DECISION AFTER HEARING The defendant, Dannel Brown, is charged under Indictment #2020-064 with one count of Criminal Possession of a Controlled Substance in the Second Degree in violation of §220.18(1) of the Penal Law, two counts of Criminal Possession of a Controlled Substance in the Third Degree in violation of §§220.16(12) & (1) of the Penal Law, two counts of Criminally Using Drug Paraphernalia in the Second Degree in violation of §§220.50(1) & (3) of the Penal Law, Resisting Arrest in violation of §205.30 of the Penal Law, and Unlawful Possession of Marijuana in violation of §221.05 of the Penal Law. Defendant was arraigned before the Honorable Robert Freehill on March 23, 2020, whereupon Judge Freehill released the defendant on his own recognizance (“ROR”). Less than four months later, on July 15, 2020, defendant was arrested in the Town of Monroe and charged by way of Felony Complaints with one count of Criminal Possession of a Controlled Substance in the Second Degree in violation of §220.18(5) of the Penal Law, two counts of Criminal Possession of a Controlled Substance in the Third Degree in violation of §220.16(1) of the Penal Law, one count of Criminal Possession of a Controlled Substance in the Third Degree in violation of §220.16(5) of the Penal Law, and Criminal Possession of Marijuana in the Second Degree in violation of §221.25 of the Penal Law. Defendant also was charged with several non-felony charges. Defendant was arraigned in the Town of Monroe Justice Court, where the local court justice remanded the defendant without bail, based upon the justice’s belief that he was without jurisdiction to set bail. Presently, the People move pursuant to CPL 530.60(2)(b)(iv) for this Court to revoke the ROR order under Indictment No. 2020-064 and to fix bail on the same. The People further move to consolidate the bail revocation hearing under Indictment No. 2020-064 with a felony preliminary hearing on the July 15, 2020 arrest under Case No. 2020-6089. As to the July 15, 2020 matter, defendant moves pursuant to CPL 510.10 for release on his own recognizance or in the alternative, for reasonable bail. In opposition, the People move pursuant CPL 510.10(4)(t) for this Court to deem the felonies charged as “qualifying offenses” and to set bail. A hearing was held on July 23, 2020 to address the various applications made by each of the respective parties. Appearing for the People was Assistant District Attorney Neal E. Eriksen, Esq. of the Orange County District Attorney’s Office. Appearing for the defendant was Dennis McCormick, Esq. of the Legal Aid Society of Orange County, Inc. The People called two witnesses: Trooper Michael Piro and Investigator Francisco Madera, both of the New York State Police. Three exhibits were received into evidence on consent without objection: a one-page compliance report listing the discovery provided to the defendant, the grand jury testimony of Trooper Daniel Kokulak related to Indictment No. 2020-064, and a Fingerprint Response outlining the defendant’s criminal history. The defendant did not call any witnesses. EVIDENCE AT THE HEARING Trooper Michael Piro testified that while working on routine patrol, he observed a Nissan Maxima traveling on County Route 105. The vehicle had both a plate lamp and a tint violation. After initiating a traffic stop, he observed defendant as the driver and sole occupant of the car. He asked defendant to step out of the vehicle after detecting an odor of marijuana emanating from the vehicle. Trooper Piro initially conducted a search of the interior compartment of the vehicle, resulting in the recovery of.9 grams of raw vegetation, which he identified as marijuana, as well as 58.5 grams of edible marijuana. Both of these items were recovered from the center console. A search of the trunk resulted in the recovery of a backpack. Inside the backpack was 24.5 grams of mushrooms in seven separate packages stamped with the cartoon character Bart Simpson, 8.5 grams of MDMA in seventeen separate plastic bags, and 835 grams of edible concentrated cannabis. Field tests were conducted on the substances, and each was weighed on a digital scale properly calibrated and zeroed out prior to each item being weighed. Mr. McCormick established on cross-examination that the vehicle was registered to the defendant’s brother, that defendant had attempted to call his attorney prior to making a decision to exit the vehicle (his attorney was not available), and that the defendant declined to speak to the police in response to being read his Miranda Warnings at the police barracks. Investigator Francisco Madera testified that he was a member of the violent gang narcotics enforcement team. His TruNarc scan of the purported MDMA was inconclusive when done through the packaging, so he conducted a H kit scan after breaking a piece of the purported MDMA off from inside the package. The H kit scan on the substance was positive for MDMA. Based upon Investigator Madera’s training and experience, the weight of the mushrooms and MDMA, as well as the manner in which they were packaged were inconsistent with personal use, but were consistent with a person possessing the items with the intent to sell them. The grand jury testimony of Trooper Daniel Kokulak (Court Exhibit 2) established that the trooper conducted a traffic stop on a vehicle wherein defendant Dannel Brown was the driver and the sole occupant. The trooper detected an odor of marijuana, prompting a