Supreme Court, New York County, June 12, 2020

Janet Sabel, The Legal Aid Society, New York City (Samuel Chiszar of counsel), for petitioner.

Cyrus R. Vance, Jr., District Attorney, New York City (Matthew Paulbeck of counsel), for respondent.

A writ of habeas corpus is brought on behalf of Anthony Allen, who is currently in custody on a securing order, following revocation proceedings pursuant to CPL 530.60 (2) (a). The writ seeks the release of Mr. Allen on the ground that a judge of this court abused her discretion in revoking his securing order and setting bail. For the reasons that follow, the petition is granted.

Background

Mr. Allen is accused of repeated residential burglaries in a Washington Heights neighborhood. He is alleged to have used a metal pry bar to open the front door of an apartment building on January 31, 2020, and once inside to have stolen packages from the mailroom. He is also alleged to have returned to the same building on February 15, 2020, and stolen the contents of a package from the mailroom. Both incidents were captured on video surveillance. Mr. Allen was arrested March 3, 2020. A grand jury indicted him on March 11, 2020, charging him with two counts of burglary in the second degree (Penal Law § 140.25 [2]) and two counts of burglary in the third degree (Penal Law § 140.20).

Mr. Allen is also alleged to have entered a second apartment building, five streets away, on March 29, 2020, and stolen a package from the mailroom there. This incident was also captured on video surveillance. He was arrested for this incident on April 1, 2020, and charged with burglary in the second degree and other related charges. This matter has not yet been indicted, likely because the COVID-19 pandemic has prevented the court from impaneling a grand jury since March 17, 2020.

Finally, Mr. Allen is alleged to have entered a third apartment building, a block away from the second, on April 18, 2020, and stolen contents from packages in its mailroom. This incident was again captured on video surveillance. On May 2, 2020, he was arrested and arraigned on a felony complaint{**69 Misc 3d at 203} charging him with two additional counts of burglary in the second degree and other related charges. Mr. Allen was remanded pending a revocation hearing.

On May 4, 2020, another judge of this court held a revocation hearing, pursuant to CPL 530.60 (2) (a). The People called no witnesses, laid no foundation, but submitted the signed May 2, 2020 felony complaint in support of their position. Although Mr. Allen did not raise this issue, the "signature" on the felony complaint appears to be the detective's name, typed in a script font. Petitioner presented no evidence but argued that the People's evidence—the felony complaint—was inadmissible. The revocation hearing court disagreed and found reasonable cause to believe that Mr. Allen had committed a new violent felony and revoked his securing order. The court issued a new securing order, setting bail in the amount of $50,000 cash, $100,000 insurance company bond, or $150,000 partially secured bond. Mr. Allen thereafter sought the instant writ.

CPL 530.60 Revocation

CPL 530.60 contains three mechanisms by which a defendant's securing order may be revoked.^[FN1] The provision relevant to these proceedings, CPL 530.60 (2) (a), authorizes a court to revoke a securing order after a hearing when there is reasonable cause to believe a felony defendant at liberty has committed a class A felony, a violent felony, or intimidated a victim or witness in violation of Penal Law §§ 215.15, 215.16, or 215.17. A court must first hold a hearing wherein it receives "relevant, admissible evidence," and allows the defendant to cross-examine witnesses and present "relevant, admissible evidence" (CPL 530.60 [2] [c]). The court may also receive a transcript of grand jury testimony and may do so in lieu of a witness's appearance (id.). Upon a finding of reasonable cause, a court may revoke a defendant's securing order and issue a new order fixing bail or remanding the defendant for a period of up to 90 days (CPL 530.60 [2] [d] [i]).

Legal Analysis

The court must determine whether Mr. Allen is illegally detained (CPLR 7010). This means the court must ensure that{**69 Misc 3d at 204} the revocation of petitioner's previous securing order and the issuance of his present securing order were lawful. This question turns on whether the People may satisfy their burden of proof under CPL 530.60 (2) (a) by submitting a felony complaint [*3]that has been filed in Criminal Court. As discussed herein, the court finds that they may not.

