DECISION & ORDER Defendant Louis R. Allen moves for an order granting the following relief: release of the principal on the principal’s own recognizance, or in the alternative, a modification of the previously set bail to include non-monetary conditions or nominal monetary conditions, coupled with non-monetary conditions. The defendant is charged by Indictment #2019-628 with the crime of Making A Terroristic Threat in violation of Penal Law §490.20(1). When the defendant was arraigned on October 23, 2019, this Court, after hearing the arguments of counsel, set bail in the amount of $75,000 cash or $150,000 bond. The defendant remained in custody. The allegations outlined by the People are that the defendant posted a Snapchat1 story, which included a photograph of two guns (a long black gun and a black pistol with a clip) laid out on a bed. The text accompanying the photograph included statements to the effect that the defendant did not feel accepted, he hated everyone and everyone hated him. He stated that he had a plan to park at the high school parking lot, run down and “shoot it up.” He was going to shoot people during the homecoming football game, which was scheduled for the following day. When confronted by someone that his comments were not funny, the defendant responded that it was not a joke and he was going to do it. There was a homecoming football game scheduled the following day at the defendant’s former high school. The People contend that the defendant’s father made material false statements regarding the presence of the guns depicted in the Snapchat post being present at the house and that those items were recovered from the house during the execution of a search warrant. Further, the People contend that the defendant told State Police investigators that he has three separate personalities when explaining his conduct. APPLICATION TO MODIFY BAIL The new bail statute provides that, “Upon any occasion when a court has issued a securing order with respect to a principal and the principal is confined in the custody of the sheriff as a result of the securing order or a previously issued securing order, the principal may make an application for recognizance, release under non-monetary conditions or [modification of the previously set] bail” (CPL 510.20[1]). The new bail statute requires that a 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]). The court is required to explain its choice on the record or in writing (CPL 510.10[1]). As a further restriction on the courts, bail only may be set on a principal who is charged with a “qualifying offense.” The relevant “qualifying offense” provisions for this Court’s consideration in the instant case include: a violent felony offense as defined in Penal Law § 70.02, and a felony crime of terrorism as defined in article four hundred ninety of the Penal Law (CPL 510.10[4][a], [g]). Each of those respective provisions include exceptions. The only violent felony offenses excluded under the statute are burglary in the second degree, as defined in subdivision two of Penal Law §140.25 and robbery in the second degree, as defined in subdivision one of Penal Law §160.10. There are no other violent felony offenses that are exempt from constituting a qualifying offense (CPL 510.10[4][a]). The only felony crime of terrorism as defined in article four hundred ninety of the penal law that is exempt from being a qualifying offense is “the crime defined in section 490.20 of such law” (CPL 510.10[4][g]). The statute provides that the court “shall consider” several factors in determining the kind and degree of control or restriction that is necessary to secure a defendant’s court appearance, including any “information about the principal that is relevant to the principal’s return to court” (CPL 510.30[1]). Specific examples include: the principal’s activities and history, the charges facing the principal, the principal’s criminal conviction record, the principal’s record of previous adjudication as a juvenile delinquent or a youthful offender, the principal’s previous record with respect to flight to avoid criminal prosecution, and if monetary bail is authorized, the principal’s individual circumstances and ability to post bail without undue hardship (CPL 510.30[1][a]-[f]). A hearing was conducted on January 3, 2020. The People were represented by Chief Assistant District Attorney Christopher Borek, Esq. The defendant was represented by Joseph E. Ruyuack, III, Esq. No witnesses were called by either party. The People introduced three documents into evidence. The first document received into evidence was a letter addressed to the Court from counsel for the principal. Counsel requested that a plea offer remain open for an extended period, beyond the time period previously agreed to by the parties. Counsel outlined the reasons why the offer should be kept open. On December 17, 2019, counsel went to the jail to discuss the offer and potential legal defenses with the principal. A deputy at the jail advised counsel that his client had defecated on himself, they were cleaning him up, and the client refused to meet with counsel. Counsel returned to the jail two days later and the principal refused to see him again. In speaking with the principal’s father, counsel learned that the principal appeared “drugged or incoherent and distressed” on December 16, 2019 when the father visited him, and that the principal currently is refusing to be seen by his father at the jail. Counsel requested an extension of time so that he could have an opportunity to discuss the case with a client “that is competent and coherent.”2 The second document received into evidence was a copy of the principal’s criminal history. There were no convictions identified. The criminal history reflected the arrest on the instant case, as well as a subsequent arrest of the defendant for sexual abuse in the second degree in violation of Penal Law §130.60(2) (“Sex Abuse”). While the Sex Abuse arrest was subsequent to the instant case, the date of the crime is identified as occurring prior to the allegations in the instant case. The third document received into evidence was a notice of intent to use statements pursuant to CPL §710.30(1)(a). The notice was related to the principal’s arrest for Sex Abuse. The principal purportedly admitted to a State Police investigator that he had oral sex and received a “hand job” from an underage girl, that he had communicated with the underage girl through text messages, and that he deleted the evidence “so they couldn’t be found.” No evidence was presented on behalf of the principal. The principal (in the instant application, the defendant) contends that he is charged with a crime that does not constitute a “qualifying offense”, therefore, this Court is without authority to set bail. The plain language contained in CPL 510.10(4)(g) states that the felony crime of terrorism as defined in “section 490.20″ — the very section under which the principal in this case is charged — is a non-qualifying offense. In the alternative, the principal contends that even if he is charged with a qualifying offense, there are non-monetary conditions or nominal monetary conditions coupled with non-monetary