Criminal Court of the City of New York, Bronx County, March 3, 2020

Justine M. Luongo, The Legal Aid Society (Yasmin Davis, Nicolas Schumann-Ortega and Michelle McGrath of counsel), for defendant.

Darcel D. Clark, District Attorney (Rachael Baughman of counsel), for plaintiff.

The defendant in this case was charged with bail qualifying offenses and ultimately released under non-monetary conditions. He subsequently failed to appear for his supervised release interview, never appeared in court of his own volition, and was rearrested on two subsequent occasions and charged with new crimes. This decision addresses the following question: Under the recently enacted bail reform law, must the court hold a full evidentiary hearing, at which the defendant's willful and persistent absence from court and noncompliance with his conditions of release must be proved by clear and convincing evidence, before revoking the non-monetary conditions and setting bail? The answer is no.{**67 Misc 3d at 513}

On February 18, 2020, defendant Charlie Garcia appeared before the court with four pending dockets (2019BX023593, 2019BX025089, 2019BX028996, CR-003633-20BX). Docket 2019BX023593 (the first case) was a compliance matter. The defendant had entered a plea of guilty to menacing in the second degree (Penal Law § 120.14 [1]) in exchange for a promised sentence of a conditional discharge and two days in an anger management program. He was sentenced on August 31, 2019, and the case was adjourned to October 31, 2019, for compliance. He neither appeared on that date nor completed the anger management program, and a bench warrant was ordered.

In the instant case (2019BX025089, the second case), the defendant was arrested on September 18, 2019, and charged with, among other crimes, one count of forcible touching (Penal Law § 130.52 [1]) and one count of sexual abuse in the third degree (Penal Law § 130.55), both bail eligible offenses under the new statute. He was released on his own recognizance and the case was adjourned for conversion to October 17, 2019. When the defendant did not appear on that date, a warrant was issued.

The defendant was returned involuntarily on both warrants on November 2, 2019, when he was rearrested for possession of synthetic marijuana (commonly known as "K2") and charged in docket 2019BX028996 (the third case). He was released under supervision in all three cases, which were adjourned to December 18, 2019. The defendant did not appear for his supervised release intake interview on November 4, 2019, and did not appear in court on December 18, 2019, when bench warrants were issued in all three of the pending matters.

On February 17, 2020, the defendant was arrested on 35 counts of criminal tampering in the second degree (Penal Law § 145.15). The criminal court complaint alleged that at 35 different times and places, the defendant inserted objects into various subway vending machines, causing them to become inoperable. He was returned involuntarily on all of the outstanding warrants and arraigned before this court on February 18, 2020.

At the defendant's arraignment on the new charges, the People requested revocation of the defendant's release status and bail in the amount of $5,000 in the second case, which was the only case that charged qualifying offenses under the new bail statute. They argued that the defendant's rearrests, lack{**67 Misc 3d at 514} of compliance with the terms of his supervised release, and numerous failures to appear supported this change. The defendant opposed, arguing that an evidentiary hearing was required under CPL 530.60 (2) (b) and (c) before any modification of his release order. After hearing extensive argument, the court denied the defendant's request for an evidentiary hearing, holding that its power to set bail in qualifying offenses continued throughout the pendency of the case. The court further held that it could exercise that power without an evidentiary hearing so long as the factors outlined in CPL 510.30 were duly considered and good cause was shown to warrant revocation of the existing securing order pursuant to CPL 530.60 (1). The court set bail in the amount of $3,000 cash, $3,000 insurance company bond, $3,000 in credit card or $3,000 in partially secured bond (secured by 10%) as the least restrictive alternative to secure his return. The case was adjourned to February 26, 2020.

On February 26, 2020, defense counsel revisited the bail decision. She argued that a different statute—CPL 510.40 (3)—entitled the defendant to an evidentiary hearing at which the People would have to prove by clear and convincing evidence that the defendant had failed to comply with the conditions of his release in some important respect before the court could modify the securing order and set bail. The court again denied the defendant's request, finding that this section of the CPL governs the imposition of additional or changed non-monetary conditions and not the setting of bail, and maintained the same bail conditions.

This written decision further explains the court's bail orders issued orally on February 18 and 26, 2020.

