County Court, Ulster County, December 21, 2021

O'Connor & Partners, PLLC (Joseph E. O'Connor of counsel) for defendant.

David J. Clegg, District Attorney (Emmanuel C. Nneji of counsel), for plaintiff.

The defendant has asked the court to reconsider its two previous decisions concluding that the defendant must be committed to the custody of the sheriff without bail pending trial in light of a decision of the Albany County Supreme Court. The People oppose the application.

On July 21, 2021, a grand jury of Ulster County handed up a six-count indictment charging the defendant with attempted murder in the first degree (Penal Law §§ 125.27 [1] [a] [i]; [b]; 110.00), a class A-I felony; attempted murder in the second degree (Penal Law §§ 125.25 [1]; 110.00), a class B violent felony; attempted aggravated assault upon a police officer or peace officer ([*2]Penal Law §§ 120.11, 110.00), a class C violent felony; attempted assault in the first degree (Penal Law §§ 120.10 [1]; 110.00), a class C violent felony; menacing a police officer or peace officer (Penal Law § 120.18), a class D violent felony; and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), a class A misdemeanor. All of the offenses are based on the allegation that the defendant attempted to fire a rifle at an Ulster County deputy sheriff on February 9, 2021.

On July 30, 2021, the defendant was arraigned on the indictment by this court, pleaded not guilty, and asked that he be released on bail, whereupon the court conducted a hearing during which it heard arguments by both sides addressed specifically to the factors and criteria set forth in the controlling statute, CPL 510.30 (1) (a) through (g), part of the bail reform of 2019 (L 2019, ch 59, § 1, part JJJ) which went into effect on January 1, 2020, and to the evidence in this case. In arguably pertinent part, the defendant asserted that he has never been convicted of a crime but was adjudicated a youthful offender{**74 Misc 3d at 407} more than 30 years ago; that he has lived in and operated a business in Ulster County for many years and owns real property here; that he has no record of fleeing the jurisdiction to avoid criminal prosecution; that he has the wherewithal to post bail in a substantial amount without suffering undue hardship; and that he was released on his own recognizance by the Town of Esopus Justice Court when previously arraigned there on the charge of menacing a police officer or peace officer. The People, after arguing that the defendant is facing a long prison sentence if convicted of the more serious charges in the indictment and thus poses a risk of flight to avoid prosecution, recommended that the court set bail in the sum of $200,000 cash or $350,000 and $500,000 in bonds authorized under CPL 520.10 (1). Both parties also debated the merits of the case, the defendant contending that the evidence will show that he did not attempt to shoot the sheriff's deputy and the People contending that it will.

After carefully considering and weighing all of such factors and criteria applicable to this case and this defendant, and considering the kind and degree of control or restriction necessary to secure the defendant's court attendance when required, the court determined that the defendant poses a significant risk of flight to avoid prosecution in view of the fact that he is facing a potential maximum sentence of 25 years to life in prison and a potential minimum sentence of 15 years to life in prison if convicted of attempted murder in the first degree. Accordingly, and finding it to be the least restrictive alternative and condition that would reasonably assure the defendant's return to court, the court committed the defendant to the custody of the sheriff without bail pending trial.

On September 24, 2021, the defendant having applied to this court in writing for reconsideration of the court's decision on July 30, 2021, which the People opposed, the court again conducted a hearing during which it heard essentially the same arguments made by both sides at the previous hearing, the only difference being that the defendant in the interim had reviewed a video recording of the incident turned over to him by the People and contended that it supported his position that the evidence will show that he did not attempt to shoot the sheriff's deputy, which the People not surprisingly disputed. The court has since also viewed the video recording.

After again carefully considering and weighing all of the factors and criteria set forth in CPL 510.30 (1) applicable to this{**74 Misc 3d at 408} case and this defendant, and again considering the kind and degree of control or restriction necessary to secure the defendant's court attendance when required, the court again determined that the defendant poses a significant risk of flight to avoid prosecution in view of the fact that the defendant is facing a potential maximum sentence of 25 [*3]years to life in prison and a potential minimum sentence of 15 years to life if convicted of attempted murder in the first degree. Accordingly, and again finding it to be the least restrictive alternative and condition that would reasonably assure the defendant's return to court, the court again committed the defendant to the custody of the sheriff without bail pending trial.

