DECISION AND ORDER The defendant has filed a motion, dated July 29, 2019, requesting a plenary hearing on the issue of the revocation of the defendant’s bail pursuant to CPL 530.10. The Court denied the defendant’s motion orally, in court, on July 29, 2019. This written decision constitutes the decision and order of the Court. PROCEDURAL POSTURE The defendant was arraigned on Queens County Indictment Number 964/2016 on June 11, 2019 in Part K-15. The defendant was charged with one count of Criminal Contempt in the First Degree under Penal Law section 215.51(b)(v). The defendant requested a motion schedule, which was set, and the matter was adjourned to July 29, 2019 for decision on motion. On July 29, 2019, the People moved this Court, pursuant to CPL 530.12(11), to revoke the defendant’s bail as a remedy for at least eighteen deliberate violations of a full order of protection issued in favor of the complainant and against the defendant. The defendant’s attorney asked for a second-call of the matter so that she could prepare her argument. This Court offered the defendant’s attorney the opportunity to adjourn the matter to another date so that she could adequately prepare to argue the motion, but counsel opted to have the matter second-called in the afternoon. When the case was second-called, the defendant’s attorney handed up a written motion, requesting a full plenary contempt hearing rather than just an opportunity to be heard. The Court then heard the defendant and the People as to the merits of the People’s motion. The People played four recorded phone calls from July of 2019, made by the defendant while he was at Rikers Island, to the complainant, for whom an order of protection had been issued, during which he threatened the complainant. This Court’s oral decision noted that CPL 530.12 does not provide for “a hearing with witnesses called.” Instead, the Court must be “satisfied by competent proof that the defendant has willfully failed to obey” the order of protection. Based upon the competent proof produced at the hearing, the Court granted the People’s motion and remanded the defendant. The Court stated “I am going to remand [the defendant] without bail. And the reason I’m doing that is because you have failed to obey the conditions of your release on bail, which is to obey the order of protection.” LEGAL ANALYSIS Criminal Procedure Law section 530.12 is entitled “Protection for Victims of Family Offenses.” When this section was enacted, the New York State Legislature wrote “[t]he Legislature hereby finds and declares that there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence…We also know that this violence results in tremendous costs to our social services, legal, medical, and criminal justice systems, as they are all confronted with its tragic aftermath.” (Laws 1994, ch 222, §§1, 2). Included in that “tragic aftermath”, of course, is continued contact and harassment of the victim by the abuser. The Legislature continued that it “further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option. Notwithstanding the evolution of the law of domestic violence in New York, death and serious physical injury by and between family members continues unabated. The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws.” (Id.). The Legislature concluded by stating “it is necessary to strengthen materially New York’s statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for New York’s families consistent with the interests of fairness and substantial justice.” (Id. [emphasis added]). Where a defendant repeatedly violates a mandate of the court, an order of protection meant to protect the victim of domestic violence, there must be a remedy. As noted by the Legislature, one such remedy which is consistent with fairness and justice, is a bail hearing pursuant to CPL 530.12; such a hearing was conducted in this case. A bail determination is most often a discretionary matter, informed by certain criteria. (CPL 510.30). There is no constitutional right to bail. (see US v. Salerno, 481 US 739 [1987]; People ex rel. Fraser v. Britt, 289 NY 614 [1942]). The standards that apply at any bail hearing, to prevent arbitrary exercise of discretion, are set forth in CPL 510.30(2) and are the standards used at every arraignment. The Court must consider, in pertinent part, the “kind and degree of control or restriction that is necessary to secure his court appearance” (CPL 510.30[2][a]) and must consider, on the basis of available information “character, reputation, habits” (CPL 510.30[2][a][i]) and “his previous record in responding to court appearances when required.” (CPL 510.30[2][a][vi]). In 2008, the Legislature added CPL 530.12, specifically entitled Protection for victims of family offenses, to ensure that the Court “consider the issuance of an order of protection in conjunction with a securing order (Peter Preiser, Practice Commentary, McKinney’s Cons Laws of NY, CPL 530.12 [Emphasis added]). In family offense cases, a court also has other discretionary authority, such as to require the surrender of firearms, and to declare the defendant ineligible for a license to carry a firearm. Most important, the Legislature granted the Court the discretion to “revoke an order of recognizance or bail and commit the defendant to custody…” upon willful violation of an order of protection pending final disposition. (Id. at 100). As noted by the Commentator, “[t]his constitutes an exception to the general requirement that a court must order recognizance or bail where a defendant is charged with an offense below felony grade.” (Id.). Additionally, in 2012, the Legislature added additional factors to be considered in setting bail in family offense cases: a) any violation of an order of protection between members of the same family or household and b) the defendant’s history or use or possession of a firearm. (CPL 