Criminal Court of the City of New York, New York County, March 22, 2022

Alvin Bragg, District Attorney, New York City (Maia Lichtenstein of counsel), for plaintiff.

Neighborhood Defender Services of Harlem, New York City (Avinash Samarth of counsel), for defendant.

At arraignment, a court must issue a securing order (CPL 510.10 [1]). The court begins with the presumption that the defendant should be released on his/her/their own recognizance (ROR) unless it makes an individualized determination that the defendant poses a risk of flight to avoid prosecution (id.). In making such a determination, the court is required to consider information, as relevant here, including the pending charges and the defendant's activities and history, criminal record, prior juvenile adjudications, and prior warrant history. If the court finds that a defendant poses a risk of flight, it must select the least restrictive alternative condition or conditions that will reasonably assure the defendant's return to court (id.). If monetary bail is deemed to be the least restrictive condition, the court must also inquire into the defendant's financial circumstances (CPL 510.30 [1]).

The most common outcomes at arraignment are ROR, release with conditions, monetary bail, or remand. But the legislature also provided another, less-frequently used release condition: electronic monitoring. CPL 510.40 (4) (a) provides that

"[e]lectronic monitoring of a principal's location may be ordered only if the court finds, after notice, an opportunity to be heard and an individualized determination explained on the record or in writing, that the defendant qualifies for electronic monitoring in accordance with subdivision twenty-one of section 500.10 of this title, and no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure a principal's return to court."

Said another way, the court must make an informed decision that electronic monitoring is the least restrictive alternative to assure the defendant's continued attendance in court and that the defendant qualifies for this alternative. It bears noting that the list of offenses for which electronic monitoring is available is not coextensive with that for which monetary bail is authorized. Rather, it includes all felonies, as well as misdemeanors of domestic violence pursuant to article 130 of the Penal Law, and any misdemeanor where the defendant was also convicted of a violent felony within the past five years (CPL 500.10 [21]).{**75 Misc 3d at 445}

On multiple occasions, the Appellate Division, First and Second Departments, have ordered that the defendant both post bail and undergo electronic monitoring (see e.g. State of New York ex rel. Greenwald v Schriro, 96 AD3d 523 [1st Dept 2012]; People ex rel. Unger v Schiraldi, 198 AD3d 911 [2d Dept 2021]; People ex rel. Aidala v Mills, 197 AD3d 1272 [2d Dept 2021]; People ex rel. Padilla v Schiraldi, 196 AD3d 540 [2d Dept 2021]). In another instance, the Second Department has permitted electronic monitoring only if defendant posted adequate insurance company bond (see e.g. People ex rel. Campbell v Brann, 189 AD3d 1525 [2d Dept 2020]). By contrast, in People ex rel. Amsel v Schiraldi, the Appellate Division ordered electronic monitoring without first requiring the posting of bail (197 AD3d 1136 [2d Dept 2021]). Given the spectrum of permissible securing orders before and after the eligibility determination is made, it is clear that the court may set release, set bail, or remand the defendant until the sheriff has confirmed that individual's suitability for an ankle monitor.

When ordering electronic monitoring, the court may also impose geographic (such as home detention) and temporal restrictions (such as a curfew) so long as it is "unobtrusive to the greatest extent practicable" (CPL 510.40 [4] [b]). Within New York City, it is the New York City Sheriff's Office (the Sheriff), a subdivision of the New York City Department of Finance, that oversees the electronic monitoring program.^[FN1] When electronic monitoring is ordered, the Sheriff monitors for compliance and, depending on the type of violation, responds accordingly. False alerts are documented. True alerts that are not risks of immediate flight are documented and, where appropriate, the court is also notified. Risks of immediate flight trigger active pursuit of the defendant by law enforcement.

A defendant's violation of curfew is, without more, not treated as a risk of immediate flight. Impermissibly leaving{**75 Misc 3d at 446} the state, entering a port of entry (where forbidden by the securing order), or breaching home detention, however, is treated as such a risk. When restricted to New York City, a defendant's departure from the City is assessed by the Sheriff and, if needed, the court. Similarly, a tamper alert is treated as a risk of immediate flight. A low battery (20%) warning leads to a phone call to defendant seeking immediate charging, and a very low battery (5%) is treated like tampering. Finally, the period of electronic monitoring for a defendant shall not exceed 60 days from the initial issuance date, but the court may renew such securing order upon a de novo review (see CPL 510.40 [4] [d]).

