Criminal Court of the City of New York, Bronx County, May 3, 2021

Darcel D. Clark, District Attorney (John Oxenreiter of counsel), for plaintiff.

The Bronx Defenders (Ashley Alger of counsel) for defendant.

While the spirit behind New York's recent bail reform law may have been salutary, the execution of the law by the legislature was not. The initial 2019 reforms, which eliminated cash bail for many crimes, were passed not as stand-alone legislation, but rather as part of New York's annual budget process (see Emmanuel Hiram Arnaud & Beulah Sims-Agbabiaka, New York Bail Reform: A Quick Guide to Common Questions and Concerns, 106 Cornell L Rev Online 1, 2 [2020]). After much public outcry, certain of these reforms were "scal[ed] back" one year later "by significantly expanding the offenses eligible for bail and pretrial detention" (id. at 3).^[FN1] Because both the initial reforms and the "rollback" resulted from Albany's notoriously opaque budget process, "[n]either the state Senate nor Assembly held public hearings on the bail{**72 Misc 3d at 539} statute" (id. at 2 n 4). As a result, courts have been left to untangle sometimes carelessly crafted language with no guidance from legislative history.

In this case, the court is called upon to divine the meaning of CPL 510.10 (4) (t), one of the 2020 "rollback" provisions. This paragraph turns a previously non-bail eligible offense into a bail eligible one when the defendant is charged with a crime involving "harm to an identifiable person or property" committed while he is at liberty on a charge alleging similar harm, if the prosecutor can show "reasonable cause to believe" that the defendant committed both the new and "underlying" crimes. The central issue presented in this case—an issue about which the statute provides precious little guidance—is how the prosecutor can establish this "reasonable cause."^[FN2]

The defendant faces assault in the third degree (Penal Law § 120.00 [1]), menacing in the second degree (Penal Law § 120.14 [1]) and other related charges. At the defendant's arraignment on March 14, 2021, the People argued that bail was appropriate because the new charges were committed while the defendant was at liberty on three separate indictments for assault and robbery. The defendant opposed and asked to be released on his own recognizance.

After extensive on-the-record argument,^[FN3] the court found that the People had met their burden of showing reasonable cause to believe that the defendant had committed both the instant and "underlying" crimes, and further found that bail was the least restrictive means to ensure the defendant's return to court. Although the court gave its reasons for setting bail from the bench, this written decision is issued to supplement the oral decision and elaborate upon the manner in which a bail hearing must be conducted under this novel statute.{**72 Misc 3d at 540}

The instant case is the defendant's fourth pending criminal matter in the Bronx. The oldest case arose from an incident that took place on July 11, 2018. In that case, the defendant allegedly struck the complaining witness with a full gallon-sized water bottle, causing him to fall from his bicycle. It is further alleged that the defendant punched the complainant in the face and removed his wallet from his pants pocket while another individual picked up the complainant's bicycle and attempted to get away with it. The defendant was arrested the following day and charged with robbery in the first degree (Penal Law § 160.15 [3]), grand larceny in the fourth degree (Penal Law § 155.30 [5]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and other related charges. Bail was then set in the amount of $5,000 cash and $10,000 insurance company bond, which was posted. A true bill was voted on July 23, 2018, and the defendant was arraigned on the indictment on August 2, 2018 (indictment No. 1533-2018).

In the second case, it is alleged that on or about March 8, 2019, the defendant punched the complainant multiple times about the body with a closed fist while a separately apprehended juvenile allegedly slashed the complainant across the right side of his face with a knife. The complainant was taken to a hospital where he received 25 stitches for the wound. The defendant was arrested on March 28, 2019, and charged with assault in the first degree (Penal Law § 120.10 [1], [2]), menacing in the second degree (Penal Law § 120.14 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]) and other related charges. Bail was set in the amount of $20,000 cash over $20,000 insurance company bond, which was posted, and the defendant was subsequently indicted (indictment No. 828-2019).

The third case arose from an incident on October 11, 2019. That case involved allegations of the defendant displaying an imitation pistol, taking the complainant's iPhone and a pair of headphones, and hitting the complainant in the face with an iPhone, while a separately apprehended juvenile offender allegedly grabbed the complainant by the hood of his sweatshirt and held him. The defendant was arrested the following day and charged with robbery in the first degree (Penal Law § 160.15 [3]), grand larceny in the fourth degree (Penal Law § 155.30 [5]), assault in the second degree (Penal Law § 120.05{**72 Misc 3d at 541} [2]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and other related charges. At his arraignment on October 12, 2019, bail was set in the amount of $2,500 cash over $5,000 insurance company bond. Bail was posted that night and the defendant was released. This case was indicted under indictment number 2146-2019.

