This case requires the Court to determine whether the defendant and the victim — who are neither related nor have had any discernible domestic relationship in the traditional sense — meet the criteria for being members of the “same family or household” so as to render the defendant eligible for bail under the new bail statutes (see CPL §510.10 [4] [k]). For the reasons that follow, the Court concludes that they do. Integral to the 2019 bail reforms in the concept of the “qualifying offense.” These offenses are intended to bridle a court’s discretion, so that, unless a crime constitutes a statutorily designated qualifying offense, courts cannot set bail, no matter how great the risk that a defendant will not return to court (see CPL §510.10 [4]). In some cases, however, the crime in question is not a qualifying offense per se, like murder or kidnapping. Rather, in this subset of cases, the crimes must, in addition to being designated by statute, be committed in some specifically prescribed scenario, such as the burglary committed in the actual “living area” of a dwelling or the felony committed by the recidivist (see CPL §510.10[4][a] and [s]). As relevant to this case, this subset also includes crimes that must be directed at a member of the defendant’s “same family or household” as defined in CPL §530.11(1) (see CPL §530.10[4][k]). To determine if these crimes constitute a “qualifying offense”, courts must confront the myriad ways in which “families” have constituted themselves across the State. That is the challenge presented here. A second challenge is how — or, more specifically, what procedures or evidence is required — to answer the first. In other words, does resolution of the “qualifying offense” question require a hearing? And, if so, what kind of evidence and standard of proof is required? The answer depends on the facts of the case. Briefly, they are as follows. On the morning of November 19, 2020, the defendant allegedly strangled the victim after she saw him growing enraged while changing her one-year old son’s diaper. Based on the ensuing altercation, the defendant was charged with Criminal Obstruction of Breathing for strangling the victim (see PL §121.11) and Endangering the Welfare of a Child (PL §260.10). He was arraigned later that day. Ordinarily, the charges would not have rendered the defendant eligible for bail because they are not “qualifying offenses” per se under the bail statutes. However, Criminal Obstruction of Breathing is one of the select crimes that can rise to the level of a “qualifying offense” if it satisfies the additional requirement of having been directed against a member of the defendant’s same “family or household” (see CPL §510.10[4][k]). Specifically, CPL §510.10(4)(k) includes, as a qualifying offense: “criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, strangulation in the second degree as defined in section 121.12 of the penal law or unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, and is alleged to have committed the offense against a member of the defendant’s same family or household as defined in subdivision one of section 530.11 of this title.” In order to determine whether Criminal Obstruction of Breathing was a qualifying offense, the Court initially reviewed the accusatory instruments and supporting depositions for evidence bearing on the “same family or household” requirement. However, the depositions revealed only that the alleged victim lived with the defendant, but was not his girlfriend, family member or sexual partner. If there were nothing more, of course, then this case would be easy to resolve: the defendant and the victim (the parties) would not be members of the “same family or household”, and, as a result, bail could not be set. But the depositions hinted at a relationship beyond that of the casual friend or roommate. Hence, the need for a hearing to assess the dynamic of the parties’ relationship. That hearing was held shortly after the defendant’s arraignment, at which the arresting officer was called as a witness. The officer testified that the defendant lived on the second-floor apartment of 32 Hart Street in the City of Cohoes with the victim, her child, and the victim’s girlfriend. According to the officer, the apartment was relatively small, with two bedrooms — one for the defendant, the other for the child — as well as a third makeshift bedroom contrived out of what should have been the living room area. The officer went on to note that the parties had lived at the Hart Street flat for eight months, but had lived together at another location prior to that, and had known each other for a significant period of time. Although not related, the parties saw each other daily and trusted one another. In fact, the defendant was charged with the care of the victim’s child, watching him at least five days a week, and at other times, as needed. Based on this evidence, the Court was required to determine whether the parties satisfied the “same family or household” requirement so as to render the underlying charge baileligible. At first blush, the definition of “same family or household”, found in CPL §530.11, did not seem to be much help. To the contrary, with its focus on the more