BAIL DECISION These two consolidated Indictments came before the Court for an appearance on November 6, 2019, and the case was adjourned until January 8, 2020 for possible disposition. Defendant is currently being held on a combined bail for these consolidated Indictments totaling either a $300,000.00 insurance company bail bond, or $85,000.00 in cash. In 2019, the New York State Legislature enacted comprehensive bail reform legislation (Revised CPL §510 et seq.) (hereinafter the “Revised Bail Law”) that significantly alters the law and practice of bail in this state. This Revised Bail Law will take effect on January 1, 2020. As noted, defendant’s adjourned date falls one week after that date. For that reason, the Court conducted a bail hearing on November 6, 2019, with a view to resetting defendant’s bail in a manner that conforms with the Revised Bail Law. This case thus calls upon the Court to begin to work out in practice the meaning of the Revised Bail Law, as detailed below. I. THE CHARGES As noted, there are two Indictments in this case that have been consolidated for trial. Indictment 1821/2018 (hereinafter “the First Indictment”) contains seventy-five counts. Among these are two counts of Burglary in the First Degree (a violent felony) and roughly forty counts of various degrees of Criminal Contempt in violation of orders of protection growing out of an earlier domestic violence case. (As detailed below, all of these charges are “bailable” qualifying offenses under the revised bail statute.) In substance, the First Indictment alleges: (1) that on March 17, 2018 defendant entered the home of his former girlfriend Amanda Jacobs in violation of an order of protection, assaulted her, and stole a debit card from her; (2) that on May 22, 2018, June 22, 2018, and July 24, 2018 defendant again came to the complainant’s home in violation of an order of prorection; (3) that on July 23, 2018 defendant again violated an order of protection by coming to the complainant’s home and stealing another debit card; (4) that on July 30, 2018, defendant again entered the complainant’s home in violation of an order of protection, stole her purse, and assaulted a police officer; and (5) that on August 15, 2018 at 2:00 AM and again at 8:00 AM, defendant entered the complainant Ms. Jacobs’ home, stole property, assaulted and choked Ms. Jacobs, and resisted a lawful arrest. Indictment 2683/2018 (hereinafter “the Second Indictment”) concerns crimes allegedly committed by defendant against Ms. Jacobs shortly after he was released on bail during the pendency of the First Indictment. The Second Indictment contains eighty-one counts, including the qualifying offenses of Burglary in the First Degree, Robbery in the Second Degree, and many, many counts of Criminal Contempt in various degrees. This string of alleged crimes culminated on November 20 and 29, 2018. It is alleged that on November 20, 2018 defendant entered the complainant’s home through her window via the fire escape, and that, when defendant was discovered, he roughed up the complainant, stole her telephone, and fled. (According to the District Attorney’s presentation at the bail hearing, much of this incident was captured on surveillance video.) It is also alleged that on November 29, 2018, defendant again appeared at the complainant Ms. Jacob’s window and tried to kick it in. In addition to the foregoing, at the November 6 bail hearing the prosecutor represented that since defendant was incarcerated on the Second Indictment nearly a year ago, defendant has made hundreds of telephone calls to the complainant from jail in violation of orders of protection issued in this case; these calls were recorded by the New York City Department of Correction. Those calls continue to this day; moreover, in other recorded jail calls, defendant can be heard making arrangements with his brother to get the complainant a new telephone. (Defendant wanted the complainant to have a telephone number that was not known to the District Attorney’s Office.) Each of these calls provides the basis for potential additional charges of Criminal Contempt and Tampering with a Witness. II. DEFENDANT’S HISTORY Prior to these cases, defendant has no significant criminal history. His Criminal Justice Agency (hereinafter “CJA”) interview report indicates that at the time of his arrest he was unemployed and homeless. He qualifies for representation by the Bronx Defenders, an indigent defense organization. He appears to have no financial resources of any kind. At the bail hearing, defense counsel represented that at the time of his alleged crimes defendant was in the throes of severe drug addiction, but that he has since given up drugs while incarcerated and has flourished in several prison programs. (The prosecutor pointed out that, notwithstanding these positive developments, defendant continues to call the complainant from jail in flagrant violation of the many orders of protections that have been issued in her favor.) III. THE REVISED BAIL LAW Defendant’s bail was set under existing law. In order to reset bail in this case in a manner that complies with the Revised Bail Law, it is necessary to look at the Revised Bail Law and explore the degree to which the revised statute makes a substantive change to the manner in which a court should set bail, and the degree to which the law remains the same as before. The self-evident overarching purpose of the Revised Bail Law is to greatly reduce the number of defendants held in jail pending trial, while still assuring that defendants who are released pending trial will appear when required in court. Qualifying Offenses That purpose is achieved chiefly by eliminating