510.30[2][a][vii][a] and [b]). There appears to be only one case under New York law which deals with the procedure at a hearing pursuant to CPL 530.12. In People v. Stevens, the City Court of Oswego County held that a hearing pursuant to CPL 530.12 is “not a trial on the merits to determine the defendant’s guilt or innocence.” (133 Misc 2d 407 [City Ct, Oswego Cty 1986][Klinger, J.]). That court further held that the “remedies set forth under subdivision (11)(a) through (d) make it clear that the hearing is essentially one concerning bail — either its issuance or denial.” (Id. at 410). The court held that “it seems clear from a reading of the remainder of the Criminal Procedure Law that full-fledged hearings and proof for which a prosecutor must dot every “i” and cross every “t”…are in no way required for hearings concerning bail.” (Id.). The Criminal Procedure Law explicitly notes when plenary hearings are mandated and, in the absence of such an explicit requirement under CPL 530.12 or 510.30, this Court is satisfied that here, where the defendant was provided notice, was given an opportunity to be heard, and where the Court has been provided competent proof of a willful violation of the Order of Protection issued in conjunction with the securing order, the defendant has been provided due process. As noted by the Third Department, “there is no constitutional or statutory right to confront an accuser prior to trial”, and there certainly is no right of confrontation or cross-examination at a bail hearing. (People v. Hayday, 144 AD2d 207 [3rd Dept 1988]). Since, in a CPL 530.12 bail hearing, the People have the burden of convincing the Court, by competent proof, that the defendant has willfully violated an order of protection, the remedy for such a violation is the revocation of the defendant’s bail. Nevertheless, the defendant argues that Judiciary Law Section 751(1) requires that, for a hearing for contempt committed outside the court’s presence, the defendant must be given notice of the accusation and given “reasonable time to make a defense” and argues that neither were done here. The defense argument is inapposite, however, since the Court did not conduct a contempt hearing under the Judiciary Law, nor has the Court held this defendant in contempt. (see generally People v. Morales, 15 Misc 3d 695 [Sup Ct, Kings Cty 2007][Leventhal, J.]). The Court revoked the defendant’s bail pursuant to CPL 530.12, an entirely different type of proceeding. Judiciary Law section 750 provides that a court may punish a person for criminal contempt when he engages in any number of enumerated acts, including but not limited to “willful disobedience to its lawful mandate.” (Judiciary Law 750[A][3]). Judiciary Law section 751 provides that any term of imprisonment for a finding of contempt for a violation of an order of protection issued under Criminal Procedure Law section 530.12 cannot exceed ninety days. Again, while this certainly was an option the Court could have considered in light of the defendant’s repeated violations of the order of protection, the People moved for bail revocation under CPL 530.12, which was completely proper. The defendant also argues that a hearing should have been held pursuant to the framework delineated in Criminal Procedure Law 530.60(2)(a), which was enacted after CPL 530.12(11). However, CPL 530.60(2)(a) is clearly inapplicable in the instant case. The plain language of the statute itself makes clear that a court may revoke bail if a defendant “committed one or more specified class A or violent felony offenses or intimidated a victim or witness in violation of sections 215.15, 215.16, or 215.17 of the penal law while at liberty.” (CPL 530.60[2][a]). This is yet another option available for a defendant who is out on bail but rearrested for a serious crime. The statute specifies that in these circumstances, the court “must hold a hearing and shall receive any relevant, admissible evidence” (Id.), language not contained in CPL 530.12. Furthermore, it is not alleged in this case that the defendant committed a class A felony or a violent felony. And, while it could be argued that the defendant had attempted to tamper with a witness, the People have made no such allegation and have not charged the defendant as such. Accordingly, the Court finds that the framework of CPL 530.60 is not applicable to the revocation of bail pursuant to CPL 530.12, which statute is specifically geared for immediate deterrence in family offense cases. It is clear then, that there are several remedies for repeated violations of an order of protection. The People can move for a bail review hearing pursuant to CPL 530.60 or a contempt hearing pursuant to Judiciary Law section 750, or the defendant could face new charges, either by re-arrest or a new indictment. Here, the People properly made an application for the revocation of the defendant’s bail pursuant to Criminal Procedure Law 530.12(11) in this family offense case, and not for any of the other procedures challenged by the defense. The Court adhered to the parameters of CPL 530.12(11), which do not require a plenary hearing. “As long as a meaningful opportunity to be heard is afforded due process is satisfied. Such does not equate with a full evidentiary hearing.” (see Weiner v. State of NY, 27 Misc 3d 1203(A) [Sup Ct, Suffolk Cty 2010]). Indeed there is no constitutional or statutory right to confront an accuser before trial. (Halladay, supra at 521). Clearly the defendant had been afforded due process and was given an opportunity to be heard, as the Criminal Procedure Law requires at a bail hearing. (CPL 510.20; CPL 510.30; CPL 530.12; see People v. Stevens, supra). Accordingly, the defendant’s motion for a plenary hearing concerning the revocation of his bail status is denied. This constitutes the decision and order of the Court. Dated: Queens, New York September 6, 2019