On October 26, 2021, a grand jury of Ulster County handed up an eight-count, sealed indictment charging Christopher Baldner with murder in the second degree (Penal Law § 125.25 [2]), a class A-I felony; manslaughter in the second degree (Penal Law § 125.15 [1]), a class C felony; and reckless endangerment in the first degree (Penal Law § 120.25), a class D felony (six counts). The first five counts are based on the allegation that the defendant, a New York State Trooper, on December 22, 2020, engaged in a high-speed chase of a vehicle occupied by multiple people on the New York State Thruway and struck the vehicle twice, causing it to overturn and kill one of its occupants. The last three counts are based on the allegation that the defendant, on September 6, 2019, engaged in a high-speed chase of a vehicle occupied by multiple people on the New York State Thruway and struck the vehicle, causing it to crash into a guardrail and creating a grave risk of death to its occupants.

On October 27, 2021, the indictment was unsealed and the defendant was arraigned on it by this court, whereupon he pleaded not guilty and was committed to the custody of the sheriff without bail pending a written application for his release on bail to be made by the defendant.

On November 1, 2021, the defendant applied in writing to this court (under seal) for an order "fixing reasonable bail," which application was opposed by the People in writing. On November 4, 2021, the court conducted a hearing during which it heard arguments by both sides addressed specifically to the factors and criteria set forth in the controlling statute, CPL 510.30 (1) (a) through (g), part of the bail reform of 2019, and to the evidence in this case. In arguably pertinent part, the defendant asserted that his conduct was justified under the circumstances{**74 Misc 3d at 409} and not criminal; that he is 43 years of age and has been employed by the New York State Police since September 9, 2002; that he graduated from college in 2001 with a bachelor's degree in criminal justice; that he has been married for 15 years to a woman who has been employed as a school guidance counselor for about 19 years and that they have two children, one 13 years of age and the other eight years of age; that he and his wife purchased a home in Catskill, New York, where they lived for about 15 years, and that they now live with their children in a home they purchased in Cornwallville, New York, in July 2020; that the conduct the defendant is alleged to have engaged in was "of a reckless accidental nature," not intentional; that he has never been convicted of a crime or adjudicated a juvenile delinquent; that he is not a flight risk because, though he "was aware of an ongoing criminal investigation by the New York Attorney General's Office into the December 2020 incident," he has not taken any steps "to avoid apprehension or prosecution," and he retained an attorney more than eight months before his indictment and has remained in "continual contact with [his attorney] regarding the status of this case"; that he promptly and voluntarily surrendered himself to the authorities upon learning of his indictment; and that he has the wherewithal to post bail in a substantial amount without suffering undue hardship and proposes that his release be subject to multiple additional conditions designed to assure his return to court when required.

The People countered that, contrary to the defendant's characterization of his conduct on December 22, 2020, as "of a reckless accidental nature," the evidence will show that he "intentionally and willfully rammed his police vehicle into the vehicle he was pursuing"; that he was traveling at a speed of 130 mph and the vehicle he struck was [*4]traveling at a speed of 110 mph when he struck it twice from behind; that his conduct on September 6, 2019, was likewise intentional; that the defendant should not be given credit for voluntarily surrendering himself upon learning of his indictment because he did not then know what the charges would be, the indictment having been sealed until his arraignment; and that, in accordance with the decision in People v Portoreal (66 Misc 3d 497 [Sup Ct, Bronx County, Dec. 9, 2019]), this court can consider

"the strength of the evidence against the defendant and the potential sentence [25 years to life in prison{**74 Misc 3d at 410} on the first count of the indictment and an additional 2 1/3 to 7 years in prison on the sixth, seventh, or eighth counts of the indictment] that could be imposed [as] important factors in evaluating the defendant's risk of flight," though those factors are not expressly set forth in CPL 510.30 (1).