monetary bail for a broad swath of crimes. The revised statute provides that monetary bail may be required only for a fairly limited set of “qualifying offenses” — chiefly violent felonies, felony sex offenses, most Class A felonies, and criminal contempt in domestic violence cases.1 (This case involves multiple contempt charges for violating orders of protection in domestic violence cases, and is therefore “bailable” under the revised statute.) Conversely, most crimes — including almost all misdemeanors, almost all drug crimes, and most felonies — are not “qualifying offenses” under the revised statute, so that defendants charged with these “non-qualifying” offenses cannot be held on monetary bail once the revised statute takes effect. This provision of the Revised Bail Law is certain to dramatically reduce the number of people being held in jail pending trial. By way of illustration, a recent study indicates that only ten percent of cases arraigned in New York City in 2018 included a qualifying offense that would be eligible for monetary bail under the Revised Bail Law. Bail Criteria The Revised Bail Law contains two key provisions concerning the criteria a court must use when deciding whether to require bail and, if so, in what amount. The first is Revised CPL §510.10, which requires as a general matter that when fixing monetary bail or imposing non-monetary conditions of release, a court must select the “least restrictive alternative” that will reasonably assure a defendant’s return to court. The second is Revised CPL §510.30, which enumerates specific factors that a court must consider when evaluating bail. Least Restrictive Alternative Revised CPL §510.10(1) provides: When 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.2 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. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing. Thus, §510.10(1) of the revised statute first provides as a general matter that the court must release a criminal defendant on his own recognizance pending trial unless it is demonstrated that the particular defendant “poses a risk of flight to avoid prosecution.” If such a finding is made, then the court is required to select “the least restrictive alternative and condition or conditions that will reasonably assure” the defendant’s return to court. The court must also explain its bail decision “on the record or in writing.” (This Decision is intended to satisfy the requirement of a writing.) Least Restrictive Alternative Merely Codifies Constitutional Rule Forbidding Excessive Bail Upon analysis, the “least restrictive alternative” language of Revised CPL §510.10(1) does not work a major change to present law. That is so because the Eighth Amendment to the United States Constitution already provides that “excessive bail” shall not be required. So too does Article 1, §5 of the New York State Constitution. By definition, bail (in any amount) for a defendant who poses no risk of flight is excessive. Similarly — setting aside for the moment the concept of “preventive detention” (which is not authorized under New York law) — bail that is more restrictive than is necessary in order to assure a defendant’s return to court is by definition excessive. See Stack v. Boyle, 342 US 1 (1951); see also People ex rel Klein v. Kruger, 25 NY2d 497 (1969). Thus, in a sense — by limiting bail to those who pose a risk of flight, and by requiring a court to impose the “least restrictive” form of bail — the Revised CPL §510.10(1) does little more than codify and restate a fundamental constitutional command that has been part of our law since the founding of the American republic: namely, that excessive bail shall not be required. Accordingly, it appears that the Revised CPL §510.10(1) works no fundamental change to New York law; but it does serve the important purpose of re-focusing the courts on a constitutional principle that has too often been ignored in practice. Specific Bail Factors Revised CPL §510.30(1) provides: With respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal’s return to court, including: (a) The principal’s activities and history; (b) If the principal is a defendant, the charges facing the principal; (c) The principal’s criminal conviction record if any; (d) The principal’s record of previous adjudication as a juvenile delinquent, as retained pursuant to Section 354.1 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; (e) The principal’s previous record with respect to flight to avoid criminal prosecution; (f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal’s individual financial circumstances, and, in cases where bail is authorized, the principal’s ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond; (g) Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors: (i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and (ii) the principal’s history of use or possession of a firearm; and (h) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal. The Revised Bail Law thus provides that when selecting the least restrictive form of bail, the court must “on the basis of the available information, consider and take into account information about the principal that is relevant to the principal’s return to court, including…” the long list of specific bail factors that follows. Revised CPL §530.10(1)(a) through (h) (emphasis added). Of particular importance in this case, one of those factors is: “any violation by the principal of an order of protection issued by any court for the protection of the same family or household as that term is defined in [CPL §530.11]….” Revised CPL §510.30(1)(g)(i). As detailed below, the Revised Bail Law makes it clear