This matter comes before the Court pursuant to defendant Sabrina Keitt’s application for a bail hearing and an order releasing defendant on her own recognizance1. Defendant was charged in the Town of Rockland Justice Court by way of Felony Complaint with Criminal Possession of a Controlled Substance 3rd: narcotic drug with intent to sell, pursuant to Penal Law §220.16[1]; and Criminal Sale of a Controlled Substance 3rd: narcotic drug, pursuant to Penal Law §220.39[1]. Defendant was arraigned on the foregoing charges on January 26, 2021, in the Rockland Town Court and bail was set at $50,000 cash, $100,000 insurance company bond or $100,000 partially secured appearance bond, upon the basis that it is alleged that the crime caused the death of another person pursuant to CPL §510.10[4][j]. The People appear and oppose defendant’s application. In 2019, legislation was passed in New York State reforming the bail law, the changes went into effect on January 1, 2020 and, essentially, eliminated a Court’s discretion and ability to set monetary bail for almost all misdemeanors and non-violent felonies, while still permitting that monetary bail can be set in most violent felonies. Initially, the Legislature did not include the provision at issue in this case, to wit: CPL §510.10[4][j], and that provision was added after significant criticism of the bail reform law and the mandatory release of individuals charged with crimes that resulted in the deaths of other people (see generally Senators Propose to Give Judges More Discretion in Tweak of New Bail Reform Law, NYLJ, Feb. 13, 2020). The legislature, as a result of significant criticism, amended the extensive reforms in April of 2020, those amendments, effective on July 2, 2020, setting forth additional charges and situations which would constitute a qualifying offense and grant the Court the discretion to set monetary bail or detention of a defendant in a particular matter and added, as relevant to this case, CPL §510.10[4][j]. The Legislature also added a number of other qualifying offenses as a result of these amendments. See generally CPL §510.10[4] (“The 2020 amendments by ch 56, §2 (Part UU), rewrote 4(a) and 4(d); added “a sex trafficking offense defined in section 230.34 or 230.34-a of the penal law, or” in 4(e); added “money laundering in support of terrorism in the third degree as defined in section 470.22 of the penal law; money laundering in support of terrorism in the fourth degree as defined in section 470.21 of the penal law” in 4(g); substituted “title” for “article” at the end of 4(h); added “promoting an obscene sexual performance by a child as defined in section 263.10 of the penal law or promoting a sexual performance by a child as defined in section 263.15 of the penal law” in 4(i); added 4(j) through 4(t)” (LEXIS Amendment Notes CPL §510.10). Pursuant to New York’s bail reform law, a Court only has authority to set monetary bail if a defendant is charged with a “qualifying offense” (see CPL §510.10[4]). As noted, supra, the July 2020 amendments make an offense qualifying where the defendant is charged with “any crime that is alleged to have caused the death of another person” CPL §510.10[4][j]. The crimes with which defendant is currently charged do not otherwise constitute qualifying offenses, nor was defendant serving a sentence of probation or released to post-release supervision at the time of the instant offenses, nor would she qualify for sentencing on these charges as a persistent felony offender. Defendant argues that the instant offenses do not constitute qualifying offenses and in order to qualify under CPL §510.10[4][j] the People must show some nexus between the alleged conduct of defendant and the cause of death, as defendant is not charged with a crime where the death of a person is an element. Defendant concedes that where the death of another person was alleged as an element of the crime then CPL §510.10[4][j] would automatically apply, without further inquiry by the Court. Defendant further concedes that the section of law at issue here does not, by its plain language, require a charged crime to include causing the death of another as an element of the crime. The People submit that they have sufficiently alleged that the crime the defendant committed caused the death of W. M. and, as such, the offense is therefore qualifying2. Defendant is charged with selling cocaine to W. M. on January 12, 2021, and possessing approximately 3.6 grams of fentanyl with intent to sell it on January 14, 2021. The People allege in the felony complaint that the defendant sold drugs to W. M. and further allege as part of this bail hearing that W.M. died as a result of taking the drugs defendant sold him. As an initial matter, the Court finds defendant’s argument regarding the statute to be without merit. The statute explicitly states: “any crime that is alleged to have caused the death of another person” is a qualifying offense for which the Court has the authority to set monetary bail. CPL §510.10[4][j]. Accordingly, as a starting point this Court has reviewed the language itself and applied its plain meaning, the Court of Appeals has recently held: In matters of statutory interpretation, legislative intent is the great and controlling principle. Because the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. Courts generally construe words of ordinary import with their usual and commonly understood meaning unless the Legislature by definition or from the rest of the context of the statute provides a special meaning. A statute must be construed as a whole, and its various sections must be considered together and with reference to each other [all internal quotation marks and citations omitted].” Matter of Peyton v. N.Y.C. Bd. of Standards & Appeals, 2020 NY Slip Op 07662, 3 [2020] If the Legislature intended the Court to consider only specific offenses as qualifying offenses then it would have specifically set forth those crimes, rather, it used the language ” [a]ny crime that is alleged to have caused the death of another person” which gives the Court discretion to set bail for any crime that is alleged to have caused another person’s death. Further evidence of the Legislature’s intent to grant the Court discretion in setting bail is evident from its use of the words “[a]ny crime” thereby not limiting the same to just felonies, but any crime, including misdemeanors3. Likewise, in the same subdivision, looking at the statute as a whole, as mandated by the Court of Appeals, the Legislature permitted the Court wide discretion in setting bail in both felony and A misdemeanor cases where harm was alleged, again, without specifically identifying any such crimes involving harm (see CPL §510.10(4)(t)). The Legislature’s intent in this regard is evident from a review, as a whole, of the other paragraphs of CPL §510.10(4) and the manner in which they are crafted setting forth qualifying offenses which specifically list Penal Law offenses and crimes as qualifying offenses. See CPL §510.10(4)(a)-(i) and (k)-(q). The Legislative intent is also evident from the Legislature’s previous specific identification of criminal statutes when it defined violent offenses (see Penal Law §70.02); felony drug offenses (see Penal Law §70.70(1)(a)); felony sex offenses (see Penal Law §70.80(1)); and serious offenses (see Penal Law §265.00(17)), to name just a few. In each of these classifications of offenses the Legislature set forth specific Penal Law sections. The Legislature certainly knows exactly how to specifically enumerate specific criminal statutes when it defines categories of crimes as it has done time and again, including in the statute at issue when setting forth qualifying offenses. It’s failure to do so, in this instance, is clear evidence of its legislative intent to provide the Court with discretion in setting bail when any crime is charged by the People and when the People further allege that the crime caused the death of another person. The use of the language “[a]ny crime” clearly establishes that the Court can consider any crime, felony or misdemeanor, as set forth in New York law; “crime” having also specifically been defined by the Legislature (see CPL §10.00[6]). Defendant is charged with multiple crimes, two class B felonies, under New York law and the People have alleged in their bail application that the defendant caused the death of another person. An allegation is just that, an allegation. Furthermore, in reviewing the statute as a whole, this Court determines that, provided the People have a prima facie basis for alleging that the crime charged caused the death of another person, the death of the person does not have to be an element of the crime charged. The Court instead is imbued with discretion in matters such as this to determine whether there is at least a prima facie basis to allege that the crime caused the death of another and, as such, consider it to be a qualifying offense. However, the Court agrees with the defendant that the People must show some causal connection between the charged crime and the death of the other person in order for the Court to have the ability to set monetary bail in cases where the charged crime does not include, as an element, causing another’s death. In that regard, the Court set the matter down for a hearing for the People to set forth what proof they have which establishes a prima facie basis to support the allegation that there was a causal connection, a nexus, between the crime defendant is charged with and the death of another person. At the hearing the People submitted into evidence the following: an Administrative Message System (AMS) report from the New York State Police detailing that Troopers and Mobilmedic ambulance responded to an unattended death of a drug overdose/possible drug overdose for W. M.; the death certificate of W. M., showing the cause of death to be pending investigation and further study; three supporting depositions, one of which is submitted under seal as the person providing the deposition is a confidential informant4; a photograph of the deceased holding what appears to be drug paraphernalia; three photographs of the deceased’s cell phone showing: (1) the phone number of the device (+1-***-***-9450), (2) the phone number for a “Tee” (+1-***-***-3430) and (3) texts, recent to the time of the victim’s death, from “Tee” to the deceased; and a disc of a Mirandized interview between law enforcement and the defendant. The Court has reviewed the police interview of defendant Keitt wherein she identified the phone number found in the deceased’s cellular phone under the contact “Tee”, (845) 4283430, as her own. She also confirmed that she is known as “Tee”. Initially, she denied selling fentanyl and only admitted to selling crack cocaine and “soft” cocaine. She explained that she does not touch fentanyl because it got her sick. Keitt admitted to collecting “a lot” of money for drugs. When defendant was asked during the interview about the guy from the gas station5, she indicated that she did know him and initially said she only sold him crack one time and that she had given him free crack and cocaine on one other occasion. She did not know his name but described him as “blue eyes” as he had crystal blue eyes. When asked about her recent involvement with this man she initially told police that he had stolen something from her and that she had told him that he had better give it back as it was someone else’s drugs. She admitted to selling him one gram for $60.00. Later, she admitted that she gave him the wrong drugs as both items were in the same pocket and she confused them, conceding that it was an accident that he had been sold the wrong drugs. Keitt admitted, after first denying, that she was “pushing” fentanyl for a