Supreme Court, Monroe County, May 4, 2023

John Bradley for petitioner.

Petitioner commenced the instant proceeding pursuant to CPLR article 78 in the Appellate Division, Fourth Department seeking a writ of habeas corpus on the ground that his pretrial detention for a non-qualifying felony offense was prohibited by Criminal Procedure Law §§ 510.10 and 530.20—components of the 2019 amendments to the bail laws (bail reform), which, in relevant part, enumerate the offenses for which bail and remand are permissible securing orders. However, shortly after the filing of the petition, petitioner was released from custody, and thus the petition was rendered moot. The Appellate Division, Fourth Department, duly observing the exception to the mootness doctrine and the important nature of this issue, unanimously converted this matter to a declaratory judgment action, and transferred it to Supreme Court, Monroe County for further proceedings. (See generally People ex rel. Bradley v Baxter, 203 AD3d 1576 [4th Dept 2022].)

The petition is unopposed inasmuch as the Attorney General for the State of New York, the District Attorney of Monroe County and the Sheriff of Monroe County have all stipulated that they do not have standing, and they further decline to oppose the merits of the instant petition by way of amicus brief. Now, upon due consideration of the arguments proffered by petitioner, the following constitutes the decision and order of the court.

The genesis of the instant petition arises from petitioner's pretrial detention in Rochester City Court following his arraignment on a litany of non-qualifying offenses. To wit, petitioner was arraigned on five infractions and two misdemeanor offenses under the Vehicle and Traffic Law, criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a [*2]misdemeanor, aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [i]), a class E felony, and driving while intoxicated after having been previously convicted of two{**79 Misc 3d at 990} designated offenses (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [ii]), a class D felony. According to his DCJS (Division of Criminal Justice Services) report, petitioner had four prior felony convictions, all for DWI offenses. The court, relying upon a finding that petitioner had two or more prior felony convictions, remanded petitioner to the custody of the Monroe County Sheriff (see generally CPL 530.20 [2] [a]). The instant petition followed.

The controversy before this court arises from the impact of bail reform on the existing bail laws. Prior to the enactment of bail reform, CPL 530.20 (2) (a) prohibited a city, town, or village court (collectively lower courts) from ordering recognizance or bail for a defendant charged with any felony offense if they had two or more prior felony convictions (see generally CPL 530.20 [2] [a] ["a (lower) court may not order recognizance or bail when . . . the defendant has two previous felony convictions"]). This "double predicate rule" eliminates a lower court's discretion relative to bail consideration for a felony offense based solely upon a defendant's criminal history to the extent it is comprised of two or more prior felony convictions. In other words, a lower criminal court may not consider the age of the prior felony convictions, their classifications, or seriousness of the offenses. Likewise, it may not consider the classification or seriousness of the felony for which a defendant stands accused. A lower court's analysis, with respect to a defendant accused of a felony who has two or more prior felony convictions, is thus limited to, and controlled by, simply the number of an accused's prior felony convictions.

The advent of bail reform, which did not eradicate or modify CPL 530.20 (2) (a), dramatically changed an arraigning court's analysis pertaining to bail determinations. Specifically, CPL 510.10 ("Securing order; when required alternatives available; standard to be applied"), the primary source of all criminal courts' authority to impose securing order conditions, and a principal component of bail reform, was amended to set forth both the procedures and substantive analyses an arraigning court is required to undertake in rendering a determination for a securing order. The statute establishes a presumption in favor of release on recognizance, and it further sets forth the prerequisites which must be satisfied for bail or remand to be ordered. To be certain, a court is mandated to order the release of a principal unless and until certain conditions are established. Additionally, and of paramount importance to this{**79 Misc 3d at 991} court's analysis, the statute enumerates offenses, to the exclusion of others, for which a court may impose bail or order remand—a rule colloquially known as the "qualifying offense rule." Stated another way, if an offense is not indicated within subdivision (4) of CPL 510.10, a court is prohibited from ordering bail or remand.