that the Court must consider all of the specific bail factors listed; but the statute is not at all clear as to whether the list of bail factors set out in the revised statute is intended to be exclusive, or instead merely illustrative. Bail Factors and Ambiguity in the Revised Bail Law The juxtaposition of the ordinarily straightforward terms “relevant” and “including” in Revised CPL §510.30(1) creates a great deal of uncertainty. On the one hand, the statute’s directive that the court consider — without any express limitation — information that is “relevant” to the defendant’s return to court certainly appears to be a broad and elastic “catch-all” provision that permits the court to consider any factor the court deems relevant to the question whether the defendant is likely to return to court. Yet, on the other hand, the use of the word “including” in Revised CPL §510.30(1)(a) makes the meaning of the Revised Bail Law unclear. Is the list of specific bail factors that follows the word “including” in the Revised Bail Law intended to be merely illustrative, so that a court may also consider other unlisted factors that are relevant to the likelihood of the defendant’s returning to court? This seems probable. However, the revised statute would be much clearer if it had used language such as “including, but not limited to” the enumerated specific bail factors. Is this list of specific bail factors in the Revised Bail Law instead intended to be exclusive? That is also possible. But if that is the statute’s intended meaning, then the statute should have used language clearly indicating that the court can consider “only the following factors,” or the like. Thus the use of the word “including” in the Revised Bail Law renders the revised statute ambiguous in that it is unclear whether or not the list of specific bail factors set out in the revised statute is intended to be exclusive. The list of specific bail factors enumerated in the Revised Bail Law then compounds that ambiguity, in that the Revised Bail Law at the same time: (a) includes some bail factors also present in the old statute; (b) adds some factors not present in the old statute; and (c) deletes some factors present in the old statute. The import of these changes to the list of bail criteria included in the revised statute — taken together with the Revised Bail Law’s “catch-all” provision directing a court to consider, without limitation, all information “relevant” to the defendant’s return — is very puzzling. Obviously, those factors that have been carried over from the old to the revised bail statute do not work any change in the law. Similarly, the Revised Bail Law’s requirement that some additional bail factors must be considered does not present any great analytical difficulty. What is problematic, however, are those bail factors that were included in the old statute but are now deleted in the Revised Bail Law. What does their deletion signify? Is a court now forbidden to consider those deleted factors? Or are the deleted factors from the old statute now merely subsumed within the Revised Bail Law’s catch-all provision, or within other language in the Revised Bail Law? See Donnino, Supplementary Practice Commentary, Revised CPL §500.10, at “Criteria for Release and Determination” (“The legislation did not expressly prohibit a court from considering any of those criteria if a court found them ‘relevant,’ albeit their deletion implies by negative inference that a court should not consider them unless one or more of them is included in the remaining criteria”). This question is an important one because among the deleted specific bail factors that appear in the old law but that are absent in the Revised Bail Law are factors that have traditionally been crucial considerations in fixing appropriate bail, including: the defendant’s character, mental condition, employment and family ties; the weight of the evidence against the defendant and the probability of conviction; and the sentence that may be imposed upon conviction. See Old CPL §510.30(2)(a). Court May Consider Unenumerated Bail Factors Does the Revised Bail Law forbid consideration of these deleted factors? Although the revised statute is less than clear, this Court believes that the answer must be no, based on the purpose and very structure of the Revised Bail Law. Why? As noted, the Revised Bail Law’s primary directive is that the court must select the least restrictive alternative that will “reasonably assure the principal’s return to court” (Revised CPL §510.10). It seems almost self-evident that when assessing what kind of monetary bail or non-monetary conditions of release will “reasonably assure” a defendant’s “return to court,” a court must weigh and balance all those considerations that might impel a defendant to return to court against all those considerations that might impel a defendant to absent himself from court. Yet the list of specific bail factors set out in the Revised CPL §§510.30(1)(a) through (h) is plainly not an exhaustive list of all such considerations. For example, the revised statute (unlike its predecessor) does not include as bail factors the defendant’s employment status and family ties. See Old CPL §§510.30(2)(a)(ii) and (iii) (in setting bail the court must consider defendant’s “employment” and “family ties and length of residence in the community”). It has, however, long been a fundamental tenet of bail practice in New York that a defendant with strong roots in the community has a far greater incentive to return to court and thus requires less bail; that is the reason why for the last half century or so the court system has routinely assessed every criminal