DECISION AND ORDER On March 30, 2020, Defendant was arraigned on three felony complaints following the execution of a search warrant at 92 South Hamilton Street in the City of Poughkeepsie. One felony complaint charged Defendant with Criminal Possession of a Weapon in the Second Degree (loaded firearm), a Class C Armed Violent Felony, in violation of §265.03(1)(b) of the Penal Law. The other two felony complaints charged Defendant with Criminal Possession of a Controlled Substance in the Third Degree, a Class B Felony, in violation of §§220.16(1) (intent to sell) and 220.16(12) (aggregate weight of one-half ounce or more). During the arraignment, I reviewed the felony weapons complaint and concluded that it is facially sufficient [CPL §§100.40(4)(b) and 140.45]. After determining that Criminal Possession of a Weapon in the Second Degree is a qualifying offense for purposes of New York’s bail statute [CPL §§510.10(4)(a) and 530.20(1)(b)(i)], and after reviewing the relevant statutory factors, I also concluded that bail is the least restrictive kind and degree of control or restriction necessary to secure Defendant’s return to court when required [CPL §510.30(1)]. Accordingly, I set bail in the amount of $50,000 cash, $100,000 bond, or $200,000 partially-secured bond.1 After bail was set, the People and defense counsel asked to be heard as to whether the CPL §180.80 time period to conduct a preliminary hearing or otherwise dispose of the felony complaint has been suspended by Executive Order 202.8, issued by the Governor on March 20, 2020 as part of New York’s response to the COVID-19 emergency disaster. After hearing oral argument on April 1, 2020, I ruled from the bench that the CPL §180.80 time period has been suspended by Executive Order 202.8. I also concluded that, even if the statutory time period had not been suspended, the People have shown good cause why Defendant should not be released [CPL §180.80(3)]. This written Decision and Order sets forth the basis for my determination, as summarized during my ruling from the bench. DISCUSSION When a defendant is being held in custody following an arraignment on a felony complaint, Article 180 of the Criminal Procedure Law affords the defendant the right to a prompt hearing to determine whether there is sufficient evidence to warrant the defendant’s continued custody pending action by the Grand Jury [CPL §180.10(2)]. That preliminary hearing is an adversarial proceeding, at which the People are required to establish through non-hearsay evidence that there is reasonable cause to believe that the defendant committed a felony [CPL §180.60]. If a preliminary hearing has not been conducted within 120 hours from the time of arrest (or 144 hours if the period of custody includes a Sunday or a legal holiday), and there has been no other disposition of the felony complaint (by Grand Jury action, or by reduction or dismissal of the charges), the defendant may file an application seeking release on his own recognizance [CPL §180.80]. During a state disaster emergency, and subject to the state and federal constitutions and federal law, the Governor may issue an Executive Order temporarily suspending any statute if compliance with its provisions “would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.” [Executive Law §29-a(1)]. The list of qualifying state disaster emergencies includes epidemic and disease outbreak [id.] On March 7, 2020, Governor Cuomo issued Executive Order 202, which declared a state disaster emergency in connection with the novel coronavirus COVID-19. On March 20, 2020, the Governor issued Executive Order 202.8, which temporarily suspended a number of statutory provisions pursuant to Executive Law §29-a. The Governor issued Executive Order 202.8 based upon his determination that compliance with these statutory provisions will prevent, hinder, or delay action necessary to cope with the disaster emergency, and that the temporary suspension of these provisions is necessary “to facilitate the most timely and effective response to the COVID-19 emergency disaster.’ Therefore, consistent with “the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis,” Executive Order 202.8 temporarily suspends “any specific time limit for the commencement…of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law.” The People argue that Executive Order 202.8 tolls the time limit to commence any proceeding established under the Criminal Procedure Law. Therefore, the People argue that the CPL §180.80 time limit to commence a preliminary hearing has been tolled by Executive Order 202.8, and that the 120/144 hour time period will not begin to run while this temporary suspension remains in effect. Defendant argues that Executive Order 202.8 cannot be interpreted as suspending his right to a preliminary hearing because a defendant who is in custody has a constitutional right to a prompt review and probable cause determination of the felony complaint that has been filed against him. Defendant also argues that Executive Law §29-a only grants the Governor the authority to suspend state and local laws during times of disaster emergency, and that it expressly