CPL 530.20 ("Securing order by local criminal court when action is pending therein"), which specifically governs the issuance of securing orders by local courts, was also amended by bail reform to include the qualifying offense rule (see generally CPL 530.20 [1] [b]). The Legislature, reiterating precisely the same schema as set forth in CPL 510.10, established the presumption favoring a principal's release on recognizance and an instruction to the court to impose the "least restrictive . . . conditions that will reasonably assure the principal's return to court" and indicated a court's authority to fix bail or commit a principal pending trial "where authorized" (CPL 530.20 [1] [a]; [2]). Furthermore, the statute explicitly authorizes remand for a qualifying offense which is also a felony (see CPL 530.20 [1] [b]).

In the main, petitioner advocates for an interpretation of the double predicate rule (CPL 530.20 [2]) which applies only in circumstances wherein a defendant is charged with a [*3]qualifying offense as defined in CPL 510.10 (4) and 530.20 (1) (b). He contends that a plain reading of CPL 510.10 and 530.20 and, in particular, CPL 530.20 (2) (a), considered together, mandates a lower criminal court to issue a securing order releasing a defendant charged with a non-qualifying felony offense under nonmonetary conditions irrespective of the number of prior felony convictions. Petitioner avers that remand is only available if a "qualifying offense that is also a felony" is charged (see CPL 510.10 [4]; 530.20 [1] [b]). In furtherance of his argument, petitioner relies upon certain canons of statutory construction, arguing that the plain meaning of the bail schema and legislative intent is unambiguous in limiting a lower court's authority to set bail only when a defendant is charged with a qualifying offense. Further, petitioner argues that the bail reform amendments drastically altered the application of the rules pertaining to a lower court's authority to set bail for a defendant charged with a felony who also has two or more prior felony convictions. In the alternative, petitioner alleges that to the extent there is any statutory ambiguity with respect to the application of CPL 530.20 (2) (a), constitutional tenets of equal protection require resolution in his favor.{**79 Misc 3d at 992}

Bail reform tightly controls a court's discretion and curtails its ability to set nonmonetary bail for almost all misdemeanors and nonviolent felonies, yet permits monetary bail for most violent felony offenses. In sum, the threshold consideration under the qualifying offense rule is the instant offense for which a defendant stands accused. Specifically, CPL 510.10 et seq. states,

"[w]hen a principal, whose future court attendance at a criminal action or proceeding is or may be required, comes under the control of a court, such court shall, in accordance with this title, 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. In all such cases, except where another type of securing order is shown to be required by law, the court shall release the principal pending trial on the principal's own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court." (CPL 510.10 [1] [emphasis added].)

Additionally,

"[i]n cases other than as described in subdivision four of this section the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court." (CPL 510.10 [3] [emphasis added].)

Furthermore,

"[w]here the principal stands charged with a qualifying offense [enumerated below], the [*4]court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's{**79 Misc 3d at 993} own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff." (CPL 510.10 [4] [emphasis added].)

Likewise, the bail reform provisions governing criminal actions pending in local courts set forth the same framework:

"[i]n cases other than as described in paragraph (b) of this subdivision the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court" (CPL 530.20 [1] [a] [emphasis added]).

And,

"[w]here the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff" (CPL 530.20 [1] [b] [emphasis added]).

Finally,

"[w]hen the defendant is charged, by felony complaint, with a felony, the court may, in its discretion, order recognizance, release under non-monetary conditions, or, where authorized, bail or commit the defendant to the custody of the sheriff except as otherwise provided in subdivision one of this section or this subdivision" (CPL 530.20 [2] [emphasis added]).

In the instant case, the petition before the court underscores the necessity of resolving the apparent incongruity between{**79 Misc 3d at 994} the double predicate rule and the qualifying offense rule^[FN1] as their respective applications, considered in a vacuum, mandate opposite results. The double predicate rule requires a lower court's threshold consideration to be a defendant's criminal history while the qualifying offense rule requires it to be the instant offense for which a defendant stands accused. Petitioner, a principal with more than two prior felony convictions, must be remanded according to the double predicate rule; however, based on the nature of the charges before the lower court, the qualifying offense rule declares that bail and remand are unavailable securing orders. Simply stated, both rules cannot be imposed simultaneously. Yet, a careful reading of the text of the bail laws in their totality permits an interpretation of CPL 530.20 (2) (a) which reconciles what, at first blush, appears to be a cavernous divide between these competing rules. And, for the reasons which follow, this court finds that an analysis of the plain meaning of CPL 510.10 and 530.20, examined in conjunction with additional statutory interpretation aids{**79 Misc 3d at 995} and policy considerations, requires a construction of CPL 530.20 (2) (a) which limits its application to qualifying offenses as defined in CPL 530.20 (1) (b) and 510.10 (4).