search of the vehicle, resulting in the recovery of a backpack containing approximately 116.5 grams of cocaine, 32 grams of marijuana, a scale, and numerous plastic bags. Based upon the trooper’s training and experience, the weight and the manner in which the drugs were packaged, coupled with the scale and plastic bags were consistent with a person possessing the items with the intent to sell them. The incident took place on February 22, 2020. The Fingerprint Response (Court Exhibit 3) outlining defendant’s criminal history reflected the following: (1) A 2018 conviction for a misdemeanor Criminal Possession of a Controlled Substance in the Seventh Degree; (2) A 2014 conviction for a felony Criminal Possession of a Controlled Substance in the Third Degree, which resulted in the defendant being sentenced to state prison and additional state prison on a parole revocation after initially being released from state prison to parole supervision; (3) A 2013 conviction for a felony Criminal Sale of a Controlled Substance in the Third Degree for which the defendant was sentenced to probation, but he was re-sentenced to 1 year incarceration after his probation was revoked based upon a founded violation of probation; and (4) A second 2013 conviction for a felony Criminal Sale of a Controlled Substance in the Third Degree for which the defendant was sentenced to probation, but his probation was revoked based upon a new conviction. Defendant also had a bench warrant issued in 2014. LEGAL ANALYSIS The People have moved for this Court to revoke the defendant’s ROR order under Indictment No. 2020-064 and to fix bail. In order for the court to do so, the People must establish by clear and convincing evidence that the defendant stood charged with a felony and, after being so charged, committed another felony while at liberty on the previously charged felony (CPL 530.60[2][b][iv]). The evidence at the hearing established by clear and convincing evidence that on July 15, 2020, the defendant was the driver and sole occupant of a motor vehicle that contained controlled substances that were packaged for sale. The defendant constructively possessed those substances. The evidence presented at the hearing established by clear and convincing evidence that the defendant committed multiple felonies of criminal possession of controlled substances with intent to sell the same, as well as a felony criminal possession of marijuana. His conduct on July 15, 2020 was committed while he was at liberty on the felonies charged under Indictment No. 2020-064. As such, this Court is authorized to revoke the ROR order and consider fixing bail under Indictment No. 2020-064. The bail modification/revocation hearing conducted under CPL 530.60 was properly consolidated with, and conducted at the same time as, a felony preliminary hearing under CPL 180.60 related to the new charges under Case No. 2020-6089 (CPL 530.60[2][c]). The standard of proof in relation to the felony hearing was reasonable cause to believe the defendant committed a felony (CPL 180.60[8]). The evidence presented at the hearing established reasonable cause to believe the defendant committed multiple felonies of criminal possession of controlled substances with intent to sell the same, as well as a felony criminal possession of marijuana. As such, the defendant is hereby held for the action of the grand jury (CPL 180.70[1]). While the evidence at the hearing established grounds for the court to consider revoking the ROR order and fixing bail under Indictment No. 2020-064, and it provided a proper basis to hold the defendant pending the action of the grand jury, the court still must evaluate any such potential bail in light of the recently enacted bail reform statutes. Those bail statutes require that a court “shall release the principal pending trial on the principal’s own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court” (CPL 510.10[1]). Bail only may be set on a principal who is charged with a “qualifying offense” (CPL 510.10[4]). CPL 530.60 provides a proper basis to revoke the defendant’s ROR order and fix bail under Indictment No. 2020-064, without the defendant being charged with a “qualifying offense.” However, it is a condition precedent to setting bail on the new charges under Case No. 2020-6089 that the principal be charged with a “qualifying offense.” A new provision of the bail statute that went into effect July, 2020 permits the court to set bail in the instant circumstances. The new provision provides that a defendant stands charged with a qualifying offense when he is charged with “any felony” or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant was released on his own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property (CPL 510.10[4][t]). In order for this provision to apply, the prosecutor must demonstrate there is reasonable cause to believe that the defendant committed the instant crime and any underlying crime. The statute specifically states that for the purposes of subparagraph (t), the underlying crimes need not be a qualifying offense (CPL 510.10[4][t]). This application under the recently enacted statute appears to be a case of first impression. Prior to the enactment of CPL 510.10(4)(t), when a defendant who was at liberty pending felony charges, thereafter was charged with another felony, the court was only authorized to set bail on the underlying felony case, the court was not permitted to set bail on the new felony charge unless the new felony charge was a qualifying offense.1 This would result in the defendant being released by one court on the new charges, only to be brought back before another court where his original charges were pending so that court could consider a bail revocation or modification. The enactment of CPL 510.10(4)(t) appears to comport with a larger statutory scheme of addressing public safety concerns by permitting judges to exercise discretion in setting bail on defendants who commit a felony or class A misdemeanor with certain aggravating circumstances while being at liberty on the same. Under those circumstances, those felony and misdemeanor crimes now are classified as qualifying offenses. Since the condition precedent to setting bail has been met under Case No. 2020-60892, the court must now determine whether the defendant poses a significant risk of flight to avoid prosecution, and if so, what are the least restrictive alternatives and the condition or conditions that will “reasonably assure” his return to court (CPL 510.10[1]). This Court is applying this same standard when considering bail on each of the respective cases. The statute requires that the court “shall consider” several factors in determining the kind and degree of control or restriction that is necessary to secure a defendant’s court appearance, including any “information about the principal that is relevant to the principal’s return to court” (CPL 510.30[1]). Specific examples include: the principal’s activities and history, the charges facing the principal, the principal’s criminal conviction record, the principal’s record of previous adjudication as a juvenile delinquent or a youthful offender, the principal’s previous record with respect to flight to avoid criminal prosecution, and if monetary bail is authorized, the principal’s individual circumstances and ability to post bail without undue hardship (CPL 510.30[1][a]-[f]). The principal (in the instant applications, the defendant) contends that he does not pose a significant flight risk, as he has spent the majority of his life as a resident of Orange County, or the adjoining County of Rockland. Despite being represented by the Legal Aid Society, defendant has indicated he would consent to a total of $30,000 cash bail. The People assert that the defendant is charged with a qualifying offense under Case No. 2020-6089, and his conduct while being at liberty on Indictment 2020-064 demonstrates that there are no non-monetary conditions that will reasonably assure his return to court and significant bail is necessary to secure the same on each of his pending cases. This Court has considered all the relevant factors enumerated in CPL 510.30 in determining the kind and degree of control or restriction that is necessary to secure this defendant’s court appearance. The defendant’s activities and history include three separate felony convictions, a parole revocation, two revocations of probation, and a bench warrant history. He is facing an Indictment for felony charges, including a class A-2 felony, which if convicted of the same requires a mandatory minimum state prison sentence of six years, coupled with five years of post-release supervision. Under Case No. 2020-6089, he is facing felony charges, including a class A-2 felony, which if convicted of the same requires a mandatory minimum state prison sentence of six years, coupled with five years of post-release supervision. Those sentences could run consecutive to each other. After considering such, this Court finds that the People have demonstrated to the satisfaction of this Court that the principal poses a significant risk of flight to avoid prosecution. Further, the least restrictive alternative and condition or conditions that will “reasonably assure the principal’s return to court” under Indictment No. 2020-064 include bail in the amount of $30,000 cash or $150,000 bond, or a $250,000 partially secured bond (at 10 percent). Further, this Court finds that, the least restrictive alternative and condition or conditions that will “reasonably assure the principal’s return to court” under Case No. 2020-6089 include an additional amount of bail in the amount of $30,000 cash or $150,000 bond, or a $250,000 partially secured bond (at 10 percent). Since this Court has determined that monetary bail is authorized and necessary in each of these respective cases, the defendant’s individual circumstances and ability to post bail without undue hardship has been considered as well. While no specific evidence was presented to the court, this Court notes that while the defendant is represented by the Legal Aid Society, he has not presented himself as being indigent or provided any proof of such. Quite the contrary, the defendant indicated that he would request a $30,000 cash bail, thereby indicating that the same was not unreasonable. A reasonable inference that could be drawn from his request is that the defendant could post a $30,000 cash bail. A defendant does not have a constitutional or statutory entitlement to a bail set that he can post, he “is entitled to an opportunity to make it in a reasonable amount” which is sufficient to “reasonably assure the principal’s return to court” (see Stack v. Boyle, 342 US 1, 10 [1951]; CPL 510.10[1]). The amounts set herein are reasonable amounts in three separate forms in each of his respective cases. The aforesaid constitutes the Decision and Order of the Court. Dated: July 24, 2020