Mr. Allen does not challenge the court's determination that the content of the felony complaint established reasonable cause to believe he had committed a violent felony. The point of contention is whether the felony complaint—a sworn, out-of-court statement—was properly admissible in the hearing. The court's primary consideration here is to give effect to the intention of the legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 92; Samiento v World Yacht Inc., 10 NY3d 70, 77-78 [2008]). Though "the clearest indicator of legislative intent is the statutory text" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; McKinney's Cons Laws of NY, Book 1, Statutes § 94), CPL 530.60 neither expressly permits, nor expressly prohibits hearsay in a revocation hearing.^[FN2] Therefore, the legislature's intent must be inferred from the language of the statute and other statutory and case law.

The legislature's use of the phrase "relevant, admissible evidence" demonstrates its intent that the ordinary rules of evidence apply to CPL 530.60 (2) (c) revocation hearings. The People argue that "admissible" means admissible in the proceedings at hand, and that hearsay is admissible at hearings unless the legislature has expressed a contrary intention. The court disagrees. The general rule of evidence for court proceedings in New York is that evidence is admissible so long as it is relevant, and it does not violate an exclusionary rule (People v Alvino, 71 NY2d 233, 241 [1987]). The rule against hearsay is such an exclusionary rule (see Guide to NY Evid rule 1.03, Scope of the Guide [evidentiary rules applicable to proceedings in all courts of the State of New York unless statute or case law prescribes otherwise]). Where the legislature intended a court to receive hearsay during a proceeding, it has clearly so stated (see CPL 400.30 [4] [exclusionary rules inapplicable in hearing to determine fines]; 710.60 [4] [hearsay admissible in suppression hearings]; Correction Law § 168-n {**69 Misc 3d at 205} [3] ["reliable hearsay" admissible in SORA hearing]; Mental Hygiene Law § 81.12 [court may waive rules of evidence for good cause in proceeding to appoint guardian]). By contrast, the legislature's decision to use the phrase "admissible evidence" evinces its intent to prohibit hearsay in the hearing.

The People argue that hearsay is generally admissible in hearings, and the legislature specifies when it is not. In support they point to hearings pursuant to People v Sandoval (34 NY2d 371 [1974]), People v Ventimiglia (52 NY2d 350 [1981]), and People v Outley (80 NY2d 702 [1993]).^[FN3] The People fail to distinguish between hearings established by statute and those due process opportunities to be heard that have been established by legal decisions. The Court of Appeals in People v Sandoval was not interpreting an existing statute when it directed that a motion was the appropriate mechanism for prospective rulings limiting cross-examination, "accompanied in rare instances . . . by an appropriate evidentiary hearing" (34 NY2d at 375). Nor was that Court bound by its duty to give effect to legislative intent when it suggested in dicta in People v Ventimiglia that a prosecutor should seek prospective evidentiary rulings regarding potentially prejudicial evidence (52 NY2d at 361-362). Similarly, the Court of Appeals [*4]did not establish a new procedure when it held in People v Outley that a defendant arrested for a postplea, presentence offense, who raises an issue concerning his arrest, is entitled to an inquiry by the court (80 NY2d at 713). The Court, in fact, referred sentencing courts to the statutory procedures of CPL 400.10 presentence conferencing when it left to their discretion the determination of the nature and extent of the inquiry (id.).

New York's principles of statutory interpretation also weigh against admitting hearsay in a CPL 530.60 (2) (c) hearing. The statute expressly provides for the admission of one form of hearsay—a transcript of the presentation of the subsequent offense to a grand jury. The People have argued that this demonstrates that hearsay is admissible. Their interpretation, however, renders the provision superfluous and goes against the canon that statutory construction should give effect to every provision (McKinney's Cons Laws of NY, Book 1, Statutes § 98; Majewski, 91 NY2d at 587). The court believes instead that the legislature included the provision as an authorization. The statute describes a particular situation where hearsay is admissible,{**69 Misc 3d at 206} and the court must infer that the legislature's omission of other types of hearsay was intentional (McKinney's Cons Laws of NY, Book 1, Statutes § 240 [expressio unius est exclusio alterius, "expression of one is the exclusion of another"]; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208-209 [1976]). The corollary is that the legislature intended other hearsay to be inadmissible.

The reasonable inference from the statutory language suggests that the legislature intended the hearing to involve first-party testimony. The terms of the statute assume the existence of witnesses at the hearing. A defendant is permitted to cross-examine witnesses (CPL 530.60 [2] [c]). The district attorney is permitted to introduce grand jury testimony "in lieu of [a] witness' appearance" (id.). The phrase "in lieu of," meaning "in place of" or "as substitute for," implies that the legislature expected the hearing to involve witness testimony.