defendant’s community ties through a Criminal Justice Agency interview as an aid to setting appropriate bail. See Vera Institute, “A Short History of Vera’s Work on the Judicial Process” (June, 2003) at pp. 2-5. It makes no sense to suppose that a revised statute that was designed to reduce pre-trial incarceration would deprive defendants of this traditional argument in favor of release or low bail. Similarly, the Revised Bail Law (unlike the old) does not include as a bail factor the likelihood of conviction, nor the sentence that may be imposed upon conviction.3 See Old CPL §§510.30(2)(a)(viii) and (ix). Yet in a case where evidence of guilt is weak (as, for example, when a prosecution is premised solely on an identification made by a single witness based on a fleeting encounter with a stranger), or where the defendant at worst likely faces a non-jail sentence, defense attorneys have long (and successfully) argued that there is little incentive for a defendant to flee, and that as a result low or no bail should be set. There is no reason to think that the Revised Bail Law is intended to preclude the court from considering these factors that have traditionally often favored the defendant in fixing bail. For all these reasons this Court concludes that — although the language of the Revised Bail Law could be much clearer — viewing the statute as a whole and with a view toward realizing its central purpose of reducing unnecessary pre-trial incarceration, the list of bail factors set out in Revised CPL §510.30(1) is not exclusive, and that the Court remains free to consider all information relevant to assuring defendant’s return to court. IV. APPLICATION OF THE REVISED BAIL LAW TO DEFENDANT Risk of Flight Turning to the specific circumstances of defendant Portoreal’s case, under the Revised Bail Law as a threshold matter the Court must first make an individualized determination whether defendant poses a risk of flight to avoid prosecution. Defendant clearly does pose just such a risk. He has powerful reasons to flee. The case against him is strong — indeed, one of the burglaries with which he is charged was caught on surveillance video. If convicted of the multiple counts of Burglary and Criminal Contempt contained in these two consolidated Indictments, defendant faces many, many years in state prison.4 Perhaps even more important, the charges against defendant (together with as yet unfiled charges of Contempt based on hundreds of recorded prison calls made by defendant to the complainant) indicate that defendant has no respect for court orders or for the processes of the court. It would be foolish to expect such a man to return to court merely because a court directs him to do so. In that connection, it should be noted that the Revised Bail Law clearly reflects the Legislature’s judgment that monetary bail may be especially appropriate where (as here) a defendant is charged with violating an order of protection in a domestic violence case. That is presumably the reason why Criminal Contempt (and even misdemeanor Criminal Contempt) in a domestic violence case is a qualifying offense under the revised statute; and that is why violation of an order of protection in a domestic violence case is a specifically enumerated bail factor listed in Revised CPL §510.30(1)(g). In this respect, the Revised Bail Law recognizes that a person like defendant Portoreal who is charged with Criminal Contempt poses an especially strong risk of flight because defendant has demonstrated his willingness to flout the authority of the court. Least Restrictive Alternative Next, the Court must select the least restrictive alternative form of bail that will reasonably assure defendant’s return to court. The very same reasons (recited above) that lead to the conclusion that defendant poses a strong risk of flight — that is, chiefly, the contumacious and repetitive nature of defendant’s alleged crimes, the strength of the People’s evidence, and the likelihood of a heavy prison sentence — also point to the conclusion that substantial monetary bail is the only adequate means to assure defendant’s return to court. No less restrictive non-monetary condition or combination of conditions will do. Moreover, in addition to the foregoing considerations, it must also be recalled that defendant is a poor bail risk because he has virtually no community ties; he is homeless, unemployed, and forbidden to have any contact with the complainant. Accordingly, essentially the same considerations that presumably led to defendant’s current bail conditions set under the old statute — that is, either a $300,000.00 insurance company bail bond, or $85,000.00 cash bail — also point to the conclusion that substantial monetary bail should be fixed for this defendant under the Revised Bail Law as well.5 Secured or Partially-Secured Bond Having determined that substantial monetary bail is the least restrictive alternative that will reasonably assure defendant’s return to court, the Court must next focus on the specific forms of monetary bail. The Revised Bail Law differs from the old with respect to forms of monetary bail. The Old CPL §520.10(2)(b) provides that bail may be posted in any one of two or more authorized forms; the Revised CPL §520.10(2)(b) instead provides that bail may be posted in any of three or more authorized forms, “except that one of those forms shall be either an unsecured or partially-secured surety bond, as selected by the court.” In other words, under the Revised Bail Law, the Court must set at least three alternative forms of monetary bail, and one of those must be either an unsecured or a partially-secured bond. CPL §500.10(18) (which remains