I, Andrew Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution of the Laws of the State of New York, hereby find…that a disaster is impending in New York State…and I do hereby declare a State disaster emergency for the entire state of New York…until September 7, 2020. Executive Order, No. 202, March 7, 2020. We have therefore made the assessment that COVID-19 can be classified as a pandemic. Statement of Director-Counsel of the World Health Organization, March 11, 2020. In accordance with the Directive of the Chief Judge of the State of New York to limit court operation to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as provided for by the procedural laws of the state, including, but not limited to, the criminal procedure law…is hereby tolled…until April 19, 2020. Executive Order 202.8, March 20, 2020. Pursuant to authority vested in me, in light of the emergency circumstances caused by the continuing COVID-19 outbreak in New York State and the nation…I direct that, effective immediately and until further notice, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters annexed as Ex. A. Chief Judge Janet DiFiore, Administrative Order, AO/78/20 dated March 22, 2020. Exhibit A…Essential Proceedings…(A) Criminal matters: (1) arraignments, (2), bail applications, reviews and writs, (3) temporary orders of protection, (4) resentencing of retained and incarcerated defendants, (5) essential sex offender registration act (SORA) matters. Chief Judge Janet DiFiore, Administrative Order, AO/78/20 dated March 22, 2020 On March 25, 2020, petitioner was arraigned before a local criminal court judge on a felony complaint charging him, inter alia, with Assault in the Second Degree. Penal Law §120.05. This is a violent felony and a qualifying offense, CPL 510.10(4), and bail was set by the arraignment judge. Petitioner has not posted that bail. He has moved via writ filed on March 31, 2020, for his immediate release from custody. The People filed a written response, and the City, via the Law Department, submitted initial documents. Petitioner’s attorney, a Bronx County Assistant District Attorney, and an attorney for the City, all appeared before me in open court, via video on April 1, 2020. This Court held the final decision on the application in abeyance pending the receipt of medical records relating to the petitioner’s care while he has been held in jail. However, the writ raised significant non-medically related due process arguments that, if this Court were to find them valid, would entitle petitioner to immediate release. This Court has considered those nonmedical arguments and issues this interim decision relating to those grounds only. It denies the application for release on those grounds, as explained below, but continues to hold the final decision in abeyance pending further submissions involving petitioner’s medical condition and treatment. Petitioner initially raises legal and constitutional challenges to his continued confinement that have nothing to do with his health but have everything to do with the monumental COVID-19 health crisis. He does not argue that his bail is excessive, or that the arraignment judge abused her discretion in setting it. He does not seek review of the bail itself. His challenge via this writ is that he is entitled to immediate release on several grounds. First, he argues that because the CPL 180.80time has passed, and he is not indicted, he is entitled to release by operation of law because he claims Executive Order 202.8 does not apply to 180.80 release deadlines. Second, he argues that a judge of the criminal court denied his access to court when he requested that the case be calendared so he could make his 180.80 release application before a judge of that court, and also to demand a preliminary hearing under CPL 180.10. In a related argument, he claims that, even if Executive Order 202.8 does suspend statutory 180.80 deadlines, his continued confinement violates due process because there has been no judicial finding via the preliminary hearing route of holding him for grand jury action. Fourth, he argues that he is entitled to immediate release due to personal health concerns and the prevalence of COVID-19 in his jail facility. It is a decision on this fourth ground that is held in abeyance. Petitioner does not argue that the governor lacked any authority under Executive Law §§29- a and 29-b to suspend CPL 180.80 or other procedural deadlines in the Criminal Procedure Law. Simply put, he does. See People v. Bey, 44 AD3d 1065, 1066 (2nd Dept 2017); People v. Fuller, 8 AD3d 204, 205 (1st Dept. 2004); People v. Haneiph, 191 Misc 3d 738, 742-43 (Crim. Court Kings County 2002). While counsel is correct that Executive Order 202.8 does not mention CPL 180.80 in its text, it also does not mention CPL 30.10 (statute of limitatons), or CPL 30.30 (speedy trial), or CPL 255.20 (filing of pre-trial motions), or CPL 460.10 (time to take an appeal), or any other specific statute from the myriad of statutes that have time and action limitations imposed under the Criminal Procedure Law, whose time limits are also suspended. This Court does not find that the Governor needed to be so specific. The language of this order sweeps up every procedural time limit imposed in the Criminal Procedure Law and packages them in a broad order that is easy for a court to interpret. The words chosen and the time limits suspended are implicated in each and every one of the statutes at issue in this writ. For example, even if grand juries were being empaneled, and the People could meet the deadline imposed to vote an indictment, the People still have to “file with the court a written certification that an indictment has been voted.” CPL 