After carefully considering and weighing all of the factors and criteria set forth in CPL 510.30 (1) applicable to this case and this defendant, and considering the kind and degree of control or restriction necessary to secure the defendant's court attendance when required, the court determined that the defendant poses a significant risk of flight to avoid prosecution in view of the fact that he is facing up to 27 1/3 years to life in prison. Accordingly, and finding it to be the least restrictive alternative and condition that would reasonably assure the defendant's return to court, the court committed the defendant to the custody of the sheriff without bail pending trial.

On November 16, 2021, in the Supreme Court of Albany County, the defendant filed a petition for a writ of habeas corpus against the Ulster County Sheriff, verified by Stephen R. Coffey, Esq., that same date, seeking a judgment "fixing reasonable bail." Attached to the petition as exhibits were this court's commitment order dated November 4, 2021; this court's order to show cause dated November 1, 2021; the affirmation of John Ingrassia, Esq., in support thereof dated November 1, 2021, with exhibits; the affirmation in opposition thereto of Paul A. Clyne, Esq., dated November 3, 2021; and the stenographic minutes of this court's bail hearing conducted on November 4, 2021. An affirmation in opposition thereto of Paul A. Clyne, Esq., dated November 18, 2021, was then filed in that court.

For many years prior to 2019, when a defendant was arraigned in a New York court on a criminal charge, the provisions of CPL former 510.30 (2) governed the determination whether to release him on his own recognizance, fix bail in some amount, or commit him to the custody of the sheriff pending trial. In those cases in which the determination was a matter of discretion, the statute provided:

"(a) With respect to any [defendant], the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance{**74 Misc 3d at 411} when required. In determining that matter, the court must, on the basis of available information, consider and take into account:

"(i) The [defendant's] character, reputation, habits and mental condition;

"(ii) His employment and financial resources; and

"(iii) His family ties and the length of his residence if any in the community; and

"(iv) His criminal record if any; and

"(v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and

"(vi) His previous record if any in responding to court appearances when required or with [*5]respect to flight to avoid criminal prosecution; and

"(vii) Where the [defendant] is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:

"(A) any violation by the [defendant] of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and

"(B) the [defendant's] history of use or possession of a firearm; and

"(viii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and

"(ix) If he is a defendant, the sentence which may be or has been imposed upon conviction." (CPL former 510.30 [2].)

But in 2019, the New York State Legislature passed and the Governor signed into law the bail reform of 2019 (L 2019, ch 59, § 1, part JJJ), which went into effect on January 1, 2020. (It has since been amended in ways not pertinent to this decision.) Subdivision (2) of CPL 510.30 was renumbered subdivision (1) and now reads as follows:{**74 Misc 3d at 412}

"With respect to any [defendant], the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the [defendant's] return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the [defendant] that is relevant to the [defendant's] return to court, including:

"(a) The [defendant's] activities and history;

"(b) If the principal is a defendant, the charges facing the [defendant];

"(c) The [defendant's] criminal conviction record if any;

"(d) The [defendant's] record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any;

"(e) The [defendant's] previous record with respect to flight to avoid criminal prosecution;

"(f) If monetary bail is authorized, according to the restrictions set forth in this title, the [defendant's] individual financial circumstances, and, in cases where bail is authorized, the [defendant's] ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;

"(g) Where the [defendant] is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:

"(i) any violation by the [defendant] of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and

"(ii) the [defendant's] history of use or possession of a firearm; and

"(h) If the principal is a defendant, in the case of an{**74 Misc 3d at 413} application for a securing order pending appeal, the merit or lack of merit of the appeal." (CPL 510.30 [1] [emphasis supplied].)

