Supreme Court, Kings County, February 7, 2020

Eric Gonzalez, District Attorney (Matthew Midey of counsel), for plaintiff.

Legal Aid Society (Vivian Intermont of counsel) for defendant.

On February 6, 2020, the People applied to modify the securing order in this case pursuant to CPL 530.60 based on the fact that the defendant, charged with three counts of residential burglaries in violation of Penal Law § 140.25 (2), had, since his release on recognizance in December 2019, been rearrested for allegedly burglarizing three additional residences in January 2020. The court held a hearing and remanded the defendant for 90 days. This decision explains why.

The defendant is an individual who benefitted from the newly enacted bail laws, which required his release as of January 1, 2020, inasmuch as the charge on which he had been held, burglary in the second degree, although denominated a violent felony offense (see Penal Law § 70.02), is not a bail- or remand-{**67 Misc 3d at 249}"qualifying" offense under the new bail statute (see CPL 510.10 [4] [a]).

Courts have long had the power to reconsider their bail determinations. "Changes in relevant facts, of course, may require reconsideration of a bail determination." (People ex rel. Rosenthal v Wolfson, 48 NY2d 230, 233 [1979].)

[1] One circumstance that may lead a court to reconsider its bail determination is the rearrest of a defendant on a new charge while at liberty. Since 1981, CPL 530.60 (2) (a) has given courts the power to remand a defendant at liberty on a felony if the court "finds reasonable cause to believe" that the defendant, among other things, committed a violent felony offense while at liberty (William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPL 530.60). The statute, pertinently, allows for a temporary remand for the shorter of up to 90 days or until reduction or dismissal of the new charge so that no violent felony remains from the new arrest, at which time the court must reconsider the securing order. In other words, the statute allows a court to remand a defendant while a new charge is preliminarily being addressed and then to reconsider its effect on defendant's bail status on the earlier case.

CPL 530.60 remains largely intact, although the new bail law "provide[s] for a broader [*2]basis for revocation of a securing order" in cases of rearrest while at liberty (William C. Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPL 530.60). The section has also been retitled to read, "Certain modifications of a securing order."

This case raises two issues under the amended section 530.60. First, may a court remand a defendant who is at liberty on a pending felony indictment if the defendant is indicted for a violent felony offense allegedly committed while he was at liberty on the earlier case, even though neither contains a qualifying offense? Second, if a court may, what evidence is sufficient to satisfy CPL 530.60 (2) (a), which requires "reasonable cause to believe the defendant committed" a violent felony offense?

Under the new bail statute, unlike its predecessor, defendants charged with a felony may not initially be remanded pending trial unless they are accused of a "qualifying offense." As relevant here, a qualifying offense is a violent felony offense other than burglary in the second degree (see CPL 510.10 [4] [a]). In other words, although violent felony offenses normally qualify for remand, charges of residential burglaries do not.{**67 Misc 3d at 250}

Thus, under the new bail law, as pertinent to this case, the legislature has limited the court's power initially to issue a securing order of remand because the defendant, although charged with a violent felony offense, is charged with burglary in the second degree. (Parenthetically, an attempted burglary in the second degree is a qualifying offense for which bail or remand may be ordered.) (See People ex rel. Castano v Fludd, 179 AD3d 1087 [2d Dept 2020] [denying excessive bail writ where $2 million bail bond was set on an attempted burglary in the second degree].)

The defendant in this case benefitted from the change in the law because he had been held on bail on what was soon to be classified as a non-qualifying offense. As a result, in December 2019, in anticipation of the provisions of CPL 510.10 that would take effect on January 1, 2020, he was released on recognizance. The question here is whether the same "qualifying offense" limitation that applies when a securing order is first issued also applies when a court makes a "modification" to that securing order pursuant to CPL 530.60.

The plain language of CPL 530.60 answers that question rather straightforwardly. Nowhere in section 530.60 does the legislature use the language "qualifying offense." In fact, much of the amended statute is a wholesale incorporation of its predecessor—when courts had the power to remand a defendant at liberty newly charged with a violent felony offense. Indeed, both the language and structure of section 530.60 demonstrate that a court entertaining an application to "modify" a securing order has more power than a court that initially issued the securing order.

As noted, under CPL 530.60 (2) (a), a court may revoke the prior securing order if it finds reasonable cause to believe that the defendant has committed a violent felony offense while at liberty on a felony—without any limitation that either offense be "qualifying." The exclusion of burglary in the second degree simply isn't there, as it is in CPL 510.10 (4) (a), the initial bail-setting statute.

Under a newly added paragraph, CPL 530.60 (2) (b), a court has additional powers with regard to securing orders when an at-liberty defendant is believed to have, among other things, committed a "felony"—in other words, any felony, not simply a violent felony, as in paragraph (a).