One reason why electronic monitoring is not commonly ordered is that specific eligibility criteria must be met.^[FN2] First, if the defendant has open warrants or holds (i.e. an "I-card"), electronic monitoring is not available. Second, a "stable" address is necessary to allow the Sheriff to have a baseline location from which the defendant may only deviate as specified by the court. Third, the address where the defendant is staying must have sufficient power outlets to charge the ankle monitor and keep the base station plugged in. The defendant also must have a reliable phone number where he/she/they can be reached in case of a potential issue. Fourth, the defendant must have some level of technical proficiency to operate the ankle monitor.^[FN3]

In other words, only certain defendants will qualify for electronic monitoring, but those who are homeless, lack technical knowledge, or do not have access to a phone would not. While this leaves a somewhat narrow category of defendants who may be eligible, this form of securing order may nevertheless be appropriate for defendants who pose flight risks such that no nonmonetary condition would be sufficient but whose lack of income renders any amount of monetary bail "tantamount to remand"—one of the grievances sought to be redressed through bail reform.{**75 Misc 3d at 447}

In the case at bar, the court finds that defendant represents a risk of flight to avoid prosecution such that neither ROR nor any single or combination of nonmonetary conditions are sufficient to ensure his return to court. Specifically, defendant is charged with criminal possession of a weapon in the second degree, a class C violent felony, after a previous conviction for criminal possession of a controlled substance in the third degree, a class B felony, for which he is serving five years' probation. There is no dispute that he faces mandatory jail time if convicted. Relatedly, the People point to the relative likelihood of conviction in this case as the firearm—allegedly displayed to his ex-wife while stating, "what are you going to do about it [sic] bitch"—was recovered at his apartment. Contrary to his counsel's assertion, defendant appears to have ties outside of New York City, as his prior arrest and resulting conviction occurred beyond this court's jurisdiction in Dutchess County.

On the other hand, defendant has no warrant history and no record of noncompliance [*4]with probation thus far. Defendant also challenged the veracity of his ex-wife's assertion that he displayed a gun. Lastly, this 30-year-old defendant's life and financial circumstances suggest the kind of stability that make him a suitable candidate for electronic monitoring. Defendant has a cell phone and lives with his mother—who came to his arraignment—at an apartment that he has resided in for over 10 years. Other than monthly disability checks, he has no source of income. Lastly, and importantly, defendant presents with an external physical disability that would certainly make incarceration a hardship. Based on this court's individualized determination, electronic monitoring is the least restrictive condition that would reasonably ensure his return to court and the geographic and temporal restrictions delineated below are the least obtrusive under the circumstances. Because there is no alternative nonmonetary condition that will suffice to ensure defendant's return while he awaits screening for electronic monitoring, monetary bail is set in the alternative. Accordingly, it is ordered that defendant shall:

1. wear an electronic monitoring bracelet, with monitoring services to be provided by the Sheriff of the City of New York, and any violations of the conditions set forth herein relating to the electronic monitoring shall be reported by the electronic monitoring service provider to the Office of the District Attorney of New York County, and further proceedings pursuant to CPL 510.40 (4) (d), if any, shall be conducted by the Criminal Court, New York County; and{**75 Misc 3d at 448}

2. remain confined to his residence, except for visits to his attorney, his doctors, his place of worship, or court, and must travel directly from his home to his attorney, his doctors, his place of worship, or court, and directly back to his home, when conducting those visits; and

3. surrender any passports he may have to the Office of the District Attorney of New York County, or, if he does not possess a passport, he shall provide to the Office of the District Attorney of New York County an affidavit, in a form approved by the Office of the District Attorney of New York County, in which he attests that he does not possess a passport, and shall not apply for any new or replacement passports; and

4. provide to the Office of the District Attorney of New York County an affidavit, in a form approved by the Office of the District Attorney of New York County, in which he attests that if he leaves the jurisdiction he agrees to waive the right to oppose extradition from any foreign jurisdiction; and it is further ordered that if defendant is found ineligible for electronic monitoring by the Sheriff, monetary bail is set in the alternative in the sum of $15,000 posted in the form of an insurance company bail bond, the sum of $25,000 posted in the form of a partially secured bond with the requirement of 10% down, or the sum of $10,000 deposited as cash bail.