwood did listen to petitioner's counsel, and did consider petitioner's financial resources. (See Davis at 642 ["A court need not engage in ritualistic incantation in order to establish consideration of a legal issue. It is sufficient if (the court) rules on issues that have been fully presented for determination. Consideration is implicit in the court's ultimate ruling" (emphasis added)].)

{**72 Misc 3d at 254}The true gravamen of petitioner's complaint appears to be not that the court did not consider petitioner's finances, but rather that, after doing so, the court set bail higher than petitioner can afford. Thus petitioner's counsel (rather dramatically) writes: "By imposing unaffordable bail upon Mr. Cespedes, the Court abused its discretion by misapplying the statute and engaging in the very practice the Legislature intended to eliminate—detaining individuals on unaffordable bail prior to conviction merely because of their inability to buy their own liberty." (VP ¶ 33.)

Petitioner goes so far as to suggest—purportedly relying on Griffin v Illinois (351 US 12 [1956]); Bearden v Georgia (461 US 660 [1983]); Tate v Short (401 US 395 [1971]); and Williams v Illinois (399 US 235 [1970])—that the Constitution requires a court to set bail in an amount that a defendant can afford. (VP ¶¶ 39-43.)

These cases, of course, hold no such thing. That is why, in all the years since those venerable Supreme Court cases were decided, courts all over the country have in millions of appropriate cases continued to set bail in amounts greater than defendants can afford.

Both the Constitution and New York's bail statute do require a court to consider a defendant's finances when setting bail. But they do not, of course, require that bail be set in an amount that a defendant can afford, no matter how serious the case and how great the risk of flight.

Here, petitioner has very limited ability to post bail. All his mother can muster is $3,500 in cash. Admittedly, that factor in isolation might point towards setting minimal bail.

Our bail statute, however, also requires the court to consider all of the many other factors enumerated in CPL 510.30 (1) (a) through (h) before deciding the issue of bail. And in this case those other factors lead to the conclusion that much higher bail is necessary to assure petitioner's return to court.

More specifically, in these cases, Bronx County grand juries have found probable cause to believe that petitioner possessed loaded guns in public on two separate occasions. If convicted, petitioner faces between 7 and 30 years in prison. That is a fairly desperate circumstance. As a result, it stands to reason that petitioner Cespedes would be perfectly willing to let his long-suffering mother lose $3,500 in bail money, if her losing that relatively modest sum means that he can flee the state and avoid that heavy prison sentence.{**72 Misc 3d at 255}

Accordingly, it was proper and lawful for Justice Yearwood (and Judge Gray before that) to set the more substantial monetary bail that they did, having fully taken into account petitioner's limited financial resources. Clearly, there were and are reasons sufficient in law (cf. People ex rel. Watters) to support that bail decision, and this court should therefore not disturb that decision on habeas review.

More generally, petitioner is simply wrong to assert or suggest that bail must be set in an amount that a defendant can afford. "[B]ail is excessive under the [E]ighth [A]mendment when set in an amount greater than that required for reasonable assurance of the presence of the defendant. . . . [*11]But a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement." (United States v McConnell, 842 F2d 105, 107 [5th Cir 1988] [emphasis added and citations omitted]; Walker v City of Calhoun, GA, 901 F3d 1245, 1258 [11th Cir 2018] ["(B)ail is not excessive under the Eighth Amendment merely because it is unaffordable. . . . (A)s long as the primary reason in setting bond is to produce the defendant's presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority" (emphasis added and internal quotation marks omitted)]; see also White v United States, 330 F2d 811, 814 [8th Cir 1964] ["The purpose for bail cannot in all instances be served by only accommodating the defendant's pocketbook and his desire to be free pending possible conviction"].)

No New York or federal court has ever held that bail must be set in an amount that defendant can afford; there is no authority for that remarkable proposition.

It is true that CPL 510.30 (1) (f) requires the bail-setting court to consider a defendant's finances and ability to post bail without undue hardship. Nevertheless, there still are, and always will be, cases where bail should properly be set, based on all of the circumstances presented, at a level that will be more than a particular defendant can afford to pay. (See Brangan v Commonwealth, 477 Mass 691, 80 NE3d 949 [2017] [A judge setting bail must consider a defendant's financial resources, but is not required to set bail that the defendant can afford]; see also ODonnell v Harris County, 892 F3d 147, 158 [5th Cir 2018] ["(A)bility to make bail is a factor to be considered, but ability alone, even indigency, does not control the amount of the bail" (citation and brackets omitted)]; accord {**72 Misc 3d at 256}Valdez-Jimenez v Eighth Jud. Dist. Ct. in & for County of Clark, 136 Nev 155, 165, 460 P3d 976, 986 [2020] [A court must consider defendant's financial resources, among other factors, when setting bail, but there is "no constitutional requirement that bail be in an amount that defendant can afford to pay"]; State v Pratt, 204 Vt 282, 291, 166 A3d 600, 606 [2017] ["Although in many cases the amount of bail required to assure a defendant's appearance will not be prohibitive for the defendant, the Constitution does not require that a defendant have the ability to pay the required bail if it is otherwise reasonable"].)

Properly understood and employed, pretrial monetary bail is not, of course, an unconstitutional scheme to require criminal defendants to "buy their liberty" or to imprison the indigent. Bail is instead a traditional and constitutional practice that promotes liberty for the accused. Bail allows the courts to responsibly free a large class of defendants—namely, those who, in the absence of bail, appear likely to take flight rather than to honor their purely legal obligations to appear for trial. Bail does so by creating an additional and powerful financial incentive for such defendants to return to court when required.

Bail must therefore be set high enough so that the potential pain of losing the bail money will effectively discourage the defendant from failing to return for trial. Unfortunately, sometimes—as in this case—that means that bail must be set in an amount that turns out to be beyond the defendant's financial resources.

Bail is intended to assure a defendant's return to court. But bail is not an absolute guarantee of freedom to every criminal defendant, no matter how serious the crime or how great the risk of flight presented.

For all of the foregoing reasons, the petitioner's writ is dismissed.

Petitioner, however, insisted that he had never touched the gun. Accordingly, in November of 2018 (at petitioner's mother's urging), petitioner initially consented to the prosecution's motion to compel a DNA sample. This sample was never taken, however, and the defense now opposes providing a DNA sample, arguing that the time to do so has lapsed. A motion to reargue the DNA issue is pending. (See tr Sept. 24, 2020 at 8-17.)