1. Defendant's request for an evidentiary hearing pursuant to CPL 530.60 (2) (b) is denied.

New York's much discussed new bail statute was signed into law by Governor Cuomo on April 12, 2019 (L 2019, ch 59, § 1, part JJJ [eff Jan. 1, 2020]). It was aimed at drastically curtailing the use of cash bail by eliminating it for individuals charged with most misdemeanors and nonviolent felonies (non-qualifying offenses) (CPL 530.20 [1] [a]). By contrast, with respect to so-called "qualifying offenses," the legislature gave courts broad authority to determine the appropriate securing order including release on recognizance, release under non-{**67 Misc 3d at 515}monetary conditions, bail or, in the case of qualifying felonies, remand, provided that the court finds the defendant poses a "risk of flight" and selects "the least restrictive alternative" to ensure his return to court (CPL 510.10 [1]; 530.20 [1] [a]).

As part of this sweeping change, the legislature also amended section 530.60 of the CPL and changed the title from "Order of recognizance or bail; revocation thereof" to "Certain modifications of a securing order." The amended statute provides three different situations in which a court can modify a securing order, each with its own legal standard. The first is outlined in subdivision (1). This subdivision was carried over largely intact from the previous version except that an extra form of securing order—release under non-monetary conditions—and a requirement to wait for at least 48 hours before issuance of a bench warrant were added (see William C. Donnino, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, CPL 530.60). This subdivision provides that "the court, for good cause shown, may revoke the order of recognizance, release under non-monetary conditions, or bail" and then issue another securing order (CPL 530.60 [1] [emphasis added]).

The second situation for modifying a securing order is found in subdivision (2) (a). It provides that a securing order may be modified when "the court finds reasonable cause to believe the defendant committed one or more specified class A or violent felony offenses or intimidated a victim or witness" while at liberty from another pending felony (see id. § 530.60 [2] [a] [emphasis added]).

Subdivision (2) (b) outlines the third situation. It states, in relevant portions, "[e]xcept as provided in paragraph (a) of this subdivision or any other law," a court may revoke a securing order and fix bail in cases where the defendant is released on his or her own recognizance, released under non-monetary conditions, or bail, when the court has found by clear and convincing evidence that the defendant (i) "persistently" and "willfully" failed to appear for scheduled court appearances, (ii) violated an order of protection, (iii) intimidated a witness, or (iv) committed a felony while at liberty on another pending felony case (CPL 530.60 [2] [b] [i]-[iv]). The statute further provides that before revoking a securing order pursuant to this subdivision, "the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged" (CPL 530.60 [2] [c]). In such a hearing, "[t]he defendant may cross-examine witnesses and may present relevant, admissible evidence on his own behalf" (id.).

{**67 Misc 3d at 516}In this case, defense counsel argued that since the People were seeking bail based on the defendant's failures to appear, an evidentiary hearing must be held under CPL 530.60 (2) (b) (i) and (2) (c) at which the prosecutor must show by clear and convincing evidence that the defendant's absences were willful and persistent. The People claimed that no such hearing was necessary because the defendant was charged with qualifying offenses and the court could modify the securing order based on "good cause shown" (CPL 530.60 [1]).

When determining a question of statutory interpretation, the court's primary consideration "is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92). It is well-settled that "[t]he statutory text is the clearest indicator of legislative intent" and the court "should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; see also Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009] [starting point for discerning legislative intent is the statute's language itself]). Also, "[c]ourts must interpret new laws as part of a symmetrical and coherent regulatory scheme; if possible, both old and new parts must be fit into a harmonious whole, rendering them internally compatible" (People v Weston, 66 Misc 3d 785, 787 [Crim Ct, Bronx County 2020, Hartofilis, J.], citing Yatauro v Mangano, 17 NY3d 420 [2011]).

[1] The plain language of the statute supports the People's view that a full evidentiary hearing, at which an enhanced standard of proof would be imposed, was not required before setting bail in this case. Subsection (2) (b) states that "it shall be grounds for revoking such order and fixing bail" when one of the triggering events occurs (CPL 530.60 [2] [b]). This subdivision does not purport to be the exclusive grounds for revoking or modifying a securing order. It does not say that these triggering events are the only grounds for revoking securing orders and setting bail; it just says that such triggering events "shall be grounds" for such action. The language is permissive, not limiting. Indeed, as discussed above, not only does section 530.60 provide different methods for changing a securing order depending on factual circumstances, but subdivision (2) (b), upon which the defense relies, actually begins with the qualifier, "Except as provided in paragraph (a) of this subdivision or any other law" (see CPL 530.60 [2] [b]). Although the legislature could have expressly stated that the court's broad discretion to{**67 Misc 3d at 517} set bail on defendants accused of qualifying offenses is restricted by subdivision (2) (b), the statute does not say that. Instead, subdivision (1) provides a court with broad authority—which, of course, must be read in conjunction with the requirements of CPL 530.20—to revoke a securing order and set bail for good cause shown.