Although it should have been apparent to all legislators at the time that the new bail law would have a significant impact on how a court is to decide whether to release a defendant on his own recognizance, fix bail in some amount, or remand him to the custody of the sheriff pending trial, the legislature did not hold public hearings on the matter and passed the new law as part of a wide-ranging budget bill rather than as a standalone bill. (One senator complained that they were given the text of the bill only two hours before voting on it.) Consequently, it bears the earmarks of hasty and ill-considered drafting, and because the legislative history of its passage is meager, it is difficult, and at times impossible, for courts to discern the intent of its drafters and to interpret its language—a fact often lamented by many judges, prosecutors, defense attorneys, and legal commentators who have attempted to do just that. Compounding this problem is the absence, as of this writing, of any decision of an appellate-level court interpreting the new CPL 510.30 (1) that would provide some guidance to the trial courts in that task.

The first problem encountered by any judge in interpreting the new law is the use of the word "including" in CPL 510.30 (1), referring to the factors and criteria which follow it. The word "including," both in common English and legal usage, is most often defined as indicating an incomplete, not an exhaustive, list of items. (See The American Heritage Dictionary of the English Language [5th ed]; Merriam-Webster's Collegiate Dictionary [11th ed]; Oxford Dictionary of English [3d ed]; Black's Law Dictionary [10th ed 2014].) Well-established canons of statutory construction have also adhered to this understanding of the word "including." (See Federal Land Bank of St. Paul v Bismarck Lumber Co., 314 US 95, 100 [1941]; United States v Philip Morris USA Inc., 566 F3d 1095, 1115 [DC Cir 2009]; Richardson v National City Bank of Evansville, 141 F3d 1228, 1232 [7th Cir 1998].)

What is the court to make, then, of the term "including" in the new law? Is the list of factors and criteria which follows it merely illustrative, such that the court can consider other factors and criteria, and in particular those that were listed in the law before it was amended in 2019? Or is the court limited to considering only the ones set forth in the new law? Were the{**74 Misc 3d at 414} drafters of the new law even aware of the commonly understood meaning of the word "including" when they employed it in the statute? We just don't know. They could have clarified their intent by simply using the phrases "including but not limited to" or "including only." Notably, in an earlier draft of the new law, both in the Assembly and in the Senate versions, they used the term "including, but not limited to" (2019 NY Assembly Bill A02726, § 6; 2019 NY Senate Bill S02101A, § 6). As the "but not limited to" part did not find its way into the final version of the legislation, are we to conclude that its drafters intended that the court be limited to considering only the eight factors and criteria set forth therein? After all, an equally well-established canon of statutory construction is based on the Latin maxim casus omissus pro omisso habendus est (a case omitted is to be held as intentionally omitted)—that if something is omitted from an enumeration of things in a statute, it must be assumed that its drafters omitted it intentionally—and on the Latin maxim expressio unius est exclusio alterius (the expression of one thing excludes others)—that the express mention of one or more things of a particular type necessarily implies an intention to exclude others of that type. (See Ebert v Poston, 266 US 548, 554 [1925]; People v Braunhut, 101 Misc 2d 684 [Crim Ct, Queens County 1979]; McKinney's Cons Laws of NY, Book 1, Statutes § 74.) In any event, until an appellate court rules otherwise, this court's position is that the legislature intended the term "including" in the statute to be exhaustive—that is, the courts must consider only those factors and criteria which follow it.

Two of the factors listed in the new law are the defendant's "activities and history," but what the drafters meant by these terms is not clear. Before it was so amended, the statute [*7]included as factors the defendant's "character, reputation, habit and mental condition" and "his family ties and the length of his residence if any in the community." Did the drafters of the new law intend to exclude such factors from consideration or to subsume them under "activities and history"? We just don't know.

One of the factors listed in the new law is "the charges facing the [defendant]," but what the drafters meant by this language is not clear. This language was not present in the previous version of CPL 510.30. Before it was amended, the statute included as factors "the weight of the evidence against him in the pending criminal action and any other factor indicating{**74 Misc 3d at 415} probability or improbability of conviction" and "the sentence which may be or has been imposed upon conviction." Did the drafters of the new law intend to exclude such factors from consideration or to subsume them under "the charges facing the [defendant]"? We just don't know. In any event, until an appellate court rules otherwise, this court's position is that the legislature intended "the charges facing the defendant" to mean the sentence faced by him upon conviction, for any other interpretation would be senseless. After all, how would the charge itself be relevant to an assessment of a defendant's flight risk? What difference in that regard would it make to a defendant that he is charged with petit larceny as opposed to murder in the second degree? The answer is obvious—the difference is the sentence he would face upon conviction, up to one year in jail for the petit larceny but 25 years to life in prison for the murder. As more fully explained below, it is apodictic that he is much more likely to abscond when facing 25 years to life in prison than up to one year in jail.