The reasonable inference from the rest of subdivision (2) also demonstrates that the legislature did not intend felony complaints to be admissible at these proceedings. The legislature demonstrated its awareness that felony complaints would be a common instigator of revocation hearings when it specifically addressed them in CPL 530.60 (2) (e). Had the legislature intended a felony complaint to satisfy the requirements of CPL 530.60 (2) (c), it would not have predicated a court's ability to remand a defendant pending the hearing upon the existence of such a complaint. That would be redundant. Instead, CPL 530.60 (2) (e) would simply have obviated the need for a hearing where a felony complaint was filed and authorized a court to immediately revoke and reset a securing order.

The legislature's use of the term "admissible," its provision for the admission of one specific form of hearsay, and its implication that the hearing would involve testimony demonstrate that hearsay not be considered in CPL 530.60 (2) (c) revocation hearings. Except where the legislature provides otherwise, a determination of whether "[r]easonable cause to believe that a person has committed an offense" exists is based upon "evidence or information which appears reliable" and "may include or consist of hearsay" (CPL 70.10 [2]). This is the reason CPL 180.60 (8) expressly permits "only non-hearsay evidence" in preliminary hearings, and CPL 190.30 (1) incorporates article 60 and its prohibition against hearsay into grand jury proceedings. The court would prefer the legislature had been explicit in CPL 530.60 (2) (c), but the overwhelming evidence{**69 Misc 3d at 207} of its intent to prohibit hearsay is sufficient to override the presumption.

Finally, principles of justice and due process require that the hearing be more than cursory. Deprivation of liberty cannot occur without due process (People ex rel. Ordway v St. [*5]Saviour's Sanitarium, 34 App Div 363, 373 [1st Dept 1898] [commitment upon ex parte affidavit violated due process]). For example, when a securing order fixes bail or remands a defendant based upon a qualifying offense charged in a felony complaint, the People must indict the offenses or conduct a preliminary hearing, otherwise the defendant is entitled to release (CPL 180.80). How, then, can this court reasonably construe section 530.60 to say that the same type of instrument—a felony complaint—is meant to authorize a deprivation of liberty for up to 90 days, without the same protections? The statute's provisions that the hearing can be satisfied by a court's review of the grand jury minutes or its finding of reasonable cause at a preliminary hearing demonstrate the legislature's intent that it afford a similar level of due process protection.

Conclusion

The hearing court did not abuse its discretion, but did err on the law. The language of CPL 530.60 (2) (c) demonstrates the legislature's intent that a subdivision (2) revocation hearing exclude hearsay that does not fall under a recognized exception. Under these circumstances, it was error to permit the People to introduce a hearsay felony complaint into evidence.

Remedy

Pursuant to CPLR 7010 (a), the court directs a final judgment discharging Mr. Allen from his detention pursuant to the May 4, 2020 securing order. Pursuant to CPLR 7012, he "shall not be detained for the same cause, except by virtue of a subsequent lawful mandate." The court now considers whether it may issue a lawful mandate to detain the petitioner, pending a new revocation hearing.

Pursuant to CPL 530.60 (2) (e), a defendant who is subject to a subdivision (2) revocation hearing, and against whom a felony complaint has been filed which charges the commission of a violent felony while he was at liberty, may be remanded up to 72 hours, pending a revocation hearing. Nothing in section 530.60 prevents the court from conducting multiple revocation hearings. In fact, such a restriction would undermine the purpose of the statute—to ensure that defendants are abiding by the conditions of their release from custody. On its face, therefore,{**69 Misc 3d at 208} the statute applies to the instant petitioner. A felony complaint has been filed against him that charges him with committing a violent felony while at liberty on a pending felony case, and the court is directing a new revocation hearing. The court may thus direct that the petitioner be committed to the custody of the sheriff pending that hearing (see People ex rel. Ryan v Warden, N.Y. City House of Detention, 113 AD2d 116, 120 [1st Dept 1985] [granting writ petition and remanding for hearing pursuant to CPL 530.60 (2) (a)]).

Order

The court orders that Mr. Allen's May 4, 2020 securing order be vacated, and issues a new temporary securing order, committing him to the custody of the sheriff, pending a new revocation hearing Friday, June 12, 2020, at 3 p.m.