Finally, in the instant case, it is alleged that on or about March 7, 2021, at approximately 2:30 a.m. inside of 3204 Park Avenue, Bronx County, the defendant displayed a knife and stated to the complaining witness, "I will cut you in your fucking face." According to the criminal court complaint, the defendant pushed and punched the complainant in the face multiple times, causing her to suffer a laceration to her left arm, pain to her shoulder, bleeding and swelling to her lips and scratches to her face. As a result, the complaint alleges, the complaining witness received six stitches for the laceration to her arm. The defendant was arrested on March 13, 2021, following an identification procedure, and charged with misdemeanor assault, menacing and other related charges. During the defendant's arraignment on March 14, the People asked the court to set bail pursuant to CPL 510.10 (4) (t). The defendant opposed, which forms the basis of this decision.

New York underwent a series of criminal justice reforms in 2020 (L 2020, ch 56, § 1, parts UU [eff July 2, 2020], HHH [eff May 3, 2020]; L 2019, ch 59, § 1, part JJJ [eff Jan. 1, 2020]). One of the most significant changes was the elimination of cash bail for individuals charged with "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-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] [b]).

The statute at issue, CPL 510.10 (4) (t), converts what would otherwise not be a bail eligible offense into a bail eligible one when the defendant is charged with a

"felony or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant{**72 Misc 3d at 542} was released on his or her own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property" (id.).

Before the court may consider setting bail under this statute, however, "the prosecutor must show reasonable cause to believe that the defendant committed the instant crime and any underlying crime" (id.). Finally, for the purposes of this statute, "any of the underlying crimes need not be a qualifying offense" (id.).

In this case, the People asked for bail because the defendant is charged in the new case with assaulting another individual while the defendant was released on bail on indictments for robbery and assault. The defendant asked to be released on his own recognizance, claiming that the People failed to demonstrate reasonable cause that he had committed the new crime.^[FN4]

Here, the court is asked to determine how the People can establish reasonable cause at a CPL 510.10 (4) (t) hearing. The starting point in statutory interpretation "must always be the language itself, giving effect to the plain meaning thereof" (Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011], quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). When examining a statute that forms a part of a broader statutory scheme, it must be given "sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose which harmonizes all its interlocking provisions" (Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]).

In the case at bar, the People initially argued that the misdemeanor complaint, which was signed by the detective who spoke to the complainant, was sufficient on its own to make out reasonable cause for the instant crime (tr at 5). On the other hand, the defense counsel argued that even though an evidentiary hearing ordinarily may not be required under the statute, such a hearing was necessary in this case because the prosecutor proffered only a hearsay declaration that insufficiently connected the defendant to the crime (tr at 7-8). Since the only witness to the crime was the complainant, defense{**72 Misc 3d at 543} claimed that only the complainant's live testimony, or at the very least a signed affidavit from her, could establish reasonable cause. After having carefully examined the statute at issue, other relevant and related statutes, and the parties' oral argument, the court concluded that what CPL 510.10 (4) (t) requires falls somewhere in between the extremes posited by the parties.

At one end of the spectrum, it is clear from the language of the statute itself that the mere filing of an accusatory instrument does not automatically make out reasonable cause under this paragraph. CPL 510.10 is titled "Securing order; when required; alternatives available; standard to be applied." Subdivision (3) provides that an individual charged with a "non-qualifying offense" must be released on recognizance or under the least restrictive non-monetary conditions (CPL 510.10 [3]). Subdivision (4) defines "qualifying offenses" and confers authority on the courts to consider bail in such cases, in addition to release on recognizance or [*3]non-monetary conditions (CPL 510.10 [4]). Notably, whereas simply being "charged" with a "qualifying offense" is enough for the court to consider bail in all of the other enumerated instances (CPL 510.10 [4] [a]-[s]), paragraph (t) is the only paragraph that imposes an additional requirement on the prosecutor to demonstrate "reasonable cause" for the current crime and any underlying crimes. This deliberate addition by the legislature makes clear that the mere filing of charges involving harm to another person or property is not automatically sufficient to establish reasonable cause.

