DECISION AND ORDER The defendant in this case was charged with bail qualifying offenses and ultimately released under non-monetary conditions. He subsequently failed to appear for his supervised release interview, never appeared in court of his own volition, and was re-arrested on two subsequent occasions and charged with new crimes. This decision addresses the following question: Under the recently enacted bail reform law, must the court hold a full evidentiary hearing, at which the defendant’s willful and persistent absence from court and non-compliance with his conditions of release must be proven by clear and convincing evidence, before revoking the non-monetary conditions and setting bail? The answer is no. PROCEDURAL HISTORY On February 18, 2020, Defendant Charlie Garcia appeared before the Court with four pending dockets (2019BX023593, 2019BX025089, 2019BX028996, CR-003633-20BX). Docket 2019BX023593 (“the first case”) was a compliance matter. The defendant had entered a plea of guilty to Menacing in the Second Degree (PL §120.14[1]) in exchange for a promised sentence of a conditional discharge and two days in an anger management program. He was sentenced on August 31, 2019 and the case was adjourned to October 31, 2019 for compliance. He neither appeared on that date nor completed the anger management program, and a bench warrant was ordered. In the instant case (2019BX025089, “the second case”), the defendant was arrested on September 18, 2019 and charged with, among other crimes, one count of Forcible Touching (PL §130.52[1]) and one count of Sexual Abuse in the Third Degree (PL §130.55), both bail eligible offenses under the new statute. He was released on his own recognizance and the case was adjourned for conversion to October 17, 2019. When the defendant did not appear on that date, a warrant was issued. The defendant was returned involuntarily on both warrants on November 2, 2019 when he was re-arrested for possession of synthetic marijuana (commonly known as “K2″) and charged in Docket 2019BX028996 (“the third case”). He was released under supervision in all three cases, which were adjourned to December 18, 2019. The defendant did not appear for his supervised release intake interview on November 4, 2019, and did not appear in court on December 18, 2019, when bench warrants were issued in all three of the pending matters. On February 17, 2020, the defendant was arrested on 35 counts of Criminal Tampering in the Second Degree (PL §145.15). The criminal court complaint alleged that at 35 different times and places, the defendant inserted objects into various subway vending machines, causing them to become inoperable. He was returned involuntarily on all of the outstanding warrants and arraigned before this Court on February 18, 2020. At the defendant’s arraignment on the new charges, the People requested revocation of the defendant’s release status and bail in the amount of $5,000 in the second case, which was the only case that charged qualifying offenses under the new bail statute. They argued that the defendant’s re-arrests, lack of compliance with the terms of his supervised release, and numerous failures to appear supported this change. The defendant opposed, arguing that an evidentiary hearing was required under CPL §§530.60(2)(b) and (c) before any modification of his release order. After hearing extensive argument, the Court denied the defendant’s request for an evidentiary hearing, holding that its power to set bail in qualifying offenses continued throughout the pendency of the case. The Court further held that it could exercise that power without an evidentiary hearing so long as the factors outlined in CPL §510.30 were duly considered and good cause was shown to warrant revocation of the existing securing order pursuant to CPL §530.60(1). The Court set bail in the amount of $3,000 cash, $3,000 insurance company bond, $3,000 in credit card and $3,000 in partially secured bond (secured by 10 percent ) as the least restrictive alternative to secure his return. The case was adjourned to February 26, 2020. On February 26, 2020, defense counsel revisited the bail decision. She argued that a different statute — CPL §510.40(3) — entitled the defendant to an evidentiary hearing at which the People would have to prove by clear and convincing evidence that the defendant had failed to comply with the conditions of his release in some important respect before the Court could modify the securing order and set bail. The Court again denied the defendant’s request, finding that this section of the CPL governs the imposition of additional or changed non-monetary conditions and not the setting of bail, and maintained the same bail conditions. This written decision further explains the Court’s bail orders issued orally on February 18 and 26, 2020. LEGAL ANALYSIS 1. Defendant’s Request for an Evidentiary Hearing Pursuant to CPL §530.60(2)(b) is Denied New York’s much discussed new bail statute was signed into law by Governor Cuomo on April 1, 2019 (L. 2019, c 59, effective January 1, 2020). It was aimed at drastically curtailing the use of cash bail by eliminating it for individuals charged with most misdemeanors and non-violent felonies (“non-qualifying offenses”) (CPL §530.20[1][a]). By contrast, with respect to so-called “qualifying offenses,” the