This clear reading of the statute also comports with the intent of the legislature and historical context. In 1981, the legislature added the previous version of CPL 530.60 (2), which allowed a court to revoke an order of recognizance or bail for a defendant who, while at liberty on a felony charge, committed a class A felony, a violent felony, or certain crimes of witness intimidation (see former CPL 530.60 [2] [a] [ineffective Dec. 31, 2019]). This change, which was somewhat controversial at the time, reflected a small move toward the use of bail as a preventative measure (People v Torres, 112 Misc 2d 145, 151 [Sup Ct, NY County 1981] [noting that the change was "motivated by the concept that potential harm to the community, and not only the possibility of flight, should influence the initial decision to permit pretrial release"]). Because it marked "a departure from traditional practice and because it [was] so potentially subject to abuse, it was expressly limited to only those cases where one already charged with a serious crime [was] rearrested for another" (id. at 152). As an "added protection," an evidentiary hearing was mandated (id.; see also People v Saulnier, 129 Misc 2d 151, 154-155 [Sup Ct, NY County 1985]).

This same rationale explains why the legislature delineated specific situations in which bail could be ordered under CPL 530.60 (2) (b), and why additional evidentiary safeguards were applied before such bail could be imposed in those situations. The legislature, when passing the new bail statute, was deeply committed to the ideal of no cash bail or remand for non-qualifying offenses, and yet recognized that safeguards needed to be in place to address situations in which defendants released on non-qualifying offenses repeatedly failed to return to court, or committed certain new crimes while at liberty. It appears that the resulting statutory scheme was a compromise reflecting these equally important considerations. On the one hand, the legislature wanted to do away with cash bail for what it viewed as less serious offenses. At the same time, the legislature recognized that courts must have some mechanism to set bail for defendants who, while released on non-qualifying{**67 Misc 3d at 518} offenses, persistently fail to appear in court or continue to commit additional serious crimes. Finally, in order to make sure that courts do not overuse their ability to set bail on non-qualifying offenses under these limited circumstances, the legislature retained, and even expanded, the evidentiary hearing requirement as an extra layer of process for these defendants.

Put another way, the legislature did not mandate the evidentiary hearing specified in section 530.60 (2) (b) for qualifying offenses because the concerns outlined above are not present with qualifying offenses. This class of criminal conduct has already been deemed by the legislature to be worthy of being subjected to the court's broad discretion to set the appropriate securing order, including bail and, with qualified felony offenses, remand. The court's ability to set bail on a qualifying offense continues to exist throughout the pendency of the criminal case and there is nothing in section 530.60 that limits that ability. Indeed, CPL 530.60 (1), read in conjunction with CPL 530.20, specifically allows it. Section 530.60 (2) (b) represents an expansion, not a reduction, of the court's ability to set bail in certain situations (see People v Torres at 150 [in analyzing the earlier amendment to CPL 530.60, the court held, "The new amendment plainly does not repeal the existing power to revoke bail for good cause, which indeed is inherent in the court"]).

Reading CPL 530.60 (2) (b) to apply any time a court felt it necessary to revoke a securing order and set bail on a defendant accused of a qualifying offense would also lead to anomalous and nonsensical outcomes. The Court of Appeals has consistently held that courts must interpret statutes so as to avoid such unreasonable or absurd results (People v Garson, 6 NY3d 604, 614 [2006]; People v Kramer, 92 NY2d 529, 539 [1998]). For example, consider a defendant charged with a qualifying offense of robbery in the first degree. The new bail law allows the arraignment court, after hearing the arguments of counsel and making the necessary finding of risk of flight and determining the least restrictive means to ensure the defendant's return to court, to set bail on such a defendant. The statute does not require an evidentiary hearing, the cross-examination of witnesses or "clear and convincing" findings.