"If language of [a] statute is plain and free from ambiguity, and expresses single, definite and sensible meaning, words cannot be interpolated, and court[s] ha[ve] no authority to add to [the] language of law" (see McKinney's Cons Laws of NY, Book 1, Statutes § 73, NY Annotations at 50, citing County of Putnam, N.Y. v State of New York, 17 Misc 2d 541 [Ct Cl 1959]). Applying this tenet of statutory construction, the court first turns to the plain meaning of CPL 510.10 and 530.20 and finds the language, as it applies to the totality of the bail schema, to be unambiguous and the meaning therein unequivocal. The plain language of CPL 510.10 ("Securing Order; when required; alternatives available; standard to be applied") requires a court's analysis to begin with the presumption of release on recognizance, as it commands the release of a principal pending trial, unless and until certain circumstances are established (see CPL 510.10 [1] ["(a) court shall . . . release the principal" (emphasis added)]; see also CPL 510.10 [3], [4]). Additional conditions for securing orders are allowed only upon a demonstration that the principal poses a flight risk; however, the court must select the least restrictive means so as to reasonably ensure a principal's appearance—yet another indicator of the Legislature's presumption favoring release. Furthermore, and of significant import, the Legislature has only permitted bail in circumstances wherein a principal is charged with a qualifying offense (see CPL 510.10 [4] ["Where the principal stands charged with a qualifying offense . . . the court . . . [*5]may . . . fix bail"]) and remand where an accused is charged with a qualifying offense which is a felony (see CPL 510.10 [4] ["where the defendant is charged with a qualifying offense which is a felony" (emphasis added)]).

The statutory framework is premised upon an analysis of the offense for which a defendant stands accused and an individualized evaluation of whether they pose a risk of flight, permitting more restrictive forms of securing orders for qualifying offenses and/or those who pose a risk of flight. However, the cornerstone of the schema is the Legislature's categorical approach distinguishing the securing orders available for qualifying and non-qualifying offenses. Whether an offense is qualifying in nature, as defined by CPL 510.10 (4), is the threshold question in securing order determinations.{**79 Misc 3d at 996}

CPL 530.20 ("Securing order by local criminal court when action is pending therein") is not to the contrary. Indeed, this section sets forth the same securing order analysis as its counterpart found in CPL 510.10, beginning with the presumption of release, the requirement of an individualized assessment of a principal's risk of flight, differentiating qualifying and non-qualifying offenses, and explicitly authorizing remand for a qualifying offense which is also a felony. In sum, the plain meaning of CPL 510.10 and 530.20, read individually and together, is abundantly clear that qualifying offenses as statutorily defined are the only offenses for which bail or remand may be ordered.

With these parameters in mind, the court now turns to the ambiguity presented within the double predicate rule as it pertains to the interpretation of "felony" (see generally CPL 530.20 [2] [a] ["When the defendant is charged . . . with a felony . . . (a lower court) may not order recognizance or bail when . . . the defendant has two previous felony convictions" (emphasis added)]). "The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature" (Riley v County of Broome, 95 NY2d 455, 463 [2000] [internal quotation marks and citations omitted]).

"There is, of course, no more persuasive evidence of the purpose of a statute than [its] words. Where, however, adherence to a statute's plain meaning produces an unreasonable result, plainly at variance with the policy of the legislation as a whole, the courts will follow[ ] that purpose, rather than the literal words. Moreover, where there are ambiguities in statutory language, courts look to the purpose of the legislation as well as the statutory context to resolve those ambiguities." (Matter of State of New York v Kerry K., 157 AD3d 172, 183 [2d Dept 2017] [internal quotation marks and citations omitted].)

