Supreme Court, Queens County, April 13, 2020

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

Melinda Katz, District Attorney (William Branigan of counsel), for the People.

On March 20, 2020, as the immense magnitude of the COVID-19 public health crisis in New York State became increasingly clear, Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8). For the general public, the most notable aspect of the order was probably that 100% of workers employed by nonessential businesses were directed to begin working from home. But for lawyers, litigants, judges, and court personnel—many of whom had reason to be waiting for the Governor to issue such an order—there was another component of the Governor's executive order that was particularly consequential: its tolling of all manner of litigation deadlines and time limitations.

As it turns out, on the same day that Governor Cuomo issued Executive Order 202.8, petitioner/defendant William Badillo was charged, in a felony complaint, with first- and third-degree robbery. He is currently detained at the Vernon C. Bain Center in the Bronx. He contends, in this petition for a writ of habeas corpus, that he is being unlawfully detained, in violation of his rights under section 180.80 of the Criminal Procedure Law. That statute, in simple terms, requires the release of an incarcerated defendant charged by a felony complaint after five or six days if the prosecution has not, among other things, obtained a grand jury indictment or commenced a preliminary felony hearing. Defendant argues that Executive Order 202.8 did not suspend CPL 180.80, and therefore he must be released. If he is correct, all defendants detained on unindicted felony charges—no matter how serious—would be presumptively entitled to release within days of their arrest during this global pandemic.

The court rejects defendant's interpretation of Executive Order 202.8 and thus declines to order his release from custody. Nevertheless, the court modifies defendant's securing order as previously indicated in a short-form order.{**67 Misc 3d at 640}

On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202. The order, issued in response to the rapidly escalating COVID-19 public health emergency, stated that "a disaster [was] impending in New York State, for which the affected local governments [would be] unable to respond adequately" and therefore the declaration of "a State disaster emergency for the entire State of New York" was necessary (Executive Order [A. Cuomo] No. 202 [9 NYCRR 8.202]).^[FN1] At the time, the number of confirmed COVID-19 cases in the state was less than 100 (Jesse McKinley & Edgar Sandoval, Coronavirus in N.Y.: Cuomo Declares State of Emergency, NY Times, Mar. 7, 2020, https://nyti.ms/2XkHaZW); a month later, that number would exceed 138,000 (N.Y. Virus Deaths Hit New High, but Hospitalizations Slow, NY Times, Apr. 7, 2020, https://nyti.ms/3aOzvXz).

Having declared a state disaster emergency, the Governor began, in Executive Order 202, to invoke his authority under section 29-a of article 2-B of the Executive Law, to "temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency . . . , if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster" (Executive Law § 29-a [1]). For example, he suspended certain provisions of the Vehicle and Traffic Law in order to allow vehicles that were properly registered in other jurisdictions "to assist in preparedness and response to the COVID-19 outbreak" (Executive Order No. 202).

In the days and weeks that followed, the Governor, in a series of executive orders, continued to suspend other laws and regulations that were viewed as potential impediments to effectively addressing the COVID-19 emergency (see e.g. Executive Order [A. Cuomo] No. 202.5 [9 NYCRR 8.202.5] [suspending provisions of the Education Law and related regulations "to the extent necessary to allow physicians licensed and in current good standing in any state in the United States to practice medicine in New York State without civil or criminal penalty related to lack of [*3]licensure"]). He also issued a number of directives aimed at slowing the spread of COVID-19 by limiting large gatherings of people (see e.g. Executive Order [A.{**67 Misc 3d at 641} Cuomo] Nos. 202.1 [9 NYCRR 8.202.1] [ordering the 30-day postponement or cancellation of "(a)ny large gathering or event for which attendance is anticipated to be in excess of five hundred people"], 202.3 [9 NYCRR 8.202.3] [modifying the large gathering order in Executive Order 202.1 to gatherings where "more than fifty persons are expected in attendance"], 202.10 [9 NYCRR 8.202.10] [cancelling or postponing all "(n)on-essential gatherings of individuals of any size for any reason"]). These efforts effectively culminated in the issuance of Executive Order 202.8, which ordered all nonessential businesses and nonprofit organizations to "reduce [their] in-person workforce at any work locations by 100% no later than March 22[, 2020] at 8 p.m."