man she knew as Jamal and that she was selling a lot of food (aka heroin) and fentanyl. She admitted to moving and selling 100 grams a week for a number of months until January. The defendant’s statement, made after the administration and the waiver of her Miranda rights, establishes, by her own admission, that she was selling large quantities of dangerous and deadly narcotics including heroin, fentanyl and cocaine and that she was collecting large sums of money for the sale of these drugs. She admitted to selling heroin to a person the People have identified as W. M., the deceased, through inter alia, the supporting depositions, and the photographs of the cell phone, and that she was not supposed to sell him heroin, but rather, she was to have sold him cocaine and got the drug packages confused. The text messages found on the deceased’s cellular phone wherein the defendant is texting the deceased attempting to get the heroin back shortly before he disappeared and was found dead, of an apparent drug overdose clutching drug paraphernalia, are corroboration of her statements to police and support a prima facie causal connection between the death of W.M. and the sale of heroin/fentanyl by the defendant. The confidential informant reports that the defendant admitted to selling fentanyl to W. M. and that she attempted to get it back when she discovered that she had sold him fentanyl and not cocaine. Furthermore, the police discovered the defendant in possession of nearly 4 grams of fentanyl possessed with the intent to sell it to others consistent with her admissions to police. The death certificate supports the People’s allegation that W.M. died of a drug overdose as the forensic autopsy conducted by Dr. Ashar did not reveal any apparent natural cause of death, the deceased was a relatively young man of 43 years old and the cause and manner of death are pending investigation and further study, including toxicology tests. The New York State Police official police investigation is also consistent with a drug overdose: SP LIBERTY UF MEMBERS AND MOBILMEDIC RESPONDED TO AN UNRESPONSIVE MALE ON THE ABOVE DATE AND LOCATION. THE MALE WAS FOUND OBVIOUSLY DECEASED WITH NO SIGNS OF FOUL PLAY. THE SCENE IS CONSISTENT WITH A POSSIBLE DRUG OVERDOSE AND DRUG PAREPHANALIA WAS FOUND ON SCENE. BODY WAS REMOVED TO GARNET-CRMC PENDING AN AUTOPSY. Finally, the timing of W.M.’s death is consistent with his consuming drugs that had been sold to him by the defendant. All of the aforesaid provide ample probable cause and are prima facie evidence to believe that the defendant sold the deadly narcotic heroin/fentanyl to W.M., believing it to be cocaine, and W.M. used the deadly narcotic heroin/fentanyl which ultimately caused his death. Therefore, the People have sufficiently alleged that the crimes the defendant is accused of committing has a nexus to the death of W.M. and, as such, the Court is empowered to set bail on these qualifying offenses pursuant to CPL §510.10(4)(j). The People have made a sufficient prima facie showing that defendant is charged with a crime that caused the death of another person. The Court has made an individualized determination that the defendant poses a significant risk of flight to avoid prosecution as set forth in CPL §510.10(1). The defendant, if convicted of these two class B felonies, could face a state prison sentence, the minimum of which is 1 year and the maximum of which is 9 years on each charge. Defendant was convicted in Pennsylvania in 2018 for retail theft and was, at the time of that conviction, living in Lancaster, Pennsylvania. All of her other convictions occurred in Sullivan County, New York. Defendant was previously convicted of Petit Larceny in 2017, in satisfaction of a charge for Grand Larceny 4th, and sentenced to 30 days in jail and probation. Probation was revoked based upon a violation. Defendant was also convicted of Criminal Trespass 3rd in 2017. In September of 2020 defendant was arrested for Criminal Possession of Controlled Substance 3rd: narcotic drug with intent to sell6 and Unlawful Possession of Marihuana 1s in New York County, these charges were adjourned in contemplation of dismissal on November 19, 2020.7 Defendant currently has charges pending in the Village of Monticello for Criminal Possession of a Controlled Substance 7th and Unlawful Possession of Marihuana 2nd related to a November 13, 2020 arrest and Criminal Possession of a Controlled Substance 7th and Unlawful Possession of Marihuana 2nd and violations of the Vehicle and Traffic Law related to a December 1, 2020 arrest. In view of the above, the Court has determined that the least restrictive alternative to reasonably assure the defendant’s return to court in this case is monetary bail and nonmonetary conditions. In making this decision the Court has considered all of the factors outlined in CPL §510.30, including the defendant’s activities and history as set forth in her criminal history, the seriousness of the charges herein, her prior record of criminal convictions, including the fact that the defendant, prior to arrest, had charges pending from two separate arrests within the last few months. The evidence against the defendant is strong and compelling and the likelihood of conviction is high. Defendant presents a substantial risk of flight to avoid prosecution on these serious felonies and has every incentive to flee. Accordingly, defendant shall be committed to the custody of the Sheriff of Sullivan County and bail shall remain as follows: $50,000 cash, $100,000 insurance company bond or $200,000 partially secured bond with a 10 percent cash component and should defendant post any of these authorized forms of bail she shall be assigned to the Pre-trail release program through Sullivan County Probation with drug and alcohol conditions. This shall constitute the decision and order of this Court. Dated: February 19, 2021
