A judge in Cohoes City Court in Albany County ruled Monday that New York's bail reform law, which has been effect for just over a month, is unconstitutional as applied to a misdemeanor case in which the defendant had a history of failing to appear.

Judge Thomas Marcelle objected to the bail reform law on separation-of-powers grounds, writing that the state legislature should not have interfered with judges' ability to control how and when a defendant appears in court.

"In short, a judge unable to make judgments is not a judge," he wrote.

Marcelle's decision ruled the new law was unconstitutional "as applied to this case." But the sweeping rationale may mean the decision will have influence beyond the case before the Cohoes judge.

The bail reform law, which was passed in April, was a subject of controversy even before it took effect Jan. 1. Calls for changes to the law have continued in recent weeks, with Gov. Andrew Cuomo acknowledging the law is a "work in progress."

Among other changes, the law ended money bail for misdemeanor cases, with limited exceptions for domestic violence and sex offense cases.

The defendant who appeared before Marcelle, Jonathan Johnston, has been charged with a pair of misdemeanors related to driving without a license.

Marcelle found that the bail reform law was motivated by the "quite real" concern that cash bail unfairly penalizes poor defendants, but he suggested legislators "impermissibly trespassed upon the judicial power" by categorically prohibiting bail in certain cases.

Johnston's attorney, Jessica Gorman, said the constitutionality of the bail reform law was not raised by either party but by Marcelle himself.

"That's improper," she said.

Among other issues, there was no discussion in court about whether Johnston's prior failures to appear were intentional, Gorman said. According to the bail reform law, judges may consider a defendant's "risk of flight" as they determine whether the defendant should be released with a promise to appear or with other non-monetary conditions.

Prosecutors did not take a position on Johnston's conditions for release, according to an Albany County District Attorney's Office spokeswoman.

Because Gorman and her co-counsel Stephen Herrick did not raise the issue, she said they do not expect to carry it forward for an appeal. Instead, she said, they may ask an Albany County Court judge to exonerate Johnston's bail.

At a hearing Wednesday designed to determine Johnston's bail, the court instead agreed to stay the bail, Gorman said.

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