The Office of Court Administration followed suit. Starting on Friday, March 13, 2020, the court system began drastically scaling back its operations in order to "reduce courthouse traffic" (Mem from Chief Admin Judge Lawrence K. Marks to All Jud and Non-Jud Personnel of Unified Ct Sys., Mar. 13, 2020 at 1). With respect to criminal proceedings, Chief Administrative Judge Lawrence Marks ordered that no new jury trials should be commenced. He also directed that "[n]o new grand juries shall be empaneled absent exceptional circumstances" (id.). Acknowledging the legal ramifications of suspending jury trials and grand jury activity—including potential violations of sections 30.30 and 180.80 of the Criminal Procedure Law—Chief Administrative Judge Marks noted that he "anticipate[d] the imminent issuance of an appropriate gubernatorial Executive Order authorizing these actions addressing criminal jury matters" (id. at 1 n). In a memorandum issued two days later, Judge Marks ordered the postponement, "until further notice," of "all non-essential functions of the courts" (Mem from Chief Admin Judge Lawrence K. Marks to All Jud and Non-Jud Personnel of Unified Ct Sys., Mar. 15, 2020 at 1). Court personnel not involved in essential court operations were directed to remain home indefinitely (Mem from Chief Admin Judge Lawrence K. Marks to All Jud and Non-Jud Personnel of Unified Ct Sys., Mar. 17, 2020).

On March 20, 2020, the Governor issued Executive Order 202.8. Again invoking his authority under section 29-a of article 2-B of the Executive Law, the order provided, in relevant part:

"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19{**67 Misc 3d at 642} health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020." (Executive Order No. 202.8.)^[FN2]

Two days later, in light of Executive Order 202.8—which Chief Administrative Judge Marks characterized as "suspending statutes of limitation in legal matters"—Judge Marks [*4]directed that, "effective immediately and until further order, no papers shall be accepted for filing by . . . a court in any matter of a type" not deemed essential (Admin Order of Chief Admin Judge of Cts AO/78/20 [Mar. 20, 2020]). Essential criminal matters were, according to Judge Marks, limited to arraignments, bail applications, proceedings involving temporary orders of protection, re-sentencings of detained and incarcerated defendants, and "essential sex offender registration act (SORA) matters" (id., exhibit A).

Meanwhile, at a little before 9:00 p.m. on March 19, 2020, defendant was arrested on bank robbery charges. He was arraigned the following day, in Queens Criminal Court, on a felony complaint that charged him with robbery in the first and third degrees. The complaint alleged that, during the afternoon of January 23, 2020, defendant robbed a branch of Popular Bank, in Queens, by displaying what appeared to be a firearm. The arraignment judge set bail and adjourned the case to March 25, 2020, for grand jury action.

By then, however, the Governor had issued Executive Order 202.8. And, just as consequentially, there were no grand juries empaneled in Queens County, since the Chief Administrative Judge had suspended the empanelment of new grand juries, and the term of the existing (term 3) grand jury panels had ended on March 20, 2020. Thus, there had been no grand jury{**67 Misc 3d at 643} action with respect to defendant's case, nor had a preliminary felony hearing (see CPL 180.60) been commenced.

According to defendant, his attorneys made several unsuccessful attempts, on March 25th, to be heard by a criminal court judge so that they could argue that the Governor's order did not suspend CPL 180.80^[FN3]—which, as relevant here, requires the release of a defendant held in custody for grand jury action, after 120 or 144 hours have passed since his arrest, unless the People have commenced a preliminary hearing; the grand jury has filed an indictment, or the People have filed with the court a notice that an indictment has been voted; or the People have [*5]convinced the court that there is "good cause" not to release the defendant—and therefore defendant was entitled to be released. He now brings this writ raising the same issue.

Executive Order 202.8 tolls, until April 19, 2020:

"any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or{**67 Misc 3d at 644} other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof."

Issued in "accordance with the directive of the Chief Judge . . . to limit court operations to essential matters during the pendency of the COVID-19 health crisis," Executive Order 202.8 broadly suspends time limits prescribed by, among other things, "the procedural laws of the state."

CPL 180.80 is clearly within the ambit of the order. By its plain language, CPL 180.80 imposes a "specific time limit" (120 or 144 hours, depending on the timing of the defendant's arrest) for the "filing" of an indictment or a "notice" that an indictment has been voted (CPL 180.80 [2] [a]) or, alternatively, for the "commencement" of a preliminary felony hearing (i.e., a "proceeding"), that applies in cases in which the defendant is charged by felony complaint and is held on bail or remand—all of which is "prescribed by the procedural laws of the state, [namely] . . . the criminal procedure law" (Executive Order No. 202.8). If the People fail to do what CPL 180.80 requires, within the time period the statute requires them to do it, the defendant is entitled to release on his own recognizance. Executive Order 202.8 effectively forestalls that consequence, during a time when prosecutors are unable to take the steps that section 180.80 requires.