From this language and structure, one may infer that the legislature intended to balance, on the one hand, its limiting a{**67 Misc 3d at 251} court's initial power to set bail or to remand in cases charging non-qualifying offenses with, on the other hand, its retaining and expanding a court's power to modify [*3]certain securing orders that prove ineffective in those cases.

Having concluded that a court presiding over a case charging a non-qualifying offense may both revoke a securing order that released a defendant and consider remand based on a rearrest for a violent felony offense, even though remand was not initially permitted, the court then asks what evidence is sufficient to meet the "reasonable cause" standard that applies to this decision to revoke liberty?

[2] Section 530.60 (2) (c) requires the court to hold a "hearing" at which the defendant "may cross-examine witnesses and may present relevant, admissible evidence." Further, the "district attorney may move to introduce grand jury testimony of a witness in lieu of that witness' appearance at the hearing."

This court held a hearing, at which the District Attorney represented that the defendant had been indicted for three residential burglaries that had occurred in January 2020, after his release on the present case, and introduced a notice of voted indictment that had been filed with the lower criminal court that same day. The defense presented no evidence.

Although the defense argued that this "hearing" was insufficient without witnesses or transcripts, this court ruled that it was sufficient. Section 530.60 (2) (c) does not specify what type of hearing is required. The statute does not require the calling of witnesses. By allowing the People to offer transcripts of grand jury testimony in lieu of a witness' appearance, the statute necessarily implies that the right of cross-examination is limited to witnesses who are called at the hearing; it does not create a requirement of live testimony.

This type of hearing is not unusual. In the sentencing context, courts typically hold so-called Outley hearings when a defendant is alleged to have been rearrested while awaiting sentence. That analogous situation results in a hearing that may consist only of the District Attorney's announcing that the defendant has been indicted on the new arrest. (See People v Outley, 80 NY2d 702, 713-714 [1993] [fact that a grand jury returned an indictment sufficient to show legitimate basis for defendant's arrest]; People v Guillen, 37 AD3d 493, 493-494 [2d Dept 2007] [proper to enhance sentence as a result of the defendant's undisputed rearrest after his plea].) This court notes that as a result of an Outley hearing a defendant may be given{**67 Misc 3d at 252} an enhanced prison sentence—which is a far greater consequence than the most significant consequence that may occur here, which is revocation of a securing order and remand for up to 90 days pending trial.

Further, in order for a grand jury to return an indictment, pursuant to CPL 190.65 (1) (b) it must find "reasonable cause to believe that such person committed such offense"—exactly the same standard set forth in CPL 530.60 (2) (a).

For this reason, the People's introduction of a notice that an indictment for burglary in the second degree, a violent felony offense, had been voted gave this court reasonable cause to believe that the defendant committed a violent felony offense while at liberty on the present case. Minutes of the actual grand jury proceeding were unnecessary inasmuch as the notice itself was evidence that a grand jury had found "reasonable cause to believe" that defendant committed a violent felony offense. Defense did not contest that the defendant had been so indicted.

The defense contended that the court deferred to the grand jury rather than made its own finding of "reasonable cause." Yet Outley, as noted, permits a court to find, based on an indictment alone, that there is a legitimate basis for a defendant's arrest, i.e., probable cause to believe that the defendant committed the new offense (see CPL 140.10 [1]). Here, too, by filing a notice of [*4]voted indictment, the People have demonstrated to the court's satisfaction reasonable cause to believe that defendant committed a new violent felony offense. Review of the grand jury minutes is unnecessary to come to this conclusion. The fact of the indictment is enough. CPL 530.60 (2) (d) (i) (B) and (C) anticipate that if, upon reviewing the grand jury minutes, a court reduces or dismisses the new charges, the defendant will be entitled to have his securing order reconsidered.{**67 Misc 3d at 253}^[FN*]

Having concluded that the People established the right to have a court revoke defendant's securing order and consider remand, the court then made an individualized determination as to whether that was appropriate. In contrast to the District Attorney's requested remand, the defense argued that supervised release was the least restrictive means to assure the defendant's return to court. This court disagreed.

In this case defendant is facing three separate charges of burglary in the second degree, each a violent felony offense. His record of conviction includes seven prior felony convictions, including two prior violent felony convictions. As a result of this history, he is considered a persistent violent felony offender, which means that if he is convicted of any of the three second-degree burglaries charged here, he is facing mandatory imprisonment with a term that includes a maximum of life imprisonment. (See Penal Law § 70.08.) Further, at the time of the offenses charged here, defendant was already under a form of supervision: parole supervision from a prior burglary conviction. A parole violation can of course result in a defendant being returned to prison, which is greater incentive to return to court than mere pretrial supervision.

Accordingly, based on all these factors, the court concluded that the least restrictive condition to reasonably assure his return was remand for a period of 90 days.

As the court instructed the parties, this 90-day limitation is intended to assure that this case, which is already over one year old, be tried expeditiously and within the 90-day period of defendant's pretrial detention.