Assume, however, that the arraignment court decides instead to release the defendant under supervision, and the defendant fails to appear on his adjourn date and remains an absconder{**67 Misc 3d at 519} for six months before being returned to court by the police. If subdivision (2) (b) applies to this defendant, the court would now have to hold a full evidentiary hearing, allow the defense to cross-examine witnesses, and find by clear and convincing evidence that the defendant's absence was "willful and persistent" before setting bail on exactly the same crime that would have required only a summary hearing at arraignment. It makes absolutely no sense that the defendant would be entitled to more process after placing himself in a worse position by missing his court date.

Similarly, a defendant charged with a qualifying felony may be remanded at arraignment if there is no less restrictive alternative to secure her return to court (CPL 530.20 [1] [b]). However, if this same defendant were released and brought back to court after persistent absences, mandating the application of subdivision (2) (b)—as the defense argues in this case—would prevent the court from remanding the defendant because subdivision (2) (b) affords the court no remand option.^[FN*] Under this untenable interpretation, the court would lose its ability to remand despite the defendant's subsequent conduct that demonstrates her to be a higher flight risk.

For all of the above reasons, the court holds that a securing order in a qualifying offense may be modified based on good cause pursuant to CPL 530.60 (1), and the court's ability to do so is not limited by CPL 530.60 (2) (b). Because the court placed its consideration of the factors outlined in CPL 510.30 on the record when setting bail on February 18, it is unnecessary to go through them again here.

2. Defendant's request for an evidentiary hearing pursuant to CPL 510.40 (3) is denied.

On February 26, 2020, defendant renewed his argument for release, this time arguing that an evidentiary hearing was required under a different statute, CPL 510.40 (3), before bail could be set. After finding that this statute applied only to changes to non-monetary conditions of release, the court denied the defense's request and maintained the same bail conditions. This portion of the decision further explains the court's oral decision and order from February 26.

CPL 510.40 (3) provides, in whole:

"Non-monetary conditions of release shall be {**67 Misc 3d at 520}individualized and established in writing by the court. . . . In the event of alleged non-compliance with the conditions of release in an important respect, pursuant to this subdivision, additional conditions may be imposed by the court, on the record or in writing, only after notice of the facts and circumstances of such alleged non-compliance, reasonable under the circumstances, affording the principal and the principal's attorney and the people an opportunity to present relevant, admissible evidence, relevant witnesses and to cross-examine witnesses, and a finding by clear and convincing evidence that the principal violated a condition of release in an important respect. Following such a finding, in determining whether to impose additional conditions for non-compliance, the court shall consider and may select conditions consistent with the court's obligation to impose the least restrictive condition or conditions that will reasonably assure the defendant's return to court. The court shall explain on the record or in writing the reasons for its determination and for any changes to the conditions imposed."

Defendant's argument that this statute applies to the case at hand is belied by the language of the statute itself. The court begins by noting that "release under non-monetary conditions" is a separate and distinct form of securing order that was introduced along with the other criminal reforms discussed in the previous section (see e.g. CPL 510.10 [1] [requiring an arraignment court to, by a securing order, "release the principal on the principal's own recognizance, release the principal under non-monetary conditions, or, where authorized, fix bail or commit the principal to the custody of the sheriff"]). Specifically, CPL 500.10 was amended to add the definition of "[r]elease under non-monetary conditions" (CPL 500.10 [3-a]). Under this definition, the court may "authorize[ ] the person to be at liberty during the pendency of the criminal action or proceeding involved under conditions ordered by the court, which shall be the least restrictive conditions that will reasonably assure the principal's return to court" (id.). The statute goes on to provide some specific examples of such conditions.

[2] It is clear from the face of section 510.40 (3) that it governs the imposition of additional non-monetary release conditions after a defendant's noncompliance with conditions{**67 Misc 3d at 521} originally set, not the setting of bail after the revocation of the original conditions. For instance, the section begins by commanding that non-monetary conditions of release be set forth in writing (CPL 510.40 [3]). It also provides that when "non-compliance with the conditions of release in an important respect" occurs, additional conditions may be imposed only after an evidentiary hearing (id. [emphasis added]). The statute further provides that before imposing such additional conditions, the court must explain on the record the reasons for "any changes to the conditions imposed" (id. [emphasis added]). Significantly, the section does not reference the imposition of bail at all. In other words, release with conditions is distinct from bail, and section 510.40 (3) specifically contemplates what the court needs to do in order to impose "changes to the conditions imposed" (id.). As the court in this case did not change the non-monetary conditions, but rather revoked a securing order and set bail, this statute is inapplicable, and the defendant's request is denied.