traditional family make-up — such as the persons who are related by consanguinity or affinity; legally married spouses; former spouses; and unmarried persons with a child or children in common (see CPL §530.11[1][a]-[d]) — CPL §530.11(1) did not appear to offer a definition of “same family or household” that would have embraced the unique circumstances of this case. However, a more expansive definition of “same family or household” is found in CPL §530.11[1][e]. That subdivision, which was added in 2008, expanded the definition of “same family or household” to encompass “persons who are or have been in an intimate relationship” regardless of whether or not they were related or had a current or prior sexual relationship (see CPL §510.30[1][e] (emphasis supplied); Mtr. of Jose M. v. Angel V., 99 AD3d 243 [2nd Dep't 2012]). This broader definition of “same family or household” is clearly flexible enough to accommodate the parties in this case. Specifically, CPL §530.11(1)(e) is intended to cover persons who are neither related by consanguinity or affinity, nor have been involved in a current or prior sexual relationship, but not so loose as to include the passing acquaintance or those engaged in “ordinary fraternization”. Between these two extremes, the Legislature left the issue open-ended, leaving if for “the courts to determine on a case-by-case basis what qualifies as an ‘intimate relationship’” (see Mtr. of Seye v. Lamar, 72 AD3d 975 [2nd Dep't 2010]). Towards that end, the Legislature suggested that three non-exclusive factors be considered. These include (1) the nature or type of relationship, regardless of whether the relationship is sexual in nature; (2) the frequency of interaction between the persons; and (3) the duration of the relationship.” (CPL §530.11[1][e]). Several courts have applied these factors in the context of Family Court proceedings. In Mtr. of Jose M. (id.), for example, the Second Department was called upon to interpret the Family Court Act’s definition of “same family or household”, which tracks the definition found in CPL §530.11(1) (see Family Court Act §812). At issue in Jose M. was whether the Family Court could adjudicate a case of child abuse lodged against the live-in boyfriend of the victim-child’s mother. The resolution of the issue depended on whether the boyfriend had an “intimate relationship” with the child so as to bring them within the scope of the “same family or household”. The Second Department concluded that it did, reasoning that the boyfriend had been a “quasi parent” to the abused child despite having no other familial connection to him. While not directly on point, Jose M. is persuasive authority, given the facts of this case. Specifically, like that of the boyfriend and child in Jose M., the relationship between the defendant and the victim in this case falls between the two poles established by CPL §530.11 (1) (e). To be sure, there is no evidence that the defendant was related to, or had a sexual relationship with, the victim — a fact, it should be noted, that the statute has explicitly demoted to non-determinative status (see CPL §530.11 [1] [e]). On the other hand, the parties have known each other for a significant period of time and have had frequent and daily interactions. More importantly, the nature of their relationship is substantial. Far from being a mere roommate, the defendant has taken care of the victim’s one-year old son on a daily basis, as described above. Clearly, the parties, by their own actions, manifested an intimacy of relations that, while defying traditional notions of “family” or “household”, nevertheless evince a relationship of profound substance. In any other context, the defendant would be described as a “quasi step-parent” to the victim’s son (see Jose M., [id]), and the entire household to which they belong, a “family.” This is precisely the sort of non-traditional arrangement that the 2008 amendments to CPL §530.11 (1) were designed to accommodate (see Sponsor’s Mem, Bill Jacket, L 2008 ch 326) It also, by logical extension, covers the type of crimes that the bail statutes intended to make qualifying offenses through their incorporation of the “same family or household” concept set forth in CPL §530.11 (1) (see CPL §510.10 [4] [h] and [k]; see also CPL §510.30 [g]). Indeed, when considering the factors set forth in CPL §530.11 (1) (e), the Court is led to the inescapable conclusion that the defendant’s relationship with the victim must fall under the definition of “same family or household” so as to make the underlying offense — Criminal Obstruction of Breathing — a qualifying offense for purposes of bail (see CPL §510.10 [4] [k]). Put another way, there is no greater trust that one can repose in another than entrusting to them the care of one’s child, and the meaning of “same family or household” must account for that. That leaves for resolution the second challenge presented by this case — the procedures to be employed in making the “qualifying offense” determinations in the first place. This second challenge can be addressed into two parts. First, does the Court have the authority to convene a hearing — as it did here? And, second, if so, what standard of proof should be