Interpreting Executive Order 202.8 to encompass CPL 180.80 is, moreover, consistent with the Governor's obvious motivations in issuing it. Efforts to slow the spread of COVID-19 have resulted in an unprecedented shutdown of public life. Workers from the public and private sectors have been ordered to work from home. Schools across the country have closed, some for the rest of the academic year (Madeline Holcombe, Some Schools Closed for Coronavirus in US are Not Going Back for the Rest of the Academic Year, CNN.com, Mar. 18, 2020, https://cnn.it/2Xb5ahX). Elections have been postponed (Nick Corasaniti & Stephanie Saul, 16 States Have Postponed Their Primaries Because of Coronavirus. Here's a List., NY Times, Apr. 9, 2020, https://nyti.ms/2yEWNB4). Major sporting events have been canceled (see e.g. NCAA Tournaments Cancelled over Coronavirus, ESPN.com, Mar. 12, 2020, https://es.pn/34kn0k4).{**67 Misc 3d at 645} And cultural institutions of all kinds have been forced to close their doors to the public (Anastasia Tsioulcas, Performing Arts and Cultural Organizations Close Their Doors Due To Coronavirus, All Things Considered, NPR.org, Mar. 12, 2020, https://www.npr.org/2020/03/12/814992409/in-the-age-of-covid-19-event-cancellations-precipitate-a-large-economic-impact). Notably, many of these closures and postponements are open-ended, with no firm (or even aspirational) end dates.

The New York State court system, for its part, is no longer doing the one thing most people associate with the courts: trying cases. Instead, courts, which are operating with extremely limited staffing, are only performing functions that are considered essential, and even those functions are now being performed with all parties, including defendants, appearing [*6]remotely by videoconference (see New York State Unified Court System, Press Release, Virtual Courts Up and Running Statewide, Apr. 6, 2020, https://bit.ly/2XofOCa; see also CPL art 182). For criminal courts, this essentially means conducting proceedings that are crucial to maintaining public safety—such as the arraignment of new criminal cases and the issuance of orders of protection—as well as proceedings which will result in the resolution of cases and the release of defendants from incarceration, an issue of particular importance given the projected impact of COVID-19 inside jails and prisons.

In these extraordinary circumstances, the issuance of an order like Executive Order 202.8 only makes sense. For one thing, as the Chief Administrative Judge himself acknowledged (see supra at 641), it is a necessary complement to his series of orders related to the pandemic, which, as recounted above, placed a moratorium on jury trials and the empanelment of new grand juries, and scaled back court operations to essential functions. Indeed, the Governor prefaced the portion of the executive order that addresses legal deadlines by referencing these actions (see Executive Order No. 202.8 [noting "the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis"]). Obviously, if courts have stopped trying cases and grand juries are not convening, and therefore not voting indictments, any deadlines related to those court functions need to be suspended. In this regard, it is probably not a coincidence that the Governor issued Executive Order 202.8 on Friday, March 20, 2020, the very date on which grand jury terms in many counties, including Queens, were concluding (see CPL 190.15).{**67 Misc 3d at 646}

Executive Order 202.8 also furthers the goal of reducing traffic in the state's courthouses by suspending all kinds of litigation deadlines, so that courts can significantly reduce their on site staff and fewer lawyers, litigants, and members of the public will visit courthouses. And suspending CPL 180.80 is consistent with these aims. After all, a grand jury consists of between 16 and 23 grand jurors (CPL 190.05, 190.25). And grand jury proceedings involve, among others, prosecutors, law enforcement and civilian witnesses, stenographers, and court officers. Preliminary felony hearings involve all of those parties, as well as defense counsel, the defendant, and, of course, a judge (see CPL 180.60). Clearly, the continuation of these proceedings would undermine the goal of minimizing the number of people present in New York's courthouses. In fact, the congregation of this many people in a courtroom would violate the spirit, as well as the letter, of the Governor's series of executive orders cancelling public gatherings (see supra at 640-641).

Defendant does not disagree with this proposition. Indeed, one thing that prosecutors and defense lawyers seem to be on the same page about right now is the concern that courthouses are not particularly safe places to be during a pandemic (see Cara Bayles, COVID-19 Makes 'Strange Bedfellows' of LA Defenders, DAs, LAW360, Apr. 5, 2020, https://www.law360.com/articles/1260174/covid-19-makes-strange-bedfellows-of-la-defenders-das). He argues, however, that CPL 180.80 does not fall within the scope of Executive Order 202.8's suspension of time limitations because, in his view, "180.80 does not impose a 'specific time limit' on any 'legal action, notice, motion, or other process or proceeding.' "^[FN4] All section 180.80 [*7]does, according to defendant, is provide detained defendants with a mechanism for applying for release if the People have not, within 120 or 144 hours of the defendant's arrest,{**67 Misc 3d at 647} commenced a preliminary hearing or obtained an indictment. Even after the expiration of CPL 180.80's time limitations, defendant points out, the People can still present the case to the grand jury or commence a preliminary hearing.