legislature gave courts broad authority to determine the appropriate securing order including release on recognizance, release under non-monetary conditions, bail or, in the case of qualifying felonies, remand, provided that the court finds the defendant poses a “risk of flight” and selects “the least restrictive alternative” to ensure his return to court (CPL §530.20[1][b]; CPL §510.10[1]). As part of this sweeping change, the legislature also amended article 530.60 of the CPL and changed the title from “Order of recognizance or bail; revocation thereof” to “Certain modifications of a securing order” (CPL §530.60). The amended statute provides three different situations in which a court can modify a securing order, each with its own legal standard. The first is outlined in subsection one. This subsection was carried over largely intact from the previous version except that an extra form of securing order — release under non-monetary condition — and a requirement to wait for at least forty-eight hours before issuance of a bench warrant were added (see Peter Preiser, Practice Commentary, McKinney’s Cons Laws of NY, CPL 530.60) [Note: online version]. This subsection provides that “the court, for good cause shown, may revoke the order of recognizance, release under non-monetary conditions, or bail” and then issue another securing order (CPL §530.60[1] [emphasis added]). The second situation for modifying a securing order is found in subsection 2(a). It provides that a securing order may be modified when “the court finds reasonable cause to believe the defendant committed one or more specified class A or violent felony offenses or intimidated a victim or witness” while at liberty from another pending felony (see id. [2][a] [emphasis added]). Subsection 2(b) outlines the third situation. It states, in relevant portions, “[e]xcept as provided in paragraph (a) of this subdivision or any other law,” a court may revoke a securing order and fix bail in cases where the defendant is released on his or her own recognizance, released under non-monetary conditions, or bail, when the court has found by clear and convincing evidence that the defendant (i) “persistently” and “willfully” failed to appear for scheduled court appearances, (ii) violated an order of protection, (iii) intimidated a witness, or (iv) committed a felony while at liberty on another pending felony case (CPL §530.60[2][b][i]-[iv]). The statute further provides that before revoking a securing order pursuant to this subdivision, “the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged” (CPL §530.60[2][c]). In such a hearing, “[t]he defendant may cross-examine witnesses and may present relevant, admissible evidence on his behalf” (id.). In this case, defense counsel argued that since the People were seeking bail based on the defendant’s failures to appear, an evidentiary hearing must be held under CPL §§530.60(2)(b)(i) and 2(c) at which the prosecutor must show by clear and convincing evidence that the defendant’s absences were willful and persistent. The People claimed that no such hearing was necessary because the defendant was charged with qualifying offenses and the Court could modify the securing order based on “good cause shown” (CPL §530.60[1]). When determining a question of statutory interpretation, the court’s primary consideration “is to ascertain and give effect to the intention of the Legislature” (McKinney’s Cons Laws of NY, Statutes §92). It is well-settled that “[t]he statutory text is the clearest indicator of legislative intent” and the court “should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp v. Spitzer, 7 NY3d 653, 660 [2006]; see also Roberts v. Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009][starting point for discerning legislative intent is the statute's language itself]). Also, “[c]ourts must interpret new laws as part of a symmetrical and coherent regulatory scheme; if possible, both old and new parts must be fit into a harmonious whole, rendering them internally compatible” (People v. Weston, 2020 NY Slip Op 20046, *2 [Crim Ct, Bronx County 2020][Hartofilis, J.], citing Yatauro v. Mangano, 17 NY3d 4220 [2011]). The plain language of the statute supports the People’s view that a full evidentiary hearing, at which an enhanced standard of proof would be imposed, was not required before setting bail in this case. Subsection 2(b) states that “it shall be grounds for revoking such order and fixing bail” when one of the triggering events occurs (CPL §530.60[2][b]). This subsection does not purport to be the exclusive grounds for revoking or modifying a securing order. It does not say that these triggering events are the only grounds for revoking securing orders and setting bail; it just says that such triggering events “shall be grounds” for such action. The language is permissive, not limiting. Indeed, as discussed above, not only does section 530.60 provide different methods for changing a securing order depending on factual circumstances, but subsection 2(b), upon which the defense relies, actually begins with the qualifier, “Except as provided in paragraph (a) of this subdivision or any other law…” (see CPL §530.60[2][b]). Although the legislature could have expressly stated that the court’s broad discretion to set bail on defendants accused of