What can be gleaned from the legislative history of the new law, scant though it may be, is that the impetus for it was the realization that so many defendants, though presumed innocent, languish in jail for long periods of time awaiting trial, sometimes for longer than the maximum sentence they are facing if ultimately convicted, simply because they cannot afford to post bail in any amount or in the amount required by the court, thus discriminating in favor of those who have the financial resources to post such bail and therefore having a disproportionately adverse impact upon people of color. (One member of the Assembly described it as "the criminalization of poverty.") (NY Assembly Debate on Assembly Bill A02009C, § 1, part JJJ, Mar. 31, 2019 [Assembly tr] at 404.) In short, they were impelled by the laudable objective, shared by this court, of insuring equal justice for all regardless of their financial circumstances. Before it was so amended, the statute included as factors "his employment and financial resources." That language was excluded from the new statute but nevertheless replaced with "[i]f monetary bail is authorized . . . the [defendant's] individual financial circumstances, and . . . the [defendant's] ability to post bail without undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond." If the legislature, understandably, was determined to rectify the inequity of some defendants getting out of jail because they can afford to post the required amount{**74 Misc 3d at 416} of bail while others cannot, their again allowing a defendant's wealth and financial resources to be considered by the court is baffling. Surely, at the very least, they wanted it to be given much less weight than the other factors the court is permitted to consider, and much less weight than it has been given by courts over the years. And until an appellate court rules otherwise, that is the position of this court.

But another well-established canon of statutory construction is that a court's interpretation of the text of a statute that furthers rather than obstructs its purpose should be favored—the presumption against ineffectiveness. (See The Emily, 22 US 381 [1824]; Matter of Rathscheck, 275 App Div 363 [1st Dept 1949]; McKinney's Cons Laws of NY, Book 1, Statutes § 144.) Throughout the history of laws governing whether a defendant should be [*8]released on his own recognizance, required to post bail, or committed to the custody of the sheriff without bail pending trial—in New York's criminal justice system, in every other state, in the federal system, and in England—the overriding objective has been to assure the defendant's appearance in court when required during the pendency of the criminal action so that justice can ultimately be done. This is in recognition of the indisputable fact that some defendants will abscond if given the opportunity, and thus that measures must be put in place by a court to dissuade such defendants from doing so. This overriding objective and this recognition were carried over, both implicitly and explicitly, in the new bail law and its legislative history. The new bail law, like all of its predecessors, logically presumes that when arraigning a defendant in a criminal action, the court must assess the risk of the defendant's not returning to court when required and thereby eluding justice, and then determine what measures are necessary to eliminate or at least reduce that risk.

Likewise, throughout the history of such laws, certain factors and criteria have been accepted by legislators and judges as relevant on the issue of the flight risk posed by a particular defendant. Among them, with few exceptions, have been the very factors and criteria found in the previous version of the new bail law. Although reasonable people can and have questioned the relevance of one or more of them on the issue of flight risk, most courts and legal scholars have agreed that the following are indeed relevant to some extent: the defendant's ties to the community; his criminal history; whether he has ever failed to appear in court before when required to or fled or{**74 Misc 3d at 417} attempted to flee a court's jurisdiction; his character and reputation; his mental health; the weight of the evidence against him and therefore the probability of him being ultimately convicted; and the sentence he is facing if convicted. In this regard, it is important to keep in mind that such laws have never required the court, in assessing a defendant's flight risk, to assign a particular weight to any of the factors and criteria to be considered, or to specify that any one factor or criterion carries more weight than another in making this assessment. Neither does the new bail law. This decision has always been, and continues to be, left to the sound discretion of the arraigning court.