used? Turning to the first question, the Court notes that CPL §510.10 [4] is largely silent on the subject of a hearing. However, it is impossible to ignore that a hearing is implied in CPL §510.10(4)(k) as a necessary incident to determining whether a crime is a “qualifying offense” — in fact, in this case, a “qualifying offense” could not have been determined without an evidentiary hearing. Under the circumstances, it is clear that the rules of statutory construction must afford some leeway in effectuating the legislative intent, despite the generally applicable proscription against using construction to cure an omission in a statute. (See Statutes, §364; see also see Stief v. Hart, 1 NY 20 [1847]). It was, in other words, incumbent on the Court, under the circumstances of this case, to have either convened the evidentiary hearing, or invalidated the statute by its inaction. The Court chose to do the hearing. In this regard, it should be noted that the legislative silence on the issue of evidentiary hearings is not dispositive. Courts do not require leave from the Legislature, whether express or implied, to conduct hearings. Instead, courts retain the inherent power to “manage (it’s) own affairs so as to achieve the orderly and expeditious disposition of cases” (see Link v. Wabash, 370 US 626, 630-631 [1962]), including “those reasonable and necessary steps [required] to enable it to perform efficiently the judicial function for which it has been constituted” (People v. Green, 170 Misc 2d 519, 531 [Bronx Co. Sup. Ct. 1996]). That means, as relevant here, the power to fill in any “gaps of express law and to respond to problems, especially evidentiary and procedural, that come up in carrying out their adjudicative duties” (id., at 523-524, qtg. Felix F. Stumpf, Inherent Power of the Court, at 37 [National Judicial College 1994]). This includes the power to convene hearings to resolve factual disputes (see id.). The same inherent authority also enabled the Court to devise a suitable standard of proof — the second procedural question raised above. That, too, was required because of the silence of CPL §510.10 [4] [k]. Fortunately, another of the qualifying offenses — this one dealing with a crime involving harm to an identifiable person or property committed while the defendant was at liberty on a similar offense — identifies “reasonable cause” as an appropriate standard of proof (see CPL §510.10[4][t]); see People v. Brown , 69 Misc 3d 229 [Orange Co. Ct. 2020]). By analogy, that benchmark seems apt here. But it is more than analogies that compel the Court’s conclusion here. “Reasonable cause to believe” is the standard by which the sufficiency of all substantive crimes is measured ((see CPL §100.40 (sufficiency of informations and complaints) and CPL §190.65 (Indictments)). And, aside from containing an additional element that is appended by the bail statutes, that is precisely what a “qualifying offense” is — a substantive offense with an extra requirement. As such, it is appropriate to employ the same standard used in assessing the sufficiency of the underlying substantive crime — the standard of “reasonable cause to believe” — to the Court’s “qualifying offense” determinations. It is the simple, and obvious solution. Moreover, as a practical matter, the Court notes that the statutory definition of “reasonable cause to believe” permits the use of hearsay evidence unless otherwise provided — meaning that courts, in the often harried environment of an arraignment part, may rely on hearsay statements contained in supporting depositions to make its qualifying offense determinations (see CPL §70.10[2]). In other words, courts need not always conduct a full-fledged hearings with testimony and witnesses, as was required under the circumstances present here (see e.g., People v. Garcia, 67 Misc 3d 511 [NY Crim. Ct. 2020](hearing not required under CPL §530.60 to determine whether bail could be set on a defendant at liberty on a qualifying offense). In many cases, a simple review of accusatory instruments and depositions should be enough.1 In any event, the “qualifying offense” determination having been made, the Court turns next to the issue of bail. The Court is mindful of the factors set forth in CPL §510.30 for setting bail, including, as pertinent here, the charges facing the defendant, his prior criminal record, his activities and history, and his limited financial resources (see CPL §510.30[1][a], [b], [c] and [f]). The Court is also aware of the mandate to abide by the least restrictive method for ensuring the defendant’s return to court (CPL §510.30[1]). However, evidence of the defendant’s three prior felony convictions and prior probation delinquency convinces the Court that bail is the least restrictive method for securing the defendant’s return to Court notwithstanding other factors militating in favor of his release on lesser restrictions. Therefore, the Court, bearing in mind the defendant’s limited financial circumstances, sets bail in the amount of $1,000.00 cash, $1,000 insurance company bond, and $2,000.00 partially secured surety bond with a 10 per cent deposit. The foregoing shall constitute the Decision and Order of the Court. Dated: November 24, 2020