180.80 (2)(a). The filing of such a document divests the lower courts of jurisdiction to provide over the matter and essentially “commences” the prosecution in the Supreme Court. In terms of a preliminary hearing, a judge must file an order that results in holding a defendant in custody for grand jury action and “promptly transmit to” the Supreme Court the order itself. CPL 180.70(1). The specific language of Executive Order 202.8 tolls the time for doing all of this. Petitioner’s due process rights have not been violated by the criminal court’s refusal to calendar this case for making a CPL 180.80 release application. Such an application is not part of the “emergency” situations covered in the Chief Judge’s operational order. This order has not denied petitioner due process by preventing him from making an argument for his release from custody. He is being afforded due process because this argument is being considered, and properly so, in the adjudication of this writ. His right to be heard remains; the forum and mechanism has been changed because of the very emergency that has hit the entire state, and its citizens, in unprecedented ways. His access to court has neither been denied, nor significantly delayed. Petitioner states that his 180.80 period would have expired at 9:35 p.m. on March 31, 2020; this writ was calendared and heard in Court hours later, on the morning of April 1, 2020. When petitioner was arraigned, the judge did not set a 180.80 date, and adjourned the case until April 28, 2020.1 Petitioner was arraigned by an attorney not affiliated with the Bronx Defenders, who now represent him. It is not known if that attorney raised a challenge to the date selected by the criminal court judge. Nonetheless, this Court does not find that an arraignment judge needs to calendar any case for a 180.80 compliance date because the Executive Order suspends that time and that adjournment for that purpose would be a drain on the emergency operations in place for that court. In terms of his due process argument relating to the lack of a preliminary hearing, it is correct that the petitioner has not been afforded an opportunity to have a judge consider nonhearsay evidence subject to cross-examination and possible testimony under CPL 180.60. However, it is incorrect to say that he is being held in in the absence of any judicial finding of probable cause. That finding was, and had to be made, at the time of the defendant’s arraignment on the felony complaint. CPL Section 140.45; See People v. Hernandez, 98 NY2d 8, 10 (2002). That complaint is not before this Court and counsel makes no challenge to the sufficiency of that felony complaint. However, by law, at every arraignment, the judge is required to inspect the accusatory instrument to ensure that there is reasonable cause to continue the case past that stage, whether for conversion of a criminal court complaint to an information via a supporting deposition or other required documents, or to hold a defendant for grand jury action or preliminary hearing. See People v. Machado, 182 Misc 2d 194, 194-95 (Sup Court Bronx County 1999). The grand jury process is constitutionally essential for the case to proceed to trial; the preliminary hearing process provides a procedural mechanism to hold a defendant in custody on a felony complaint prior to trial. The grand jury as well as a judge at a preliminary hearing each must make reasonable cause determinations for the case to proceed from that point. The reasonable cause determination made by an arraignment judge provides due process protections and prevents a defendant from being held in custody awaiting indictment on less than reasonable cause. See County of Riverside v. McLaughlin, 500 US 44, 56-57 (1991). That is the same standard upon which defendants can be held in custody post-indictment. Therefore, based on the unchallenged finding by the arraignment judge that the allegations in the felony complaint provided reasonable cause, the Court finds due process is satisfied and the lack of an indictment or a preliminary hearing at this time does not constitute a due process violation for this petitioner. A ruling on the petitioner’s argument that he is being deprived of due process by being held in a jail facility where there is a risk to his health is held in abeyance pending the submission of medical records from the New York City Department of Corrections. Petitioner is 30 years old, and states he suffers from asthma. His attorney has not been able to schedule a video visit with her client because it appears that DOCCS does not have this capability at this time. This Court has signed a subpoena directing DOCCS to provide her client’s records. Petitioner also alleged that he was not receiving any medical treatment while in custody, but the Court is satisfied based on initial information provided by the City’s attorney that the defendant has been seen by medical personnel while he has been in custody on more that one occasion. The Court is also satisfied that the City has set up protocols for isolating and treating any seriously ill inmates. Nonetheless, it is important to know whether this petitioner’s personal medical situation requires a legal remedy. This Court will continue to receive and review all the information as it comes in relating to this part of the application and will rule on this part of the writ when those records are received or the Court receives any other information relevant to defendant’s medical condition. However, in terms of the legal arguments for release based on due process, CPL 180.10, 180.60. 180.70, 180.80, Executive Order 202.8, and the Chief Judge’s Operational Order, the writ is denied. Dated: April 2, 2020
