The following papers numbered 1 to 4 were read and considered on the defendant’s motion pursuant to Criminal Procedure Law §170.30[1] [f] and §170.30[1] [a], §170.45[1] [a] and §100.40[1] dismissing the charges of Second Degree Criminal Contempt (PL §215.50[3]) on the grounds that the non-monetary condition of release was not a lawful court order or mandate under statutory or constitutional standards, and furthermore, punishment by criminal contempt is not authorized by CPL §510.40 which governs alleged violations of non-monetary conditions of release Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition 2 Summons and Complaint Replying Affidavits 3 Filed Papers 4 Exhibits Memorandum of Law DECISION AND ORDER On July 10, 2020 defendant was assigned counsel and arraigned in this court on a charge of Burglary in the Third Degree (PL §140.20) on Docket CR 4739-20. The Court imposed a curfew from 6:00 P.M. to 6:00 A.M. unless the defendant was working. The defendant was released with this condition on his own recognizance. Thereafter, on or about July 17, 2020 and July 18, 2020 at approximately 7:20 P.M. and 10:55 P.M. respectively, the defendant was arrested for allegedly violating the curfew imposed on Docket CR 4739-20. Counsel alleged that defendant was on a break from work and that both he and the store owner informed the police that he worked at the store. After he was taken into custody, the defendant was transported to police headquarters and released with desk appearance tickets. The defendant appeared before the court on July 20, 2020 and was assigned counsel and arraigned on one count of Criminal Contempt in the Second Degree (PL §215.50[3]) on each of the above dockets, CR 6007-20 and CR 6008-20. The People requested the imposition of a curfew from 6:00 P.M. to 6:00 A.M. and this application was granted over defense counsel’s objection. The matters were adjourned to August 10, 2020 to join the open felony matter scheduled for that date which was filed under Docket CR 4739-20. The information filed on Docket CR 6007-20 alleged that on July 18, 2020 at approximately 10:55 PM, the defendant intentionally violated a court ordered curfew imposed on Docket CR 4739-20 “[b]y being outside his home on the street smoking a cigar with other individuals.” (Misdemeanor Information dated July 20, 2020 Docket CR 6007-20). Similarly, the information filed on Docket CR 6008-20 alleged that on July 1, 2020 at 7:20 PM, the defendant violated a lawful court ordered curfew imposed on Docket CR 4739-20 which imposed a 6:00 P.M. to 6:00 A.M. curfew with work exception by “[b]eing outside his home on the street in the front of [42 Post Street Yonkers, New York].” (Misdemeanor Information dated July 20, 2020, Docket CR 6008-20). The matters appeared on the Court’s calendar several times for conference and disposition. On October 1, 2020 and the Court vacated the curfew condition on defendant’s application and the matters were adjourned for motions. Counsel for defendant now moves pursuant to CPL §170.30[1][f] and §170.30[1] [a], §170.45[1] [a] and §100.40[1] to dismiss the charges of Second Degree Criminal Contempt (PL §215.50[3]) in the above cases on the grounds that the curfew imposed was not a lawful court order or mandate under statutory or constitutional standards. Defense counsel also posits that punishment by criminal contempt is not authorized by CPL §510.40 which governs alleged violations of non-monetary conditions of release. Counsel contends that a finding of contempt cannot be sustained, warranting a dismissal of all charges relating to defendant’s alleged curfew violations. Counsel argued that curfew is a form of preventive detention and that the legislature’s failure to include this as a non-monetary condition was deliberate. In support, counsel cites. People ex rel Shaw v. Lombard, 95 Misc. 2d 664, 665-668 (Monroe Co. Ct., 1978) holding that curfew imposed on the defendant as a condition of her pretrial release on bail was illegal, as was the subsequent revocation of bail and Burns v. Kooperstein, 196 Misc. 2d 963, 963-967 (Sup. Ct. Suffolk Co. 2003) which involved a judge who exceeded authority by imposing a curfew and mandatory drug testing as conditions of pretrial release. Counsel further avers that the imposition of a curfew on defendant which required him to remain in his residence from 6:00 P.M. to 6:00 A.M. with an exception for those times defendant was at work violated his constitutional right to move about freely in public. See, Anonymous v. City of Rochester, 13 NY 3d 35, 45 (2009). And that such fundamental liberties may not be infringed unless “[n]arrowly tailored to serve a compelling state interest.” People ex Rel Johnson v. Superintendent, Adirondack Corr. Facility, 36 N.Y. 3d 187 (2020). The People opposed and argued that the charges are not defective and that there is no jurisdictional or legal impediment to same. The People also argue that the court should apply the doctrine of stare decisis as the court was recently faced with what the People dub as “essentially identical issues” in the matter of People v. Julian Vasquez (Decision and Order of Yonkers City Court [McGrath, J.] dated and entered December 2, 2020). The People maintain that the curfew was valid on its face, is a lawful order for the purposes of PL §215.50(3) and that the instant charges must not be dismissed. See, People v. Harden, 26 A.D. 3d 887, 888 (4th Dep’t, 2009). The People claim defendant was advised of the order in court, and the court had jurisdiction over the matter. The People assert that even assuming the curfew were issued erroneously, “defendant’s remedy was to apply to vacate or modify the order, rather than violate it and challenge the order when punished for disobeying it.” People ex. rel. Day v. Bergen, 52 NY 404, 410 (1873). The People further posit that the court need not and should not decide whether the order issued on CR 4739-20 was valid on either the New York of Federal Constitution or the applicable statutes. Finally, the People argue, CPL §510.40 does not prohibit criminal contempt charges for violation of pretrial release. The People suggest the Court find as it did in Vasquez, that “a number of circumstances may arise for which criminal charges of contempt might be appropriate.” (12/2/20 Decision at page 11). In reply, the defendant contends that the Court is not obligated to follow stare decisis and argued that even if the doctrine applied, stare decisis is not an “inexorable command” and courts are free to “correct a prior erroneous interpretation of the law.” Matter of Charles A. Field Delivery Serv. Inc., 66 N.Y. 2d 516, 518-519 (1985). Defendant argued the law could not be any clearer, CPL §510.40[3] explicitly sets forth the procedures to be followed where a defendant was non-compliant with a non-monetary condition of release and the consequence for non-compliance. The Bail Elimination Act of 2019, which took effect January 1, 2020, was created to reduce the number of people incarcerated while awaiting trial while assuring a defendant released will appear when required. To achieve this goal, the New York State Legislature amended provisions of the Criminal Procedure Law to permit the court to impose non-monetary conditions where there is a risk of flight to avoid prosecution. CPL §510.10. In the event a defendant is charged with a non-qualifying offense, the court must release the defendant on their own recognizance. CPL §510[3] [4]. Certain offenses are no longer bail eligible; however, the court may impose additional restrictions upon a defendant released on bail or on his or her own recognizance. CPL §510.10[3]. These restrictions or conditions might be the surrender of a passport (see, People ex. rel. Tannuzzo v. New York City, 174 A.D. 2d 443 [1st Dept, 1991]), the suspension of a driver’s license (see, Buckson v. Harris, 145 A.D. 2d 883 [3rd Dep't 1988]) or directing the defendant to attend psychotherapy (see, People ex.rel. Bryce v. Infante, 134 A.D. 2d 764 [3rd Dep't, 1987]). Any conditions imposed must be the “least restrictive” and “reasonably assure the [defendant's] return to court.” CPL §510.10 [3]. The court must explain its choice of alternative and conditions on the record or in writing.” CPL §510.10[3]. There is no dispute that the plain language of the statute indicates the list is not exhaustive. In fact, the legislature chose the word “including” which suggests the list is illustrative. See, People v. Portoreal, 66 Misc. 3d 498 (Bronx Sup. Ct, 2019). “[T]he courts have inherent power to place restrictive conditions upon the pretrial release of a defendant for a legally permissible purpose, such as the protection of potential witnesses but not preventive detention.” People ex. rel. Shaw v. Lombard, 95 Misc. 2d @ 664. Here, the defendant was charged with a non-qualifying offense and released with a non-monetary condition. “In the event of alleged non-compliance with the conditions of release in an important respect…additional conditions may be imposed by the court, on the record or in writing, only after notice of the facts and circumstances of such alleged non-compliance, reasonable under the circumstances, affording the principal and the principal’s attorney and the people an opportunity to present relevant, admissible evidence, relevant witnesses and to cross-examine witnesses, and a finding by clear and convincing evidence that the principal violated a condition of release in an important respect.” CPL §510.40(3). The Court, after the hearing, shall impose the “lease restrictive condition or conditions that will reasonably assure the defendant’s return to court.” Id. The court’s primary consideration “is to ascertain and give effect to the intention of the Legislature” McKinney’s Cons Laws of NY Statues Sec 92. Courts must interpret statutes to avoid unreasonable or absurd results. People v. Garson, 6 N.Y.3d 604, 614 (2006); People v. Kramer, 92 N.Y.2d 529, 539 (1998). The proper procedure is clear, under the provisions of CPL §510.40[3], a hearing is required. Even prior to the Bail Elimination Act of 2019, a violation of a term of bail would require the defendant’s appearance before the court to review the release of the defendant rather than to arrest the defendant and revoke bail. See, People ex. rel. Shaw v. Lombard, 95 Misc. 2d 664 (Monroe Co. Ct., 1978). CPL §510.40 now provides that the court must consider reducing the conditions on future appearances. In the event a defendant is not compliant, the court may impose additional conditions upon a finding of “clear and convincing evidence” that defendant violated a condition “in an important respect.” CPL §510.40[3]. Additionally, curfews, even prior to the Bail Elimination Act have been found to be beyond the court’s jurisdiction. (See, Id., Burns v. Kooperstein, 196 Misc. 2d 963 [Sup. Ct., 2003]). There can be no dispute that “an order of the court must be obeyed, no matter how erroneous it may be, so long as the court is possessed of jurisdiction and the order is not void on its face.” People v. Harden, 26 A.D.3d 887, 888 (4th Dep’t, 2006). In the present matter, curfew was imposed as a condition of non-monetary release. However, rather than raise the defendant’s alleged violation of this condition pursuant to the Criminal Procedure Law, the defendant was arrested and charged on Dockets CR 6007-20 and CR 6008-20 with contempt. After considering the facts and circumstances of the above dockets, as well as the related underlying matter, the Court is unable to find that the curfew imposed as a non-monetary condition was permitted. Accordingly, the defendant’s motion is granted, and the charges dismissed. The Court further finds it is not bound by stare decisis. “A case is precedent only for those issues which the appellate courts have been requested to address and is not stare decisis for issues neither briefed nor argued.” People v. Thompson, 177 Misc. 2d 803, 808 (Sup. Ct., Kings Co. 1998) citing People v. Machado, 90 N.Y.2d 187, 193 (1997); People v. Jackson, 78 N.Y.2d 641 (1991). Dated: April 26, 2021