"The court must interpret a statute as a symmetrical and coherent regulatory scheme, and must fit, if possible, all parts into a harmonious whole. As well, the court must construe statutes harmoniously and reconcile laws with other statutory provisions{**79 Misc 3d at 997} whenever possible, in order to give full effect to all the provisions of the subject legislation. In this regard, courts are obligated to avoid conflicting interpretations between statutes. Thus, when two statutes relating to the same subject appear to conflict, courts should interpret them, if possible, in a manner that will give effect to both, taking into consideration the underlying legislative intent." (97 NY Jur 2d, Statutes § 184 [citations omitted].)

As observed by the court in People v Shafer (74 Misc 3d 405 [Ulster County Ct 2021]),

"the Legislature did not hold public hearings on the matter and passed [bail reform] as part of a wide-ranging budget bill rather than as a standalone bill . . . [and] [c]onsequently, . . . the legislative history of its passage [renders it] . . . difficult . . . for courts to discern the intent of its [*6]drafters and to interpret its language" (Shafer, 74 Misc 3d at 413).

However, what is evident from the legislative history of bail reform is

"that the impetus for it was the realization that so many defendants, though presumed innocent, languish in jail for long periods of time awaiting trial . . . simply because they cannot afford to post bail in any amount or in the amount required by the court, thus discriminating in favor of those who have the financial resources" (id. at 415).

The Legislature, in its efforts to "reduce unnecessary pretrial incarceration and improve equity and fairness in the criminal justice system" (Senate Introducer's Mem in Support of 2019 NY Senate Bill S2101A),^[FN2] therefore restricted the offenses for which bail and remand may be ordered to the more serious ones, most of which are violent in nature. This is evident by the Legislature's repeated use of "qualifying offense" and the distinctive treatment thereof as compared to non-qualifying offenses.

It is for these reasons that use of the word "felony" within CPL 530.20 (2) (a) must be interpreted to mean "a qualifying {**79 Misc 3d at 998}offense which is a felony" inasmuch as it is the only meaning which comports with the entirety of the laws governing the issuance of securing orders. Such an interpretation is consistent with the Legislature's bail framework which begins with a presumption favoring a principal's release, the instruction to impose the least restrictive means to ensure a principal's return to court, an individual assessment of a principal's risk of flight and the explicit restriction to impose bail or remand only "where authorized" (see generally CPL 510.10 [1]; 530.20 [1]).^[FN3] It is likewise consistent with the Legislature's authorization to commit a principal to the custody of the sheriff when charged with a "qualifying offense which is a felony" (see generally CPL 510.10 [4]; 530.20 [1] [b]). Finally, a reading of "felony" constrained to qualifying offenses does not eradicate the double predicate rule; rather, it limits its application to circumstances involving those qualifying offenses, and ultimately, such an interpretation synthesizes the entirety of the laws governing the issuance of securing orders. It is the only interpretation which allows both rules to be given effect—a contrary reading would effectively vitiate the qualifying offense rule. Limiting the double predicate rule to qualifying offenses authorizes the remand of a defendant with a significant criminal history (two or more felony convictions) who stands accused of a more serious crime (a qualifying offense)—a rational result, and surely consistent with the Legislature's clear intent to permit bail and remand orders only for the more serious offenders and circumstances.

Furthermore, a plain reading of CPL 530.20 (2)—the provision setting forth available securing orders for defendants charged by way of felony complaint in a lower court—offers [*7]additional evidence of the Legislature's intent to incorporate the qualifying offense rule therein. Initially, the statute indicates that bail or remand may be ordered only "where authorized" (see CPL 530.20 [2]). The significance of this language is{**79 Misc 3d at 999} twofold: first, it unequivocally establishes that bail and remand are available securing orders in limited, and specified, circumstances; secondly, usage of "where authorized" mirrors the language of CPL 510.10 which sets forth the bail schema, and specifically, the qualifying offense rule (see generally CPL 510.10 [1] [a court may "where authorized, fix bail or commit the principal to the custody of the sheriff" (emphasis added)]). By impliedly referencing other statutory provisions governing the restrictions of securing orders, a statutory construction which encompasses the entirety of the bail schema is compelled—one which harmonizes the restrictions of the qualifying offense rule with the rules governing a lower court's authority to issue securing orders.