Prosecutors, though, likely see the statute quite differently. They presumably view it as imposing a limitation on the amount of time they have to indict a case or begin a preliminary hearing when they have convinced a criminal court judge to set bail or remand a defendant, because they believe the defendant is a flight risk (see CPL 510.30 [1]). Of course, if the People fail to do one of the several things CPL 180.80 requires, within the prescribed time period, the defendant must be released. And for a prosecutor who believes that a defendant is unlikely to return to court, the fact that he or she can still present the case to the grand jury is probably cold comfort. In that sense, then, CPL 180.80 unquestionably imposes a "specific time limit" for "filing" an indictment or the "notice" that an indictment has been voted, or the "commencement" of a "proceeding." Executive Order 202.8, therefore, tolls that limitation period.

Contrary to defendant's assertion, the fact that the executive order does not specifically name CPL 180.80 is of no significance. To be sure, a suspension order issued pursuant to section 29-a of the Executive Law must "specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension" (Executive Law § 29-a [2] [c]). But Executive Order 202.8 does that, not by listing the name of every statute being suspended, but, instead, by specifying the types of provisions that are the subject of the order—namely, New York's "procedural laws" that prescribe "specific time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding." That, in this court's view, is specific enough to satisfy Executive Law § 29-a (2) (c), since anyone involved in the practice of law should understand which statutory provisions have been tolled by the order (see People ex rel. Hamilton v Brann, 67 Misc 3d 1205[A], 2020 NY Slip Op 50392[U], *1 [Sup Ct, Bronx County, Apr. 2, 2020, Fabrizio, J.] ["The language of (Executive Order 202.8) sweeps up every procedural time limit imposed in the Criminal Procedure Law and packages them in a broad order that is easy for a court to interpret"]).

For that reason, it does not matter that, during past state disaster emergencies, governors, including Governor Cuomo,{**67 Misc 3d at 648} have named CPL 180.80 in suspension orders. For example, as defendant points out, in the aftermath of Hurricane Sandy, Governor Cuomo issued an executive order specifically suspending CPL 180.80 (Executive Order [A. Cuomo] No. 53 [9 NYCRR 8.53] [issued Nov. 1, 2012]). And, in another executive order issued the day before, the Governor had suspended certain "statutory provisions establishing time limitations on actions and time in which to take an appeal" (Executive Order [A. Cuomo] No. 52 [9 NYCRR 8.52] [issued Oct. 31, 2012] [capitalization and emphasis omitted]). But that order only suspended a limited number of statutes from the Criminal Procedure Law, specifically sections 30.10 (statutes of limitations), 30.30 (speedy trial provisions), 310.30 (2) (which limits the duration of a recess of a deliberating jury), and article [*8]460 (which contains provisions limiting the amount of time to take an appeal)—and did not, for example, toll applicable deadlines for filing pretrial motions (see CPL 255.20) or providing pretrial notice of certain defenses (see CPL 255.10, 255.20).^[FN5] The combined effect of these orders, therefore, did not sweep as broadly as Executive Order 202.8—which makes sense, since, despite the immense scope of the disaster caused by Hurricane Sandy, that crisis did not result in the sort of unprecedented statewide shutdown of an as-yet-unknown duration caused by COVID-19—and thus explains why they were drafted differently.^[FN6] In any event, there is no particular formula that the Governor must follow when he suspends laws under section 29-a of the Executive Law; he simply must indicate with specificity which laws are being suspended. And, as already explained, the Governor did that in Executive Order 202.8.

Finally, it is worth noting that individuals in defendant's position are not without recourse—even during this period of sharply reduced court operations—to attempt to secure their release. Indeed, the resolution of applications related to bail is considered an essential function that courts must maintain. Thus, a defendant may, at any time, ask the court to reconsider a securing order based upon a change in circumstances (CPL 510.20 [1]). A defendant may also obtain de novo review by a{**67 Misc 3d at 649} supreme court justice of a securing order set by a criminal court judge (CPL 530.30 [1]), or file a petition for a writ of habeas corpus "if it appears that the constitutional or statutory standards inhibiting excessive bail or the arbitrary refusal of bail are violated" (People ex rel. Rosenthal v Wolfson, 48 NY2d 230, 232 [1979]).^[FN7]

Defendant availed himself of these processes, arguing not only that his continued detention was unlawful, but also that his bail was excessive and should be reduced. Although the court rejects the first contention, it agrees with the second and reduced defendant's bail to the extent indicated in its prior order.

"[u]pon application of a defendant against whom a felony complaint has been filed with a local criminal court . . . , and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the court must release him on his own recognizance unless:

"1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action or condition, or occurred with his consent; or

"2. Prior to the application:

"(a) The district attorney files with the court a written certification that an indictment has been voted; or

"(b) An indictment or a direction to file a prosecutor's information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or

"3. The court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice."