DECISION ORDER OF THE COURT Upon the papers submitted and the ecord made via remote appearance on May 26, 2020, the petition for a writ of habeas corpus and other relief is denied for the reasons that follow.1 Petitioner seeks release from detention at Manhattan Detention Complex (MDC) claiming his rights were violated when he did not receive a preliminary hearing under CPL 180.60 within the specified time frame under CPL 180.80. The Respondent, through the Queens District Attorney’s Office, oppose petitioner’s release. The People argue that they have shown the requisite threshold for a good cause delay under CPL 180.80 and Executive Order 202.28, which they interpret as the impossibility of impaneling a grand jury within 144 hours from the petitioner’s arrest, or in this matter, May 8, 2020, because no grand juries are being empaneled in Queens. The People’s argument is that if the time is suspended for the empanelment of grand juries for good cause under CPL 180.80, they have met their burden of establishing good cause for a delay in the proceedings under the statute. Background Petitioner Javial Davis was arrested April 29, 2020 and charged with PL 265.03(1)(B) Criminal Possession of a Weapon in the Second Degree, among other charges. The charges stem from a Criminal Court complaint which accuses petitioner of acting in concert with apprehended others to sell firearms between February 5, 2020 and April 29, 2020. The investigation involved an undercover detective, and ultimately, the seizure of more than six firearms, multiple high-capacity magazines, and several rounds of ammunition. Communications for all transactions were conducted through a combination of investigative techniques, including physical surveillance, intercepted text messaging and telephone calls, photos, and buys involving an undercover officer. Petitioner was arraigned on May 1, 2020, in Criminal Court and bail was set at $200,000 bond and $50,000 cash. Petitioner is currently detained under this securing order. On May 13, 2020, the Honorable Michelle Johnson of the Criminal Court of New York denied petitioner’s application for release. The Court held that the unavailability of grand juries due to the coronavirus epidemic constituted good cause not to release petitioner under section 180.80. Relevant COVID-19 Executive Orders and Chief Administrative Judge’s Memorandum On March 7, 2020, Governor Andrew Cuomo declared a state of emergency due to the public health threat posed by the rapid spread of the COVID-19 virus among the population of New York State.2 On March 13, 2020, the Honorable Lawrence Marks, Chief Administrative Judge, issued a memorandum on behalf of the Unified Court System. Judge Marks’ memorandum, effective March 16, 2020, mandated, inter alia, that “[n]o new grand juries be empaneled absent exceptional circumstances.”3 On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which, as is relevant to the issues in this case, directed that “any specific time limit for the commencement, filing or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of this state, including but not limited to the criminal procedure law…is hereby tolled from the date of this Executive Order until April 19, 2020.” On April 7, 2020, Governor Cuomo issued Executive Order 202.14, which extended EO 202.8 to May 7, 2020. On May 7, 2020, the Governor issued Executive Order 202.28, which extended the tolling provisions of Executive Orders 202.8 and 202.14 until June 6, 2020. EO 202.28, however, contained certain qualifications with respect to CPL 180.80. Specifically, the tolling of 180.80 was limited “to the extent that court must satisfy itself that good cause has been shown within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to Covid-19, which may constitute good cause pursuant to [Section 180.80(3)].”4 Discussion Under normal circumstances, section 180.80 of the Criminal Procedure Law allows a defendant to move for his release from custody where he is in custody from a felony complaint for more than 120 hours, or 144 hours if a weekend or holiday intervenes. The court can deny the application if prior to the application, a certification of a voted indictment is filed, or a grand jury directs the filing of a prosecutor’s information. CPL 180.80 (2). Release may be denied even if either one of the conditions of subsection 2 are not met but the People show good cause why the order of release should not be issued. “Such good cause must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.” CPL 180.80 (3). In this instance, the governor’s executive orders had and have the effect of suspending many litigation deadlines, including those in the Criminal Procedure Law. These times in which we presently live constitute anything but “normal” circumstances. The entire world is in the midst of a health crisis due to the COVID-19 pandemic. The United States was not to be spared from the crisis. And New York City is at the epicenter of this pandemic, being the greatest afflicted per capita area in the United States. As of May 27, 2020, there were a recorded 197,351 New York City residents infected with COVID-19, resulting in 51,380 hospitalizations and 16,610 deaths.5 To stop the spread of the virus, New York State declared mandatory stay-at-home measures, closing schools, businesses, and courthouses, all but essential services. Despite the inability to convene grand juries under Judge Marks’ Administrative Order, the courts remained open for essential and emergency matters — via video conference. All parties, including the judge, prosecutor, defense counsel, defendant, and court reporter, appeared by video conference for arraignments. In Supreme Court, judges ruled on emergency applications such as bail writs and writs of habeas corpus, arraigned defendants on filed indictments, and even took pleas on the consent of the parties. It is in these extraordinary times, where the courts and the litigants are overcoming obstacles presented by working via video conferencing, that this court is presented with the instant petition. Petitioner, who has been in custody on a felony complaint since his arrest on April 29, 2020, seeks release pursuant to section 180.80. Petitioner states that the People have failed to establish good cause for his continued detention because the People have failed to file a certificate of a voted indictment or hold a preliminary hearing. In support of his application for release, petitioner first argues that EO 202.8 and 202.14 did not suspend the time provisions of section 180.80. This Court disagrees with petitioner’s interpretation of these Executive Orders. In this Court’s opinion, executive Orders 202.8 and 202.14 extended the tolling deadline of CPL 180.80 for the purpose of reducing traffic in the state’s courthouses. The continued detention of petitioner is justified for what would be a release-eligible violation under non-pandemic conditions. The reasoning of the trial courts and the Appellate Division which so held is still applicable. See, e.g., People ex rel Nevins v. Brann, __Misc3d__ (Sup. Ct. Queens County, April 13, 2020) (“Executive Order 202.8 effectively forestall(ed) that consequence [of petitioner's release], during a time when prosecutors are unable to take the steps that section 180.80 requires.”). The Second Department also recognized the need to suspend deadlines in light of the health crisis and held that the “People have demonstrated that Executive Order 202.8 temporarily suspends the operation of CPL 180.80.” People ex rel Mulry v. Franchi, __AD3d__, 2020 NY Slip Op 02387 (2d Dept. 2020). As a result, only Executive Order 202.28, which began on May 8th, is relevant to the instant petition. The People’s contention that Executive Order 202.28 automatically continues the tolling provision of section 180.80 is incorrect. Rather, EO 202.28 modifies it, and requires that the court be satisfied that the People have established why defendants in custody for more than 144 hours from May 8, 2020 should not be released. In this regard, by a decision dated May 13, 2020, the Criminal Court declined to release petitioner, finding that good cause had been established because no grand juries were being empaneled in Queens. This Court is not a “reviewing appellate court,” and may only determine whether the criminal court’s decision was supported by the record. See People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501-02 (1969) (habeas court’s review is not that of an appellate court). This Court may narrowly review the Criminal Court’s order for whether any constitutional or statutory requisites were violated. See People ex rel. Payne v. Fludd, 171 A.D.3d 776 (2d Dept. 2019). The instant Criminal Court’s order is supported by the record and does not violate any Constitutional or statutory provisions. Indeed, petitioner has not had his liberty interests removed, rather, because of the current health crisis, they have been temporarily suspended. Due process entitlements are found in the 14th Amendment to the United States Constitution. Petitioner’s substantive due process rights have not been violated because there has been no action that “shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (internal citations omitted). The detention of the petitioner is due to a global pandemic and the need to adapt procedures accordingly under the Governor’s recent order, which allows for the delay of proceedings under CPL 180.80. Procedural due process affords a person an opportunity to be heard “at a meaningful time and in a meaningful manner” when the government attempts to deprive him or her of life, liberty, or property. Hamdi v. Rumsfeld, 542 US 507, 533 (2004). In the instant case, the petitioner argues his due process was violated procedurally when no preliminary hearing was conducted within the statutory time mandated and without a showing of good cause, specifically directed at the need for a preliminary hearing. Petitioner’s procedural due process rights have not been violated because he was not prevented from making his argument. The delay beyond the 144 hours for a preliminary hearing specified in the statute is justified and falls under the rubric of “good cause.” Thus, in addition to deferring to the criminal court’s decision that good cause exists to delay proceedings under 180.80 because of an inability to impanel a grand jury, this court also finds the same reasoning applies to the inability to conduct a preliminary hearing. During these extraordinary times, good cause delay to conduct preliminary hearings may be established due to the new process of setting up and working out the manner in which hearings are conducted as a result of the present health crisis. Issues previously thought routine and commonplace have become complex. The normal delays which occurred when courts were fully functional have multiplied. Indeed, despite the closing of the courthouse in March due to the COVID-19 pandemic, virtual access to the courts has been available for arraignments and all emergency matters. Further, with the advent of the Governor’s Executive Order 202.28, Queens County Criminal Court implemented two (2) dedicated court parts for plea dispositions and preliminary hearings. The court also established procedures to apply for virtual preliminary hearings.6 The procedure provides an email address, by which defense counsel can make a request of both the court and the People for a preliminary hearing, the People can respond, and the court issues a decision either granting or denying a good cause extension, if requested, within the applicable 144 hours. Once a preliminary hearing has been scheduled by the Central Administrative Scheduling Team, all parties receive a Skype invitation, at least two (2) business days in advance of the hearing, including presiding judge, assigned ADA, assigned defense attorney, court reporter, and court interpreter as needed. See (QCCC’s Virtual Preliminary Hearing & Good Cause Application Protocols & Procedures). The Criminal Court’s ability to conduct virtual hearings, however, is limited by the available technology and the coordination involved among the various parties. Scheduling a virtual hearing requires planning between the Department of Corrections (DOC), the defense counsel, the prosecutor, the judge, the clerk, and the court reporter. DOC has limited booths for teleconferencing so detainees must appear virtually on a predetermined schedule. Defense counsel is provided time to conference with the client before the start of the hearing. Further complicating coordination is that detainees are held in different facilities. Holding virtual hearings also requires manpower to determine the appropriate participants and their contact information, pull the court file and scan pertinent information, receive documentary evidence and Rosario material from the parties, schedule the appearances and distribute the documents, as well as coordinating the witnesses and defendant’s appearance with the Department of Corrections. The final scheduling of preliminary hearings, particularly scheduling defendant’s appearance, must be achieved through the Central Administrative Scheduling Team. See (EO 202.28 CPL 180.80 Application and virtual Preliminary Process May 8, 2020. [Revised]). Nevertheless, Queens Criminal Court has implemented measures to provide preliminary hearings for about 40 defendants7 since EO 202.28 was issued. Conducting virtual hearings, however, will require extra time beyond the 144 hours provided for in section 180.80, as it has in this case. Indeed, the extraordinary circumstances of the global pandemic has created a backlog of cases which could not be indicted. Preliminary hearings on those cases also could not be held until the ban on virtual hearings was lifted and the necessary technology was installed. The volume of the cases and the coordination required would make it nearly impossible to conduct preliminary hearings in all cases within 144 hours. Whether to find good cause for delays pursuant to by the COVID-19 pandemic must be determined on a case by case basis. In this Court’s opinion, the inability to conduct hearings until EO 202.28 lifted the ban on virtual hearings and the sudden need to install technology in the courthouse and detention facilities establishes good cause as to why a preliminary hearing has not been held within 144 hours of petitioner’s arrest. The particular facts and circumstances of this case also provides good cause for the People’s inability to timely conduct a preliminary hearing. The instant case involves a months long investigation by an undercover detective. The People have expressed concern regarding the safety of the undercover should his identity be revealed in a preliminary hearing because the undercover is still active in the area. See generally People v. Garay, 25 N.Y.3d 62 (2015) (Courtroom properly closed after Hinton hearing because testifying in open court would comprise the effectiveness of the undercover officers). The People’s need to protect the undercover detective’s identity in the least restrictive manner possible, therefore, establishes good cause to delay the proceedings. See generally People v. Reddick, 164 A.D. AD3d 526 (2d Dept. 2018). Since the oral arguments on this writ, the Court has been informed by the parties that they have discussed the best way for the People to provide Rosario and other discovery to petitioner’s counsel. The People have informed the Court that several steps have been taken to schedule a preliminary hearing.8 The prosecutor has apparently contacted members of her office in an attempt to figure out the logistics of conducting a hearing involving an undercover detective and is attempting to schedule a hearing with the court. These concerns and efforts by the People also contribute to the finding of good cause. In this case, therefore, the need to reduce courthouse traffic, the inability to impanel grand juries, the obstacles presented to conduct virtual hearings, and the need to determine how to best protect an undercover detective and information concerning him or her in evidence to be given to defense all provide good cause under CPL section 180.80. Finally, although the court finds that good cause has been established for petitioner’s continued detention for now, good cause based on the conditions due to COVID-19 may not be available indefinitely. Petitioner is entitled to due process and cannot be detained until the current health crisis is over. Certainly, the health crisis created by the COVID-19 pandemic still exists, but the many obstacles preventing the People from conducting preliminary hearings are being addressed.9 For the reasons stated, the petition for a writ of habeas corpus and the application for bail modification is denied. Dated June 4, 2020