conditions that will reasonably assure the principal’s return to court. Those options serve as the least restrictive alternatives, therefore, this Court must order those alternatives, as opposed to the current bail. The People assert that the defendant is charged with a qualifying offense, and there are no non-monetary conditions that will reasonably assure the principal’s return to court. The People concede, however, that the new bail statute requires that this Court issue a third form of bail in the form of either an unsecured bond or a partially secured bond. LEGAL ANALYSIS A condition precedent to setting bail is that the principal be charged with a “qualifying offense.” There is no dispute that the felony crime of Making a Terroristic Threat as defined in section 490.20 of the Penal Law does qualify as a violent felony offense (Penal Law §70.02[1][c]). All violent felony offenses, but for one subdivision each of burglary in the second degree and robbery in the second degree, constitute a “qualifying offense” (CPL 510.10[4][a]). However, under a separate subdivision of the same statute, it states that the only felony crime of terrorism as defined in article four hundred ninety of the penal law that is exempt from being a qualifying offense is “the crime defined in section 490.20 of such law” (CPL 510.10[4][g]). Clearly, there is an internal conflict in the statute. An analysis of the statutory construction is important in resolving this internal conflict. There are nine separate subdivisions under CPL 510.10(4) that address which crimes constitute a “qualifying offense.” The first subdivision (“a”) addresses how violent felony offenses are treated. Each subdivision thereafter addresses crimes other than the violent felony offenses identified under Penal Law §70.02, including witness intimidation, witness tampering, class A felonies (other than drug offenses), violent felony sex offenses (a separate category from violent felony offenses), felony sex offenses, sex offenses, incest, conspiracy to commit a class A felony involving homicide, money laundering in support of terrorism, felony crimes of terrorism, criminal contempt involving domestic violence, and facilitating or using a child in a sexual performance. Each paragraph identifies crimes that constitute qualifying offenses. The recurring themes of the crimes that constitute qualifying offenses include violence, sex, terrorism and domestic violence, so it is important to consider the underlying elements of Making a Terroristic Threat in order to reconcile the inconsistency in the statute. Making a Terroristic requires that a person “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination, or kidnapping, he threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense” (Penal Law §490.20[1]). Given those elements, it is readily apparent why that crime is classified as a violent felony offense. If a person were charged with murder3, conspiracy to commit murder, or kidnapping, any of those crimes would constitute a qualifying offense under PL 510.10(4). It is hard for this Court to imagine that our duly elected officials would even contemplate excluding making a terroristic threat akin to the allegations contained in the instant case, given the rash of domestic terrorism against our schools. Those unspeakable tragedies could not have been forgotten by our elected officials, and certainly deserve no less consideration than those other crimes designated as qualifying offenses. If the legislature had intended to exempt the violent felony offense of Making a Terroristic Threat, it would have been included in the exclusionary language contained in subdivision “a.” As such, this Court finds that Making a Terroristic Threat constitutes a qualifying offense. Given that the condition precedent to setting bail has been met, this Court now considers whether the principal poses a significant risk of flight to avoid prosecution, and if so, what is the least restrictive alternative and the condition or conditions that will “reasonably assure the principal’s return to court” (CPL 510.10[1]). This Court has considered all the relevant factors enumerated in CPL 510.30 in determining the kind and degree of control or restriction that is necessary to secure a defendant’s court appearance. The principal’s activities and history include his purported admissions to destroying evidence in a sex abuse case in order to avoid arrest. He also identified some mental health issues that may materially effect his cooperation in returning to court. The charges facing the principal include a violent felony offense with a mandatory minimum state prison sentence if he were convicted of that crime.4 The principal has no prior criminal conviction record, and no known record of previous adjudications as a juvenile delinquent or a youthful offender. The principal’s previous record with respect to his attempts to avoid criminal prosecution appeared to be limited to the destruction of evidence, not with respect to flight from prosecution. Additional information about the principal that is relevant to the principal’s return to court include his apparent mental instability as outlined in his counsel’s letter to the court, as well as his purported statements to the state police regarding him having multiple personalities. If the principal has bouts where he refuses to cooperate with his lawyer and family, there are significant questions whether he will follow the court’s instructions regarding future court appearances. After considering such, this Court finds that the People have demonstrated to the satisfaction of this Court that the principal poses a significant risk of flight to avoid prosecution. Further, the least restrictive alternative and condition or conditions that will “reasonably assure the principal’s return to court” include that bail will be continued in the amount of $75,000 cash and $150,000 bond. However, as is required under the new bail statute, a third option, a $500,000 partially secured bond (at 10 percent), will also be set as an additional form of bail that may be posted to reasonably assure that the principal will return to court. Since this Court has determined that monetary bail is authorized, the principal’s individual circumstances and ability to post bail without undue hardship has been considered as well. While no specific evidence was presented to the court, this Court notes that the principal has a privately retained counsel and has not presented himself as being indigent. Contrary to the arguments made by the principal’s counsel, a principal does not have a constitutional or statutory entitlement to a bail set that he can post, he “is entitled to an opportunity to make it in a reasonable amount” which is sufficient to “reasonably assure the principal’s return to court” (see Stack v. Boyle, 342 US 1, 10 [1951]; CPL 510.10[1]). The amounts set herein are reasonable amounts in three separate forms. ADJOURNED DATE This matter is scheduled for a conference on January 28, 2020 at 9:30 A.M. The defendant, defendant’s counsel, and District Attorney are directed to be present. The aforesaid constitutes the Decision and Order of the Court. Dated: January 9, 2020 Goshen, New York