The reason the "weight of the evidence against" the defendant has long been deemed a factor relevant to the assessment of his flight risk is the recognition that he is less likely to abscond and elude justice if such evidence is weak and more likely to do so if such evidence is strong. Moreover, if the evidence against the defendant is weak, making it less likely that he will ultimately be convicted, keeping him locked up in the interim may prove to be especially unjust if he is later found not guilty. The question then arises: Why would the legislature, dismayed as it was by the large numbers of defendants incarcerated as they await trials that can take many months, and sometimes years, before they actually begin, remove this factor from CPL 510.30 (1)? It seems counterintuitive. In any event, until an appellate court rules otherwise, because the legislature did not expressly list it among such factors, this court's position is that the "weight of the evidence against" the defendant is not a factor to be considered.

Similarly, the reason the "sentence which may be imposed upon conviction" has long been deemed a factor relevant to the assessment of a defendant's flight risk is the recognition that he is less likely to abscond and elude justice if he is facing a fine and/or probation rather than incarceration and more likely to do so if he is facing incarceration. And it only stands to reason that a defendant's flight risk becomes greater as the potential length of his incarceration increases. A defendant facing a maximum of one year in jail upon being convicted of the misdemeanor of petit larceny is much less likely to abscond than one facing a maximum of 25 [*9]years to life in prison upon being convicted of the class A-I felony of murder in the second degree. Indeed, in this court's view, of all the factors and criteria to be considered, the "sentence which may be imposed {**74 Misc 3d at 418}upon conviction" is the most reliable indicator of a defendant's flight risk. The question then arises: Why would the New York State Legislature, presumably as determined as past lawmakers to see those who have committed crimes brought to justice, remove this factor from CPL 510.30 (1)? This too seems counterintuitive. But as noted earlier, this court's position is that this factor is what the legislature meant by the "charges against the defendant" in the new law, and thus must be considered by the court.

Addressing these same questions, the Criminal Justice Legislation Implementation Committee, set up by the New York State Unified Court System to provide guidance to judges on the criminal justice reform legislation passed by the New York State Legislature in 2019, had this to say about CPL 510.30 (1) on its SharePoint site on February 16, 2020:

"the statute also added a new 'catch all' provision: 'information about the [defendant] that is relevant to the [defendant's] return to court, including . . .' [a list of mandated considerations]. This catch-all provision clearly allows any consideration relevant to flight risk to be considered in setting securing orders. Thus, while the strength or weakness of the People's case and the possible sentence a defendant may receive upon conviction are no longer mandatory securing order considerations, they remain permissible considerations if the court finds they are relevant 'to the [defendant's] return to court.' " (2020 Crim Justice Legislation Frequently Asked Questions FAQ 7, Bail—Strength of Case [citation omitted].)

Indeed, during the Assembly's discussion of the proposed new bail law on March 31, 2019, the Honorable Latrice Walker, one of its supporters, stated:

"Well, in the case of the offenses that are still bail-eligible, we have not changed the New York State Court of Appeals decisions that have allowed for courts to be able to look at the nature of the offense and the severity of the sentence which may be imposed." (Assembly tr at 424 [emphasis supplied].)

The bottom line is this: no one knows for sure what the legislature intended by deleting and rewording some of the factors and criteria that were previously included in CPL 510.30.{**74 Misc 3d at 419}

In the papers submitted to Judge Hartman by defendant Christopher Baldner in support of his petition for a writ of habeas corpus, his attorney argues that this court, in deciding the type of securing order to issue, "overemphasized that Mr. Baldner faced a potential life sentence if he were to be convicted of murder in the second degree, and that was the basis for his remanding Mr. Baldner as no other factor considered established him as a flight risk." But this assertion is based on the faulty premise that one or more of the factors and criteria set forth in CPL 510.30 (1) is to be accorded either equal, lesser, or greater weight than others. As noted earlier, this has never been the law in this state and still isn't. He then states, "[t]hat approach, remanding a defendant on a murder charge, has been specifically rejected by appellate court's [sic] when reviewing the denial of bail pursuant to a Writ of Habeas Corpus application," citing People ex rel. Bryce v Infante (144 AD2d 898 [3d Dept 1988]) and People ex rel. Moquin v Infante (134 AD2d 764 [3d Dept 1987]).