Additionally, and of significance, is the Legislature's use of restrictive language in so declaring that bail or remand may be ordered, "except as otherwise provided in subdivision one [setting forth the bail reform schema] or this subdivision [in part, the double predicate rule]" (see CPL 530.20 [2] [emphasis added]). This phraseology evinces a clear legislative intent: the securing order authority of a lower court must comport with the qualifying offense rule. Again, only one interpretation allows both rules to be given effect, and that requires the limitation of the double predicate rule.

Although there is an absence of proponents advancing an alternate interpretation, this court would be remiss were it not to remark on the illogical result of reading "felony" within the double predicate rule to include non-qualifying offenses (see generally People v Pena, 169 Misc 2d 75, 84 [Sup Ct, Bronx County 1996] [when statutory meaning is unclear and legislative intent is wanting, a court may be informed of the legislative intent by determining an interpretation bespeaks an absurd result in the case, and thus could not have been the intended meaning]). Consider, by way of example, the procedural undertaking following the remand of a defendant with two or more prior felony convictions who stands charged with a non-qualifying offense in lower court. Following arraignment, a prompt hearing must be scheduled in the lower court to determine the issue of whether there is sufficient evidence warranting a defendant's continued detention pending further action by a grand jury, i.e., the preliminary hearing (see generally{**79 Misc 3d at 1000} CPL art 180).^[FN4] A defendant may, however, prior to the conduction of the preliminary hearing, pursue a bail application in superior court (see generally CPL 530.30 [1] [a]). As it is undisputed that a defendant charged with a non-qualifying offense is entitled, as a matter of law, to release on recognizance or release with nonmonetary conditions (see generally CPL 510.10 [1] et seq.; 530.20 [1] et seq.), a superior court bail application will result in the release of the defendant and therefore vitiate the necessity of the preliminary hearing (see generally CPL 180.10 [2] [invocation of preliminary hearing process for an incarcerated defendant]).

As an aside, it is worth noting that prior to bail reform, a superior court had unfettered discretion, within statutory confines (see generally CPL 510.30 [2] [eff through Dec. 31, [*8]2019]), in considering a lower court's securing order and issuing its own. To be sure, a superior court, on application by a defendant, could have set bail for a remanded defendant, lessened the amount of bail set by a lower court, or released a defendant on their recognizance. Superior court, in an exercise of its scrutiny, had the ability to consider the totality of the circumstances, including, but not limited to, the crime for which a defendant stood accused and their criminal history (see generally CPL 510.30, supra). Under the former bail schema, complete and total review of securing orders was effectively delegated to the superior courts for defendants with more significant criminal histories charged with a felony offense. However, the implementation of bail reform has substantially diminished the discretion once held by superior court, reducing its ability to issue only one of two non-imprisonable securing orders for non-qualifying offenses. In other words, a superior court's review of a securing order for a non-qualifying offense mandates either release or release with nonmonetary conditions—never bail or remand.

Returning to this court's illustration, notwithstanding the disconcerting implications of incarcerating a defendant, for however brief a time, on a non-qualifying offense where release is mandatory, a remand order in lower court effectively creates an additional procedural step by requiring a defendant to pursue a bail application in superior court to obtain the relief{**79 Misc 3d at 1001} to which they are legally entitled (see generally CPL 530.30 [1] [a]). This step is duplicative inasmuch as the superior court's review of the securing order is limited to a determination of whether the charged offense is qualifying in nature—a determination readily ascertainable in lower court. This creates an unnecessary burden on the superior courts now tasked with scheduling and hearing bail applications, prosecutors and defense counsel who must appear and make respective arguments regardless of how straightforward the analysis may be, and the sheriff, who is charged with the custody of an accused for the period of time between remand in the lower court and release by a superior court.

This superfluous procedure resultant from a technical reading of the double predicate rule, in abstract, is belied by common sense, contrary to the principles of judicial and legal economy and incongruent with the remainder of the laws governing bail and respective processes. An interpretation of "felony" to include non-qualifying offenses would, in essence, hail form over substance by compelling a procedure which would not have a noticeable degree of impact on the outcome of a securing order determination. The net impact of a superior court bail application results in a distinction without a difference; however, the distinction lies in the taxation to the legal stakeholders forced to undergo an unnecessary process—a result certainly not intended by the Legislature.