On the other hand, it is equally clear that a full evidentiary hearing is not required. The fact that CPL 510.10 (4) (t) is silent as to the manner in which a hearing must be conducted speaks volumes when comparing it to the other statutes enacted or amended as part of the criminal justice reform. For example, under CPL 530.60 (2), an evidentiary hearing is required before certain changes or revocations can be made to the securing order. That statute directs the court to "receive any relevant, admissible evidence not legally privileged" and provides that the defendant "may cross-examine witnesses and may present relevant, admissible evidence on his own behalf" (CPL 530.60 [2] [c]; see also People ex rel. Chiszar v Brann, 69 Misc 3d 201 [Sup Ct, NY County 2020] [holding that an evidentiary hearing is required and giving a thorough analysis of the types of admissible evidence]; People v Knight, 67 Misc 3d {**72 Misc 3d at 544}247 [Sup Ct, Kings County 2020] [holding that admissible evidence is required for the People to meet their burden]; but see People v Jackman, 69 Misc 3d 180 [Crim Ct, Richmond County 2020] [an evidentiary hearing is not required under CPL 530.60 (2) (c)]).^[FN5] Similarly, before additional non-monetary conditions of release can be imposed based on allegations of noncompliance, CPL 510.40 (3) requires the court to give notice to the parties, and afford them "an opportunity to present relevant, admissible evidence, relevant witnesses and to cross-examine witnesses." Such statutory language demonstrates the legislature's willingness and capability to dictate when evidentiary hearings are required.

By contrast, the absence of an explicit mandate to hold a hearing, or specific references to "relevant, admissible evidence," "relevant witnesses" or an opportunity to cross-examine those witnesses in CPL 510.10 (4) (t) is a strong indication that the legislature intended the hearing to be conducted within the well-established contours of a bail application by the People (Matter of Estate of Youngjohn v Berry Plastics Corp., 36 NY3d 595, 604 [2021] ["amendments should typically be construed together with the original act"]). Certainly, it is difficult to imagine the legislature attempting to change the manner in which bail hearings are conducted without a clear mandate (People v Tychanski, 78 NY2d 909, 911 [1991], citing Pajak v Pajak, 56 NY2d 394, 397 [1982] ["The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended"]; People v Finnegan, 85 NY2d 53, 58 [1995] ["We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended"]).

At a bail hearing, the court is instructed to assess the bail factors outlined in CPL 510.30 (1) "on the basis of available information." This includes, for example, the accusatory instrument in the case, prosecutor's notices, defendant's rap sheet, existence of any warrants, and any other relevant information provided to the court by the lawyers. Bail hearings are not evidentiary [*4]hearings; they are more informal affairs during which the court is allowed to rely upon all manner of information and judge its relevance to the bail determination in conjunction{**72 Misc 3d at 545} with the factors outlined in the bail statute. It follows, then, that since paragraph (t), as outlined above, is devoid of any restrictions as to the type of information the court may review in making the reasonable cause determination, the rules of a general bail hearing should apply.

As a practical matter, in many cases, the information contained in the accusatory instrument may be sufficient to satisfy the People's burden. This is especially so because the accusatory instrument must provide "reasonable cause to believe that the defendant committed the offense[s] charged" (see CPL 100.40 [1] [b] [informations]; [4] [b] [misdemeanor and felony complaints]). Once again, however, given the way that the statute is drafted, reasonable cause is not automatically made out by the filing of an accusatory instrument; but it could be sufficient, depending on the level of detail provided in the affidavit.

The fact that the accusatory instrument is not an information, and therefore relies on hearsay, is not necessarily a bar to it being used, in whole or in part, to establish reasonable cause at a CPL 510.10 (4) (t) hearing. As discussed above, prohibiting the consideration of hearsay would contradict the express provision that permits the court to consider all relevant and available information in a bail hearing. Additionally, there is simply no indication in the statute that the legislature intended to prevent hearsay from being used to establish reasonable cause. The court finds People ex rel. Chiszar v Brann to be persuasive authority on this issue. In examining the types of admissible evidence in a CPL 530.60 (2) (c) hearing, the Brann court began its analysis by noting, "[e]xcept 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' " (id. at 206, citing CPL 70.10 [2]). However, the court held that the use of the phrase "relevant, admissible evidence" in section 530.60 and the express authorization for one form of hearsay to the exclusion of others was a strong enough indication of the legislative intent to bar most hearsay evidence at a hearing under that statute (id. at 205-206). In comparison, the only natural and reasonable interpretation of the radio silence in CPL 510.10 (4) (t) is that the legislature simply did not intend any such prohibition against hearsay evidence. In fact, many consequential pretrial decisions in criminal cases are often made based on hearsay. In{**72 Misc 3d at 546} the search warrant context, an application may be made "based upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated" (CPL 690.35 [3] [c]; see also People v Hetrick, 80 NY2d 344, 348 [1992] ["The requirement of probable cause may be satisfied by unsworn hearsay, however, when the police officer applying for the warrant has knowledge of facts derived from a reasonably trustworthy source sufficient to cause a person of reasonable caution to believe that contraband is present in the premises to be searched"]; People v Watson, 100 AD2d 452, 462 n 6 [2d Dept 1984] [that the information is hearsay on hearsay does not necessarily preclude its use in determining probable cause]).