However, neither of those case decisions declared anything of the kind. In Bryce, a case in which the defendant was accused of the depraved-mind murder of his two-month-old son, the Court overturned the lower court's denial of bail because it was based on the erroneous assumption that the defendant was a flight risk simply because he had exhibited suicidal tendencies before he was indicted. Notably, the Court went on to say, "the only factors which weigh against granting bail are the probability of conviction and the severity of the sentence, but, [*10]in the circumstances of this case, those two factors alone do not justify the denial of bail." (Bryce at 899 [emphasis supplied and citations omitted].) In Moquin, a case in which the defendant was likewise accused of murder among other offenses, the Court overturned the lower court's denial of bail because it was "for reasons of preventive detention," an illegal ground. (Moquin at 764.)

Elsewhere in Baldner's papers, in support of the same argument, his attorney cites People ex rel. Masselli v Levy (126 AD2d 501 [1st Dept 1987]). In that case, in which the defendant was accused of murder in the second degree, the Court overturned the lower court's denial of bail, not because it was based solely or largely on the charge of murder or the sentence he faced if convicted, but because "there was not a sufficient showing in the record" to support it, and specifically "there was {**74 Misc 3d at 420}no record of [the defendant's] failure to respond to court appearances," and "with respect to the homicide charges, [the defendant] had been implicated by the admitted murderer and it was questionable whether this individual would testify, and even if he did so, whether there was corroboration for his testimony." (Masselli at 503.)

In short, none of the aforementioned case decisions cited by Baldner held that the denial of bail by an arraigning court because the defendant is charged with murder is disallowed. In People ex rel. Parone v Phimister (29 NY2d 580 [1971]), the Court of Appeals, in a case in which the defendant was charged with conspiracy and criminal sale and possession of a dangerous drug and faced a maximum sentence of life imprisonment if convicted, held:

"There has been a sufficient showing by respondent to support the denial of bail. The nature of the offense, probability of conviction, and severity of the sentence which may be imposed, all increasing the risk of flight or unavailability for trial, are relevant criteria under decisional law and the new Criminal Procedure Law to take effect September 1, 1971. Consequently, the denial of bail, supported as it was by the record, was an exercise of discretion resting on a rational basis, and thus beyond correction in habeas corpus." (Id. at 581 [emphasis supplied and citations omitted]; see also People ex rel. Parker v Hasenauer, 62 NY2d 777 [1984]; People ex rel. Schreiber v Warden of Queens House of Detention for Men, 282 AD2d 555 [2d Dept 2001]; State of N.Y. ex rel. Rooney v Brann, 68 Misc 3d 679 [Sup Ct, Kings County 2020]; People ex rel. Griffin v Brann, 72 Misc 3d 237 [Sup Ct, Bronx County 2020].)

Baldner's attorney also contends in his papers that this court did not consider all of the factors and criteria set forth in CPL 510.30 (1) before deciding to commit the defendant to the custody of the sheriff without bail pending trial. But this is belied by a perusal of the stenographic minutes of the lengthy bail hearing held in this matter, from which it is abundantly clear that this court gave careful consideration not only to all of such factors and criteria, but even to some not expressly listed in the statute but nonetheless offered by the parties. Equally important to note is that this court, before conducting the bail hearing, had also read the papers submitted by both{**74 Misc 3d at 421} parties discussing the facts and law and presenting their legal arguments pertinent to such factors and criteria, which they then reiterated at length and in great detail during the hearing.