The criminal courts of this state have long recognized the essential value of judicial economy—streamlining the legal process and minimizing duplicate expenditure of resources, and a reading of the double predicate rule limited to qualifying offenses furthers this legal maxim (see e.g. People v Ricardo B., 73 NY2d 228 [1989] [dual jury trial authorized in the interests of justice and judicial economy where proof against codefendants was the same less the defendants' inculpatory statements]; People v Paluska, 112 AD2d 598 [3d Dept 1985] [Appellate Division decided merits of action improperly brought as direct appeal instead of a 440 application in the interests of judicial economy]; People v Lubrano, 296 AD2d 326 [1st Dept 2002] [appeal held in abeyance, in the interests of judicial economy, following developments pertaining to newly discovered evidence]; People v Thacker, 156 AD3d 1482 [4th Dept 2017] [Appellate Division sua sponte corrected illegal sentence pursuant to interests of judicial economy]; People v Salaam, 187 AD2d 363 [1st Dept 1992], affd 83 NY2d 51 [1993] [joinder of defendants{**79 Misc 3d at 1002} was justified by judicial economy in light of the extent and complexity of [*9]evidence]).

Further exemplifying the absurdity of an interpretation of the double predicate rule which permits "felony" to encompass non-qualifying offenses is the disparate outcomes at the arraignment proceeding for precisely the same offenses in lower court as compared to superior court. Continuing with this court's example, under this statutory reading, the defendant with two or more prior felony convictions arraigned in lower court on a felony complaint and charged with a non-qualifying offense must be remanded into the custody of the sheriff. However, should that defendant be indicted on the same non-qualifying offense as alleged in the felony complaint, at the arraignment proceeding in superior court their release would be required by law. The inherent contradiction between the mandated remand of that defendant in lower court on a felony complaint (a charging instrument with limited evidentiary value) contrasted with their mandated release in superior court on an indictment (an instrument based upon presentment of competent evidence and a vote at a grand jury proceeding) is one that this court cannot reconcile so as to conclude that the Legislature intended "felony" to include non-qualifying offenses.

Of additional concern, this interpretation of the double predicate rule would inadvertently create a statutory exception to the qualifying offense rule which does not legislatively exist, and it would undermine the legislative intent of the greater statutory schema. Had the Legislature intended for the double predicate rule to function as an exception to the qualifying offense rule, it could have written restrictive language into the text. However, the absence thereof operates as evidence of the Legislature's intent not to treat the double predicate rule as an exception, but rather harmonize the entirety of the laws governing the issuance of securing orders.

On a final note, and in light of the foregoing, although this court need not decide petitioner's remaining contentions pertaining to equal protection (see generally New York Pub. Interest Research Group v Carey, 42 NY2d 527, 529-530 [1977] [a court must "not give advisory opinions" as the "giving of such opinions is not the exercise of the judicial function"]), the disparate treatment of similarly situated defendants based upon nothing more than the geographical location of the prosecuting jurisdiction must be emphasized as further evidence of{**79 Misc 3d at 1003} the illogic of interpreting the double predicate rule so as to encompass non-qualifying offenses. To illustrate this point, consider a defendant, who, if prosecuted in the New York City criminal court or in a district court, would undisputedly be entitled to recognizance or release with nonmonetary conditions for a non-qualifying offense (see generally CPL 510.10 [1]; 530.20 [1] [b] [enumerated qualifying offenses]) regardless of their felonious criminal history. Contrast this result with a defendant prosecuted in a city, town or village court where the double predicate rule would require a remand order for the same non-qualifying offense (see generally CPL 530.20 [2] [a] [unlike city, town and village courts, New York City criminal court and district courts are not subject to the confines of the double predicate rule]). Although statutorily based distinctions among local courts and their correlative procedures are not a novel concept, and prior to bail reform the double predicate rule resulted in similar disparities, when considered together with the other infirmities resultant from including non-qualifying offenses within the purview of the double predicate rule, it stands to reason that the Legislature could not have intended such an interpretation which invokes concerns over equities, consistency and reason. It is the totality of these incongruent and irrational results which lend credence to this court's conclusion that including non-qualifying offenses within the double predicate rule was not a result intended by the Legislature.[*10]

