The defendant stands charged with burglary in the third degree (PL §140.20) and grand larceny in the fourth degree (PL §155.30[1]), offenses which do not qualify for bail (CPL §510.10[4]). He appeared on February 11, 2021 pursuant to a bench warrant, issued when he failed to return to court on December 10, 2020. The defendant had failed to come to court when directed on several prior occasions. The People requested the Court find the defendant had persistently and willfully failed to appear, and set bail. The defendant argued that the People failed to prove his absences were willful, as required under the statute (CPL §530.60[2][b]). CPL §530.60 contains three mechanisms by which a defendant’s securing order may be revoked.1 The mechanism relevant to these proceedings, CPL §530.60(2)(b), authorizes a court to revoke a securing order after a hearing when there is clear and convincing evidence that a defendant at liberty has persistently and willfully failed to appear. A court is limited to considering “relevant, admissible evidence.” The defendant may cross-examine witnesses and present his own “relevant, admissible evidence.” The statute also explicitly permits a court to receive a transcript of grand jury testimony in lieu of a witness’s appearance. Upon a finding of clear and convincing evidence, a court may revoke a defendant’s securing order and issue a new order fixing bail (CPL §530.60[d][ii]). The Court took judicial notice in the instant case of its own prior proceedings (People v. Byrd, 57 AD3d 442, 443 [1st Dept 2008]). The Court reviewed the defendant’s record of failing to appear, and gave both parties further opportunity to be heard. Defense counsel argued to the Court that the defendant’s absences were not willful, but were the result of hospitalizations and the defendant’s chronic homelessness. However, he offered no admissible evidence in support of these bald assertions. After the hearing, the Court found clear and convincing evidence that the defendant had persistently and willfully failed to appear after notice of scheduled appearances and set bail in the amount of $5,000 cash, $5,000 insurance company bond, or $7,500 partially-secured bond. The Court now issues the following written decision, explaining its findings of fact and conclusions of law. Findings of Fact. The course of this case has been long and complicated by upheaval in the court process by the coronavirus pandemic. The litany of adjournments are as follows: January 7, 2020: After being found fit following an Article 730 examination, the defendant was arraigned in Supreme Court. The defendant was released under supervision and directed to return to Part 92 on January 27, 2020 to be screened for possible diversion. January 27, 2020: The defendant failed to appear for his diversion court assessment. Pursuant to CPL §510.50(2), the Court adjourned the matter for the defendant to appear, prior to issuing a bench warrant. January 30, 2020: The defendant failed to appear. The Court issued a bench warrant. February 14, 2020: The defendant was involuntarily returned on the January 30th warrant and was rejected from the diversion program. The defendant was returned to release under supervision, and directed to return to Part 31 on February 25, 2020. February 25, 2020: The defendant failed to appear. The Court put his attorney on notice, pursuant to CPL §510.50(2), that a bench warrant would be ordered on February 27, 2020 if the defendant did not appear. February 27, 2020: The defendant failed to appear. The Court ordered a second bench warrant. March 16, 2020: The defendant was involuntarily returned on the warrant. The Court released him, but he was directed to return on March 19, 2020 for a hearing pursuant to CPL §530.60. March 19, 2020: The courts were closed, beginning March 17, 2020, due to the onset of the coronavirus pandemic. It is unknown whether the defendant made any effort to appear. August 10, 2020: The Court calendared the case for its first appearance since March 19, 2020. The defendant failed to appear. Defense counsel stated that neither the defendant nor counsel had been informed of the new date. The Court directed counsel to inform his client to appear on September 4, 2020. September 4, 2020: The defendant failed to appear. Defense counsel stated that he had spoken with a doctor who informed him the defendant was in the hospital. No written documentation was provided. The Court directed counsel to inform his client to appear on September 29, 2020. September 29, 2020: The defendant failed to appear. Defense counsel had no contact with the defendant. The Court found the defendant’s absence willful and issued a third bench warrant. October 28, 2020: The defendant was involuntarily returned to court on the warrant. The Court released him on the condition that he provide a valid e-mail address for notification of court dates and contact with his attorney. The Court also directed him to return on November 10, 2020. November 10, 2020: The defendant failed to appear. Defense counsel informed the Court that the e-mail address provided by the defendant did not work. The Court found that the defendant’s failure to appear was willful and ordered a fourth bench warrant. December 10, 2020: The defendant was not present. The Court, proceeding in his absence, issued a decision on defense counsel’s previously-filed omnibus motion. January 29, 2021: The defendant was arrested on a new offense, but not produced to court for return on the warrant. Due to pandemic-related court congestion, the earliest the Department of Corrections could produce the defendant was February 11, 2021. February 11, 2021: The defendant was returned on the warrant by the Department of Corrections. The Court held the instant hearing. It is in light of these facts that the Court must consider whether the defendant has persistently and willfully failed to appear after notice of scheduled appearances. Persistently The Criminal Procedure Law does not define what it means to “persistently” fail to appear. Where the legislature has not defined a term, courts must “construe words of ordinary import with their usual and commonly understood meaning,” using “dictionary definitions as ‘useful guideposts’ in determining the meaning of a word or phrase” Rosner v. Metro. Prop. & Liab. Ins. Co., 96 NY2d 475, 479-80 (2001). It has long been held that where the words have “a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning” Tompkins v. Hunter, 149 NY 117, 122-23 (1896). Defense counsel argues that “persistently” means multiple absences. Under this definition, the defendant has been persistently absent, even if the Court discounts periods of absence that may be attributable to COVID-related confusion. On January 7, 2020 he was directed by the Court to appear in Part 92 for diversion screening on January 27, 2020 and he failed to appear. After he was returned on a warrant to Part 92 on February 14, 2020 he was directed by the judge to return on February 25, 2020 and failed to do so. He was present in court on October 28, 2020 and directed to return on November 10, 2020 and failed to do so. Moreover, dictionary definitions of “persistently” suggest that the word encompasses both repeated conduct and prolonged conduct: Google.com: “in a persistent manner; continuously” (persistently — Google Search, https:// www.google.com/search?q=persistently & ie= & oe= [last accessed Mar. 4, 2021]). Dictionary.com: “lasting or enduring tenaciously [or] constantly repeated; continued” (Persistent