Baldner's attorney also asserts in his papers that this court failed to consider factor (f) under CPL 510.30 (1)—the defendant's individual financial circumstances and his ability to post bail without undue hardship, as well as his ability to obtain a secured, unsecured, or partially secured bond. In support of this, he relies exclusively on this court's statement near the end of the hearing that "(f) is applicable if the Court is to set monetary bail," from which he somehow extrapolates the conclusion that this court did not consider that factor at all. But this is [*11]a non sequitur. Indeed, when the defendant's attorney, during the hearing, set forth his proposal for the posting of bail in certain amounts, and specifically an insurance company bond in the sum of $200,000, this court corrected him, stating, "[i]n your papers you asked for $250,000." On the contrary, this court most certainly did consider the defendant's ability to post bail, but gave it much less weight than the other factors in light of the legislature's clear intent (noted earlier), with which this court wholeheartedly agrees, to rectify the inequity of some defendants getting out of jail because they can afford to post the required amount of bail while others cannot and are forced to languish in jail awaiting trial, though they are presumed to be innocent and may well be.

On November 19, 2021, the Honorable Denise A. Hartman, a Court of Claims Judge and an Acting Justice of the Supreme Court of Albany County, conducted a hearing on the defendant's petition for a writ of habeas corpus, during which the parties made the same arguments they made during this court's bail hearing. At one point during the hearing (hearing tr at 12), Judge Hartman, addressing the defendant's attorney, said, "[b]ut I do think you have already told me that you don't disagree with my statement that anyone, including your client, who is under these charges, presents some risk of flight," in response to which the attorney said, "[s]o does a person charged with robbery, so does a person charged with a burglary, so does a person charged with rape." In response to that, Judge Hartman said, "[a]rguably it increases with the severity of the crime and the potential consequence"—the very position held by this court.

{**74 Misc 3d at 422}At another point during the hearing (hearing tr at 30-31), addressing the factors and criteria set forth in CPL 510.30 (1), Judge Hartman said,

"[t]he criminal charges that the defendant faces is the second factor that I must consider. The criminal charges . . . defendant faces are dire. A second degree murder charge can carry with it a sentence of 25 years to life, and as Mr. Clyne [Assistant Attorney General] pointed out, there are other charges in the indictment which can result in consecutive sentencing. The defendant's maximum exposure is a state prison sentence of twenty-seven and a third years-to-life. As the County Court found, the charges defendant faces and potential consequences give rise to a flight risk."

Clearly, then, Judge Hartman agrees with this court's interpretation of the statute that "the charges facing" the defendant means "the sentence which may be imposed upon conviction."

Nevertheless, after stating (hearing tr at 29-30), "I am not able to say that the County Court's assessment that there is some risk of flight is so irrational as to be an abuse of discretion," Judge Hartman held that this court's decision to commit the defendant to the custody of the Ulster County Sheriff pending trial as the least restrictive alternative and condition that would reasonably assure his return to court "lacked rationality and constitutes an abuse of discretion." Accordingly, she released the defendant from the custody of the Ulster County Sheriff on the condition that he post cash bail in the sum of $100,000 or an insurance company bail bond in the sum of $300,000 or a partially secured bail bond in the sum of $450,000, and imposed other conditions upon his posting such bail.

But before reaching this conclusion, Judge Hartman admitted that she had already made her decision and reduced it to writing before she conducted the hearing, apparently based entirely on the papers submitted to her by the parties beforehand. In that regard, she said (hearing tr at 38),

"[f]or the record, I have drafted this Decision Order Judgment, Mr. Baldner, and all counsel, it contains many of the requirements that the defendant had proposed, because I was leaning this way before I heard oral argument and after oral argument, I—remained where I thought I might end up after all of that."

{**74 Misc 3d at 423}In any event, the Albany County Supreme Court is a court of coordinate, and not appellate, jurisdiction, and thus its decision is not binding on this court's past or future securing-order decisions in other cases.

In view of the foregoing, this court sees no reason why it should change its two previous securing orders with respect to Mr. Shafer. Accordingly, it is hereby ordered that the commitment of defendant Clayton Shafer to the custody of the sheriff without bail is to continue pending trial.