unchanged) in turn defines a partially-secured bond as a bail bond secured only by a deposit of a sum of money not exceeding ten per cent of the stated amount of the bond. Traditionally, courts operating under the Old Bail Law have been very sparing in their use of both unsecured and partially-secured bail bonds, and have strongly preferred either cash bail or insurance company bail bonds. The reasoning behind this traditional practice was fairly straightforward. The purpose of monetary bail is provide a financial incentive for a defendant to return to court when he or she might otherwise fail to appear. Where (as here) a defendant is indigent or has very limited means, an unsecured bond provides defendant with little incentive to return to court. In such a case the defendant knows that if he or she fails to return to court as required, the amount of the unsecured bond likely cannot ever be collected as a practical matter. Similarly, where a defendant (or whoever is posting bail on his behalf) has limited means, the unsecured portion of a partially-secured bond provides little, if any, financial incentive for the defendant to return to court. Again, in such a case, the defendant knows that if he or she fails to return it is not likely as a practical matter that the unsecured portion of the bond will be ever be collected. By way of contrast, when a defendant has posted cash bail, the defendant knows that if he or she fails to appear in court as required, the defendant(or whoever has posted his or her bail) will almost immediately lose the entire amount of cash posted. That is a far more powerful incentive to return. Similarly, when a defendant posts an insurance company bail bond, the bail bondsman typically requires that relatively liquid assets be pledged as collateral to secure the total amount of the bond (and if the bail bondsman does not do so, a court can reject the bail bond). People ex rel Prieston v. Nassau County Sheriff’s Department, __NY3d__, 2019 NY Slip Op 08447 at *2 (November 21, 2019). Thus, the defendant knows that if he or she fails to appear, the defendant (or whoever secured the bond) will lose all of the assets pledged as collateral almost immediately, together with whatever cash or fee the bail bondsman required. That too is a powerful incentive to return to court. For all these reasons, under the Old Bail Law, courts typically favored cash bail and insurance company bail bonds, and disfavored unsecured or partially-secured bail bonds. Nevertheless, the Revised Bail Law mandates that either (a) an unsecured bond, or (b) a partially-secured bond must be made available as one form of monetary bail. An unsecured bond makes no sense in this case for obvious reasons. For the foreseeable future, defendant Portoreal will have no means to pay the amount due under an unsecured bond in the event he fails to appear. Thus an unsecured bond would be a mere empty promise on his part, and provides virtually no financial incentive for him to return. As a result, under the Revised Bail Law, the Court must permit defendant Portoreal to post a partially-secured bond. This raises new and interesting practical questions. How should the amount of a partially-secured bail bond relate to the amount of an insurance company bail bond? One possible approach would be to set the amount of the partially-secured bond at a level many multiples higher than the amount of the insurance company bail bond.6 The virtue of this approach would be to create essentially equivalent financial incentives for a defendant to return to court regardless of whether the defendant chooses an insurance company bail bond or instead chooses a ten per cent partially-secured bond. Yet while such an approach may be logical as a financial matter, it would appear to fly in the face of the intent of the Revised Bail Law. Plainly, the Legislature intended that some defendants who cannot afford an insurance company bail bond should still be able to afford a partially-secured surety bond; otherwise, the provision of the Revised Bail Law mandating the availability of partially-secured surety bonds would have no practical meaning. It is therefore this Court’s view that when setting monetary bail under the Revised Bail Law, a court should follow something of a middle course when selecting the amount of a partially-secured surety bond. On the one hand, the amount of the partially-secured bond should be somewhat higher than that of the insurance company bail bond, so as to reflect the reality that a partially-secured surety bond provides substantially less financial incentive for a defendant to return to court than does an insurance company bail bond in the same amount. But, on the other hand, the amount of the partially-secured bond ordinarily should not be more than triple the amount of the insurance company bail bond, because otherwise the Revised Bail Law’s requirement that a partially-secured bond be made available as an alternative form of monetary bail would be rendered meaningless as a practical matter. V. CONCLUSION For all the foregoing reasons, after giving due consideration to all the relevant criteria set forth in the Revised Bail Law, the Court new resets and fixes defendant’s bail as follows. Defendant’s new bail conditions are that he must: (1) post $50,000.00 cash bail; or (2) post a $200,000.00 insurance company bail bond; or (3) post a $250,000.00 partially-secured surety bond with a ten per cent cash deposit. In addition, as a condition of defendant’s release, defendant must abide by an order of protection in favor of the complainant. This Opinion constitutes the Decision and Order of the Court. Dated: December 9, 2019 Bronx, New York
