Decision After Hearing The defendant, Joseph J. Chensky, is charged with Grand Larceny in the Fourth Degree (Credit Card) under Penal Law 155.30(4) and Grand Larceny in the Fourth Degree (Value under $1,000.00) under Penal Law 155.30(1). Both are Class E felonies. The charges stem from an incident that occurred on or about December 3, 2019, at a Stop and Shop, in the City of Long Beach, County of Nassau, New York State. On January 15, 2020 the defendant was arrested by the Long Beach City Police for the two E felonies and as they were “non-qualifying offenses” he was issued a desk appearance ticket (DAT) directing his appearance before a Long Beach City Judge for the following day, January 16, 2020. The DAT specifically stated that “upon your failure to appear as above directed, a criminal summons or a warrant for your arrest may be issued”. The defendant did indeed appear in Long Beach City Court on January 16, 2020 and at that time the People filed the two (2) felony complaints currently before this Court. The defendant then consented to have the case transferred to this Court, the Nassau County Superior Criminal Court and he was informed that his case would be on the calendar for January 27, 2020. Defendant Chensky was released on his own recognizance (ROR) and given the appropriate admonishment, which once again stated that a future failure to appear, would result in a warrant of arrest in accordance with People v. Parker, 57 NY2d 136 (1982). On Monday, January 27, 2020 the defendant failed to appear before this Court. Defense counsel requested time to reach out to the defendant and his extended family and the Court granted the application and calendared the next court date for February 3, 2020. It is significant to note that, while the new statute only provides a delay in the issuance of a bench warrant for 48 hours [see CPL 510.50(2)] this Court provided the defendant with a full week, eight days counting his first failure to appear. On February 3, 2020 defendant Chensky failed to appear again. Defense counsel notified the Court that he had personally reached out to the defendant and his extended family. The People requested a bench warrant and one was issued by the Court forthwith. After the issuance of the bench warrant, defendant failed to voluntarily surrender and was thereafter arrested and brought before this Court on February 7, 2020. As a result of the defendant’s failure to appear twice, and not voluntarily surrendering once the bench warrant was issued, this Court determined by clear and convincing evidence that the defendant persistently and willfully failed to appear after notice of scheduled appearances pursuant to CPL 530.60 (2)(b)(i), and monetary bail was set. The following are the conclusions of law and reasons for the Court’s determination. Under the newly enacted Bail Reform Act of 2019 (L. 2019, CH. 59, Part JJJ), numerous crimes, such as the two felonies charged herein, are considered “non-qualifying offenses” where bail, at least initially, is not an option for the Court. However, a defendant at liberty can have bail set, even if they otherwise could not have had bail set “when the Court has found clear and convincing evidence that the defendant persistently and willfully failed to appear after notice of scheduled appearances in the case before the Court”, CPL 530.60 (2)(b)(i). The degree of proof is “clear and convincing” evidence. This standard is one of an intermediate nature, being more than mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt. People v. Dilillo, 162 AD3d 915 (2nd Dept. 2018). The key to determine if monetary bail can be set resides in the meaning of the words “willfully” and “persistently”. Neither of these words are defined in the statute and as such trial courts are required to develop and adopt an independent approach for an appropriate interpretation. As a general rule, words used in Penal Law and Criminal Procedure Law are to be given their usual ordinary and commonly accepted meaning. People v. King, 61 NY2d 550 (1989); People v. Munoz, 207 AD2d 418 (2nd Dept. 1994). The language of a statute is generally constructed according to its natural and most obvious sense and plain meaning, without resorting to artificial and/or forced construction. Van Amerogen v. Donnini, 156 AD2d 103 (3rd Dept. 1990). There is little, if any, guidance as to the definition of “willfully” and “persistently” although the New York Bail Reform Bench Book (Hon. Daniel Conviser) is of some assistance here. An appropriate definition for “willfully” is construed as a “conscious disregard”, People v. Smith, 34 AD2d 524 (2nd Dept. 1970). Under Federal interpretation, the term “willfully” means “voluntary intentional violation of a known legal duty”. United States v. Pomponio, 429 US 10 (1976). While as a general rule, defendants will not miss their court dates, here the defendant has failed to appear in court on three (3) separate occasions. He has therefore continuously disregarded his legal duty to appear in Court for his charged crimes, even though he was advised on more than one occasion of the seriousness of this legal responsibility. Although the defendant was notified by way of Parker warnings by the Long Beach City Court, he failed to appear on the court scheduled appearance date (January 27, 2020) even though he was admonished to appear on the court record. He therefore failed to appear on the following date (February 3, 2020), although notified. A warrant was therefore issued and the defendant did not voluntarily appear to surrender. There was no indication on the record by the defendant or counsel that anything other then a willful disregard was the reason for his failure to appear on the scheduled appearance dates or thereafter. Thus the defendant’s failure to appear in court can be determined to be willful and was an intended violation of the legal duty and obligation to come to court as directed. As to the word “persistently”, there is no specific definition in the Penal Law or Criminal Procedure Law, but there is case law and statutes that are helpful and can be of assistance. For example, persistent has been defined as “existing for a long time or longer than the usual time or continuously”. People v. Velazquez, 58 AD3d 646 (2nd Dept. 2009); People v. Morse, 62 NY2d 205 (1984). Also, the one statutory area where there is some definition of “persistent” is the persistent felony offender statute, under Penal Law 70.08 (1)(a). Under the statute, a persistent felony offender must have two (2) prior felony convictions in addition to the defendant’s current one, in other words, three (3) felony convictions. Therefore, at least under the Persistent Felony Offender Statute, three (3) incidents are a key to determine where it might be viewed as “persistent”. People v. Ramos, 45 AD3d 702 (2nd Dept. 2007). In the instant case, the defendant failed to appear on two (2) scheduled court dates, and failed to voluntarily return to court following the issuance of a bench warrant. These three (3) failures to appear, in the spirit of the law, can determine that the defendant’s lack of court attendance was persistent. Certainly this interpretation would be consistent with the statute, and avoids an absurd result, where the defendant would be released and possibly rearrested on a continuous basis. McKinney’s Statutes Sec 145: Rivera v. Eric Co. Bd. Of Elections, 164 AD2d 976 (4th Dept. 1990). Accordingly, it is the holding of this Court, by clear and convincing evidence and proof, that the defendant was notified and willfully failed to appear to court, and that failure was persistent due to failures to return to court. The defendant shall be classified as an absconding defendant and the Court may now have bail set under CPL 530.60(2)(b)(I). As a result the defendant’s conduct, and the concern of this Court regarding the likelihood of the defendant’s “risk of flight”, this Court holds that bail is required to “reasonably assure the principal’s (defendant) return to Court” CPL 500.10(3-A). Bail is set at $10,000.00 cash, $30,000.00 bond and $300,000.00 unsecured surety bond. CPL 520.10(2)(b). The Court will, of course, revisit this statute at a later date upon request of counsel. This determination shall constitute the decision and Order of this Court. It is, SO ORDERED, Dated: February 20, 2020