qualifying offenses is restricted by subsection 2(b), the statute does not say that. Instead, subsection 1 provides a court with broad authority — which, of course, must be read in conjunction with the requirements of CPL §530.20 — to revoke a securing order and set bail for good cause shown. This clear reading of the statute also comports with the intent of the legislature and historical context. In 1981, the legislature added the previous version of CPL §530.60(2), which allowed a court to revoke an order of recognizance or bail for a defendant who, while at liberty on a felony charge, committed a Class A felony, a violent felony, or certain crimes of witness intimidation (see prior version of CPL §530.60[2][a] [ineffective Dec. 31, 2019]). This change, which was somewhat controversial at the time, reflected a small move toward the use of bail as a preventative measure (People v. Torres, 112 Misc2d 145, 151 [Sup Ct, NY County 1981][noting that the change was "motivated by the concept that potential harm to the community, and not only the possibility of flight, should influence the initial decision to permit pretrial release"]). Because it marked “a departure from traditional practice and because it [was] so potentially subject to abuse, it was expressly limited to only those cases where one already charged with a serious crime [was] rearrested for another” (id. at 152). As an “added protection,” an evidentiary hearing was mandated (id.; see also People v. Saulnier, 129 Misc2d 151, 154-155 [Sup Ct, NY County 1985]). This same rationale explains why the legislature delineated specific situations in which bail could be ordered under CPL §530.60(2)(b), and why additional evidentiary safeguards were applied before such bail could be imposed in those situations. The legislature, when passing the new bail statute, was deeply committed to the ideal of no cash bail or remand for non-qualifying offenses, and yet recognized that safeguards needed to be in place to address situations in which defendants released on non-qualifying offenses repeatedly failed to return to court, or committed certain new crimes while at liberty. It appears that the resulting statutory scheme was a compromise reflecting these equally important considerations. On the one hand, the legislature wanted to do away with cash bail for what it viewed as less serious offenses. At the same time, the legislature recognized that courts must have some mechanism to set bail for defendants who, while released on non-qualifying offenses, persistently fail to appear in court or continue to commit additional serious crimes. Finally, in order to make sure that courts do not overuse their ability to set bail on non-qualifying offenses under these limited circumstances, the legislature retained, and even expanded, the evidentiary hearing requirement as an extra layer of process for these defendants. Put another way, the legislature did not mandate the evidentiary hearing specified in article 530.60(2)(b) for qualifying offenses because the concerns outlined above are not present with qualifying offenses. This class of criminal conduct has already been deemed by the legislature to be worthy of being subjected to the court’s broad discretion to set the appropriate securing order, including bail and, with qualified felony offenses, remand. The Court’s ability to set bail on a qualifying offense continues to exist throughout the pendency of the criminal case and there is nothing in section 530.60 that limits that ability. Indeed, CPL §530.60(1), read in conjunction with CPL §530.20, specifically allows it. Section 530.60(2)(b) represents an expansion, not a reduction, of the court’s ability to set bail in certain situations (see People v. Torres, infra, at 150 [in analyzing the earlier amendment to CPL §530.60, the court held, "The new amendment plainly does not repeal the existing power to revoke bail for good cause, which indeed is inherent in the court"]). Reading CPL §530.60(2)(b) to apply any time a court felt it necessary to revoke a securing order and set bail on a defendant accused of a qualifying offense would also lead to anomalous and non-sensical outcomes. The Court of Appeals has consistently held that courts must interpret statutes so as to avoid such unreasonable or absurd results (People v. Garson, 6 NY3d 604, 614 [2006]; People v. Kramer, 92 N.Y.2d 529, 539 [1998]). For example, consider a defendant charged with a qualifying offense of Robbery in the First Degree. The new bail law allows the arraignment court, after hearing the arguments of counsel and making the necessary finding of risk of flight and determining the least restrictive means to ensure the defendant’s return to court, to set bail on such a defendant. The statute does not require an evidentiary hearing, the cross-examination of witnesses or “clear and convincing” findings. Assume, however, that the arraignment court decides instead to release the defendant under supervision, and the defendant fails to appear on his adjourn date and remains an absconder for six months before being returned to court by the police. If subsection 2(b) applies to this defendant, the court would now have to hold a full evidentiary hearing, allow the defense to cross examine witnesses, and find by clear and convincing evidence that the defendant’s absence