Based upon the foregoing, and for all the reasons set forth above, the double predicate rule must be interpreted to apply only to qualifying offenses. Nothing herein stated should be construed as a tacit endorsement or criticism of the objectives or implementation of bail reform, for it is the function of the courts to simply interpret and apply the laws. To the extent a court must legislate, it must not go beyond the small gaps left by the Legislature in accordance with what appears to be the legislative purpose. (See generally 16 CJS, Constitutional Law § 413.) Had the Legislature intended a contrary outcome, one which encompasses non-qualifying offenses within the double predicate rule, the statute should have been crafted so as to avoid any ambiguity in this vein.

Accordingly, it is hereby ordered that petitioner's petition, commenced pursuant to article 78 and converted to a declaratory{**79 Misc 3d at 1004} judgment action by the Appellate Division, Fourth Department, is granted; and it is further ordered and declared that CPL 530.20 (2) (a) shall apply only to qualifying offenses as enumerated in CPL 530.20 (1) (b) and 510.10 (4).

Any prayers for relief not specifically addressed herein are denied.

Footnote 1: Although not before this court, the instant controversy inadvertently highlights the consequences resultant from removing judicial discretion from securing order determinations. On one end of the spectrum, a lower court is required to remand a defendant with two or more prior felony convictions, no matter how far removed by the passage of time, who stands charged with a low-level, nonviolent felony offense, even when all the evidence before the court supports a conclusion that they are likely to return. On the other end, a defendant charged with a non-qualifying offense, regardless of the aggravating factors, with an extended criminal history falling short of rendering them a double predicate, is required to be released notwithstanding a mountain of evidence militating against a finding that they are likely to appear for future proceedings. The result is paradoxical inasmuch as the Legislature's attempt to create equity among similarly situated defendants has resulted in, at times, outcomes which do not fully take into account all the mitigating and aggravating circumstances of a particular case and defendant.

Discretion is a critical component of the judiciary. However, it is never wholly unfettered and undirected. There are a "thousand limitations—the product some of statute, some of precedent, some of vague tradition or of an immemorial technique—[which] encompass and hedge [courts]" (Benjamin N. Cardozo, The Growth of the Law at 60-61 [1924]). "[L]ike the hole in a doughnut, [discretion] does not exist except as an area left open by a surrounding belt of restriction" (Ronald Dworkin, Taking Rights Seriously at 31 [1978]).

Ironically, the double predicate rule and the qualifying offense rule bear the same mark and invoke similar concerns as they are both rules which remove discretion from a lower court's bail determination. Although this court need not opine in this regard, perhaps it is circumstances such as this which provide the strongest arguments for the restoration of discretion to the bench. A derivative irony is the onus placed on this court to exercise its discretion in its analysis of the absence thereof afforded to its brethren.

FFootnote 2: The court is acutely aware of the tangential relationship of Senate Bill S2101A to the 2019 bail reform amendments; however, in this court's estimation, it is nevertheless insightful as to discerning the intent of the Legislature and it further provides persuasive guidance in resolving the above-discussed statutory ambiguity.

Footnote 3: Recently, lawmakers have submitted several proposals to amend the current laws governing bail, including, but not limited to, the elimination of the "least restrictive means" standard, permitting courts the option of requiring mental health and substance abuse evaluations, allowing for a combination of release conditions and permitting more options a court may exercise should a defendant violate release conditions. Assuming, arguendo, the passage of the budget bill which includes these proposed changes, the net impact is minimal in discerning the Legislature's intent. Collectively, these amendments appear to return a degree of discretion to the judiciary while upholding the statutory design of presuming release and limiting bail and remand to the more serious offenses and offenders.

Footnote 4: For many town, village and justice courts with limited dockets, this often requires the addition of a calendar date and correlative expenditure of resources so as to ensure that the scheduling of a preliminary hearing comports with the time requirements explicated in CPL article 180.