Finally, prohibiting the use of hearsay evidence at this juncture in a criminal proceeding would be inconsistent with the entire statutory scheme. A misdemeanor complaint, which contains hearsay allegations, may serve as a basis for the commencement of a criminal action (CPL 100.10 [4]). It is therefore a legally sufficient accusatory instrument upon which bail could be set. Because the court can consider bail in, for example, a misdemeanor sex crime (CPL 510.10 [4] [e]), misdemeanor criminal contempt (CPL 510.10 [4] [h]), or misdemeanor bail [*5]jumping (CPL 510.10 [4] [q]) case simply by virtue of such charges being brought against the defendant by way of an unconverted complaint, it would be unnatural and unreasonable to hold that only the bail applications brought under paragraph (t) cannot rely on hearsay. For all of these reasons, the court holds that the People may produce and rely on hearsay in meeting their reasonable cause burden under paragraph (t), provided that, as with search warrant applications, they identify and state the source of information for the record.

In sum, there is no prerequisite of particular documents, information or testimony that the prosecutor must present to establish reasonable cause. Rather, the People may demonstrate reasonable cause by a plethora of means at their disposal: the accusatory instrument in the case, prosecutor's notices, defendant's rap sheet, existence of any warrants, and any other relevant information in their possession. The court, in turn, can review the amount of detail provided by the People in or outside of the four corners of the accusatory instrument, the level of specificity in a verified affidavit, the reliability of any hearsay{**72 Misc 3d at 547} declarants, admissions by the defendant, whether any physical item was recovered, or whether there was an identification procedure, and weigh them against favorable evidence for the defendant including the existence of any Brady disclosures.

Applying these legal principles to the facts at hand, the People have clearly demonstrated reasonable cause to believe that the defendant committed the current crime. Through the criminal court complaint and the People's oral representations during the bail application, it is alleged that the complaining witness and her friends were at a party and the defendant, who is Facebook friends with her, was also present. When the complainant declined the defendant's invitation to dance, the defendant sat next to her and asked, in sum and substance, why she came to a party if she was not going to dance (tr at 12). When the complainant got up to move away, the defendant displayed a knife, threatened to cut her face, and continued to curse at her (id.). When a bystander asked him what was going on, the defendant stated, in sum and substance, "nah, bro, this bitch thinks she's all that; she doesn't want to dance" (id.). The people at the party asked the defendant to leave, but he came back, walked next to the complainant, and used his shoulder to push the complainant on her shoulder (id. at 13). It is alleged that the defendant then proceeded to punch the complainant's face multiple times, causing swelling and bleeding to the right side of her lips and a bleeding laceration to her forearm (id.). The complainant was treated at a local hospital and received six stitches (id.). The People further informed the court that the complainant knew the defendant by name and identified him in a single photograph identification procedure (id.). Although the arrest did not take place until a week later, the incident was reported approximately 10 minutes after it occurred (id.). Given the amount of detail and the level of specificity, the familiarity between the parties, the reliability of the hearsay declarant whose identity was known to the police, and the reliability of the identification procedure, the court determined that the prosecution met their burden of demonstrating reasonable cause.

Of course, the reasonable cause analysis under CPL 510.10 (4) (t) does not end the matter. Even after finding reasonable cause for both the current and the underlying crimes, the court still assessed whether the defendant was a flight risk, and if so, what was the least restrictive means to ensure his return. For the reasons stated orally at the arraignment, the court{**72 Misc 3d at 548} found that the defendant was a flight risk, and after considering various factors outlined in CPL 510.30 (1), the court set bail in the amount of $10,000 cash, $10,000 credit card, $20,000 insurance company bond, or $20,000 partially secured bond (secured by 10%).