precludes the Governor from suspending constitutional rights. Therefore, Defendant argues that Executive Order 202.8 cannot be read as suspending the CPL §180.80 preliminary hearing time limit because the Governor lacks the authority to suspend a constitutional right. Defendant’s assertion that he has a constitutional right to a CPL §180.80 preliminary hearing relies upon County of Riverside v. McLaughlin, 500 US 44 (1991) and Gerstein v. Pugh, 420 US 103 (1975). In Gerstein, the Supreme Court held that “the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.” [Riverside at 47]. In Riverside, the Supreme Court held that, absent a bona fide emergency or extraordinary circumstances, a prompt judicial probable cause determination should be made no later than 48 hours after arrest [id. at 56-57]. The Criminal Procedure Law provides two levels of judicial review for a defendant who has been detained on a felony complaint without an underlying arrest warrant. The first level of review comes at the arraignment on the felony complaint, when the court must review the complaint for facial sufficiency [CPL §140.45]. By definition, this facial sufficiency review includes a judicial determination that the factual allegations contained in the felony complaint provide reasonable cause to believe that the defendant committed the charged crime [CPL §100.40(4)(b)]. If there has been no grand jury action and the felony complaint has not been otherwise disposed of during the 120/144 hour period following arrest, and the defendant remains in custody, the second level of review comes at the preliminary hearing. That second level of review grants the defendant the right to an adversarial hearing, and compels the People to present non-hearsay evidence establishing that there is reasonable cause to support a felony charge against the defendant [CPL §180.60]. Neither Gerstein nor Riverside vest a defendant with the right to a probable cause determination supported by non-hearsay evidence developed during an adversarial hearing. Rather, emphasizing that a defendant who has been charged with a felony is entitled to a prompt judicial probable cause determination, the Supreme Court has cautioned against combining a probable cause review with proceedings that will needlessly delay such a determination [id. at 58 ("Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process --- such as bail hearings and arraignments --- may be chosen")]. In New York, when a defendant is arrested without a warrant, that judicial determination comes at the arraignment on the felony complaint [CPL §§100.40(4)(b) and 140.45]. Here, that determination was made at Defendant’s March 30 arraignment, less than 12 hours after his arrest. Accordingly, Defendant’s constitutional right to a prompt probable cause determination was satisfied in strict compliance with Gerstein and Riverside, and Executive Order 202.8 has not interfered with those constitutional rights in any respect. The second level of review afforded by CPL §180.80 — the right to a preliminary hearing within 120/144 hours — is purely a creature of statute. Notably, the 120/144 hour period afforded for preliminary hearings far exceeds the 48-hour Riverside window, which effectively removes it from the list of proceedings that are viable candidates for combination with a Gerstein probable cause determination. This reinforces the inescapable conclusion that a CPL §180.80 preliminary hearing is not constitutionally mandated, but rather reflects a legislative determination that “a defendant, who still has a right to proof by non-hearsay evidence of reasonable cause to believe he or she committed an offense, is not held in custody on the basis of the hearsay felony complaint for an unreasonable period awaiting a determination by a Grand Jury on the basis of competent evidence.” [Preiser, McKinney's Practice Commentaries to CPL 180.80]. While this statutory right to a second level of review is based upon laudable principles, those principles — no matter how lofty — do not elevate this statutory right to a constitutional dimension. Rather, the right to a prompt preliminary hearing is purely statutory. As such, it is within the Governor’s power to suspend that statutory right during a state emergency disaster. Therefore, Executive Order 202.8 did not violate Defendant’s constitutional rights when it suspended the 120/144 hour time period contained in CPL §180.80. Defendant also argues that a preliminary hearing is not a proceeding that should be deemed to fall within the scope of Executive Order 202.8 because that interpretation would indefinitely suspend his right to a prompt preliminary hearing. However, there can be no question that CPL §180.80 “falls squarely within this Executive Order’s plain language; it sets a specific time limit (120 or 144 hours) for the commencement of a proceeding (the 180.80 hearing).” [People v. Hemmingway, File # CR 626-20 (Albany City Ct. March 24, 2020)]. The Court cannot look past the clear language of the Executive Order based upon Defendant’s fear that the prompt hearing will be postponed indefinitely. In any event, the Executive Order states that it shall