was “willful and persistent” before setting bail on exactly the same crime that would have required only a summary hearing at arraignment. It makes absolutely no sense that the defendant would be entitled to more process after placing himself in a worse position by missing his court date. Similarly, a defendant charged with a qualifying felony may be remanded at arraignment if there is no less restrictive alternative to secure her return to court (CPL §530.20[1][b]). However, if this same defendant were released and brought back to court after persistent absences, mandating the application of subsection 2(b) — as the defense argues in this case — would prevent the court from remanding the defendant because subsection 2(b) affords the court no remand option.1 Under this untenable interpretation, the court would lose its ability to remand despite the defendant’s subsequent conduct that demonstrates her to be a higher flight risk. For all of the above reasons, the Court holds that a securing order in a qualifying offense may be modified based on good cause pursuant to CPL §530.60(1), and the Court’s ability to do so is not limited by CPL §530.60(2)(b). Because the Court placed its consideration of the factors outlined in CPL §510.30 on the record when setting bail on February 18, it is unnecessary to go through them again here. 2. Defendant’s Request for an Evidentiary Hearing Pursuant to CPL §510.40(3) is Denied On February 26, 2020, defendant renewed his argument for release, this time arguing that an evidentiary hearing was required under a different statute, CPL §510.40(3), before bail could be set. After finding that this statute applied only to changes to non-monetary conditions of release, the Court denied the defense’s request and maintained the same bail conditions. This portion of the decision further explains the Court’s oral decision and order from February 26. CPL §510.40(3) provides, in whole: Non-monetary conditions of release shall be individualized and established in writing by the court…. In the event of alleged non-compliance with the conditions of release in an important aspect, pursuant to this subdivision, additional conditions may be imposed by the court, on the record or in writing, only after notice of the facts and circumstances of such alleged non-compliance, reasonable under the circumstances, affording the principal and the principal’s attorney and the people an opportunity to present relevant, admissible evidence, relevant witnesses and to cross-examine witnesses, and a finding by clear and convincing evidence that the principal violated a condition of release in an important respect. Following such a finding, in determining whether to impose additional conditions for non-compliance, the court shall consider and may select conditions consistent with the court’s obligation to impose the least restrictive condition or conditions that will reasonably assure the defendant’s return to court. The court shall explain on the record or in writing the reasons for its determination and for any changes to the conditions imposed. (id.). Defendant’s argument that this statute applies to the case at hand is belied by the language of the statute itself. The Court begins by noting that “release under non-monetary conditions” is a separate and distinct form of securing order that was introduced along with the other criminal reforms discussed in the previous section (see e.g. CPL §510.10 [requiring an arraignment court to, 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"]). Specifically, CPL §500.10 was amended to add the definition of “release under non-monetary conditions” (CPL §500.10[3-a]). Under this definition, the court may “authorize[] the person to be at liberty during the pendency of the criminal action or proceeding involved under conditions ordered by the court, which shall be the least restrictive conditions that will reasonably assure the principal return to the court” (id.). The statute goes on to provide some specific examples of such conditions. It is clear from the face of section 510.40(3) that it governs the imposition of additional non-monetary release conditions after a defendant’s non-compliance with conditions originally set, not the setting of bail after the revocation of the original conditions. For instance, the section begins by commanding that non-monetary conditions of release be set forth in writing (CPL §510.40[3]). It also provides that when “non-compliance with the conditions of release in an important aspect” occurs, additional conditions may be imposed only after an evidentiary hearing. The statute further provides that before imposing such additional conditions, the court must explain on the record the reasons for “any changes to the conditions imposed” (id. [emphasis added]). Significantly, the section does not reference the imposition of bail at all. In other words, release with conditions is distinct from bail, and 510.40(3) specifically contemplates what the court needs to do in order to impose “changes to the conditions imposed” (id.). As the Court in this case did not change the non-monetary conditions, but rather revoked a securing order and set bail, this statute is inapplicable, and the defendant’s request is denied. This constitutes the decision and order of this Court. Dated: March 3, 2020