remain in effect until April 19, 2020. While it remains eligible for thirty-day extensions upon reconsideration of the relevant facts and circumstances [Executive Law §29-a(2)(a)], it cannot be extended indefinitely. Rather, the Governor’s ability to temporarily suspend Defendant’s statutory procedural rights is tied directly to the COVID-19 emergency disaster. In addition, the executive branch’s power to temporarily suspend these statutory procedural rights is not unlimited, and can be terminated by concurrent resolutions of the New York State Senate and Assembly [Executive Law §29-a(4)]. Finally, even if Executive Order 202.8 did not temporarily suspend Defendant’s right to a preliminary hearing, the court may decline to issue a release order upon a good cause showing that there are compelling facts or circumstances that preclude disposition of the felony complaint within the prescribed time period, or rendered such action against the interest of justice. [CPL §180.80(3)]. Here, the People have shown good cause that Defendant should not be released. We live in unprecedented times. The COVID-19 pandemic has spread across the globe with lightning speed, wreaking havoc on the global economy and threatening to overwhelm public health systems. First responders, health care providers, essential manufacturers and service providers, and countless good Samaritans bravely stand on the front lines every day at enormous personal risk, tending to the sick and providing for the needs of us all. While scientists and researchers hunt for cures, treatments, and vaccines, government officials and infectious disease experts have developed a strategy to “flatten the curve” in an attempt to save countless lives. As we have come to learn, “self-isolation” is one of the cornerstones of that strategy. New York stands at the epicenter of this maelstrom. Recognizing that unprecedented times call for unprecedented action, the Chief Judge has limited statewide court operations to only those essential matters which so urgently require immediate attention as to justify breaking isolation, and thereby exposing court employees, law enforcement officers, attorneys, litigants and witnesses to the perilous risk of exposure, and the broader community to the risk of spread attending such exposure. There is no question that the steps that have been taken to temporarily limit court operations are extraordinary measures. But these are extraordinary times. And if ever there was a moment that called for extraordinary measures, this is that moment. On March 22, 2020 (i.e., two days after the Governor issued Executive Order 202.8), the Chief Administrative Judge of the Courts issued Administrative Order 78/20, effectively halting all court proceedings that do not involve “essential matters.” The list of essential matters accompanying AO 78/20 identifies five essential criminal matters: (1) arraignments; (2) bail applications, reviews and writs; (3) temporary orders of protection; (4) re-sentencing of retained and incarcerated defendants; and (5) essential sex offender registration act matters. Preliminary hearings are notably absent from this list of essential criminal matters. This omission appears to have been intentional. Specifically, the day before AO 78/20 was issued, the Deputy Chief Administrative Judge temporarily suspended the impanelment of grand juries as part of the court system’s effort “to help combat the spread of the coronavirus” [AO 77/20, dated March 21, 2020]. Having essentially eliminated a prosecutor’s ability to obtain an indictment within the statutory 120/144 hour period, it was eminently foreseeable that prosecutors would turn to preliminary hearings as a means of complying with their statutory CPL §180.80 obligations. Under these circumstances, the fact that preliminary hearings were not included on the AO 78/20 list of essential criminal matters appears to have been a purposeful decision to temporarily shut the door on these second-level probable cause review proceedings, in keeping with the Chief Judge’s concerted effort to limit statewide court operations to only those essential matters which so urgently require immediate attention as to justify the attendant risks of exposure and community spread. Therefore, even if Executive Order 202.8 does not temporarily suspend CPL §180.80. I am still declining to issue a release order in this case because the COVID-19 pandemic provides a compelling set of facts or circumstances that preclude disposition of the felony complaint within the statutory 120/144 hour time period [CPL §180.80(3)]. Likewise, I am declining to issue a release order because it would not serve the interests of justice [id.]. Finally, if Executive Order 202.8 does not temporarily suspend CPL §180.80, I find that the 120/144 hour time period is tolled for good cause shown until either the AO 78/20 restriction banning courts from hearing non-essential criminal matters has been lifted, or the Chief Administrative Judge’s list of essential criminal matters has been revised to expressly include preliminary hearings. The foregoing constitutes the decision and order of this court. Dated: April 4, 2020
