DECISION AND ORDER This case concerns the interplay of Criminal Procedure Law (CPL) §§530.60(1) and 530.60(2)(b) in light of the enactment of the recent amendments to the New York bail statute. The question presented is whether the court must hold an evidentiary hearing under CPL §530.60(2) after a defendant charged with a bail eligible offense who has posted bail, is subsequently brought before the court after having allegedly committed a new felony. Both legislative intent and statutory construction principles dictate that an evidentiary hearing must be held. Facts In this 2020 indictment, the defendant was charged with violating a family court order of protection, and committing burglary in the second degree by allegedly breaking a window to enter the complainant’s apartment. At the supreme court arraignment on October 15, 2020, the court set a securing order in three forms as required by CPL §520.10, including an insurance company bond in the amount of $100,000. The court also issued a temporary order of protection in the felony case. Family members were able to post the insurance company bond on February 16, 2021. Just weeks after being released, the defendant allegedly violated the supreme court temporary order of protection and was charged with aggravated criminal contempt in the first degree under CPL §250.51. On March 11, 2021 the People employed the procedure in CPL §530.60(1) to obtain a ‘retainer warrant”, compelling the defendant to appear in this case forthwith. On June 29, 2021, the defendant was brought to court involuntarily and the court vacated the warrant. The People then moved to revoke and increase the bail terms in the first indictment, citing good cause under CPL §530.60(1). The Assistant District Attorney informed the court on the record that an indictment had been voted on the new case but had not yet been filed. Legal Analysis Under the 2019 revisions to the bail statute, a court must start with the presumption that the defendant will be released, even when charged with a qualifying offense. In order to set bail for a qualifying offense, the court must make an individual determination that conditions other than release are the “least restrictive means that will reasonably ensure the principal’s return to court.” CPL §510.10(2). This is without a doubt the overarching legislative principle now underlying the bail laws. In this case, the People alleged a violation of an order of protection (CPL 530.60(2)(b)(ii)) and also charged that a new felony had been committed (CPL 530.60(2)(b)(iv)). When, as here, a prosecutor uses the procedure available in CPL §530.60(1) to have the defendant brought before the court, a hearing must be held, whether under 530.60(1) or 530.60(2). See W. C. Donnino, NY McKinney’s Supplementary Practice Commentaries, section 530.60. The real issue is whether such a “hearing” requires admissible evidence to be presented. Under either subsection, the court’s inquiry still begins with the least restrictive means to ensure the defendant’s return to court. The amended statute squares that principle with an acknowledgment that the defendant may be making required court appearances yet engaging in behavior that justifies the supreme court’s reevaluation of its original securing order. Subsection (2)(b) therefore permits the court to review its order upon clear and convincing evidence of the enumerated actions set forth in subsections (ii),(iii) and iv). CPL §530.60(2) was broadened to apply to all cases in which the People seek more stringent securing provisions, not just where remand is sought.1 The 2019 Legislature, skeptical of monetary bail in general, was evidently concerned about prosecutors using hearsay allegations to persuade the court under CPL §530.60(1) to impose, raise or revoke bail due to any kind of intransigence on the part of a defendant at liberty. Familiarity with the kind of hearsay factual recitations made at arraignments was likely the impetus for the requirement that the court receive “any relevant, admissible evidence not legally privileged.” See CPL §530.60(2)( c). See also, People ex rel. Chiszar v. Brann, 69 Misc3d 201 (Sup Ct NY Co 2020). The Legislature demanded a more substantive inquiry to ensure that neither side was merely talking through their hat. Application of the hearing requirements under CPL§530.60(2) in this context more closely tracks the overall Legislative intent. More importantly, in circumstances where two statutes apply, the more specific of the two takes priority. See Delaware County Elec. Co-op Inc. v. Power Authority of New York State, 96 AD2d 154 (4th Dept 1983), affd, 62 NY2d 877 (1984); 97 NY Juris.2d Statutes §187 et seq. In this case, the defendant is accused of both “violating an order of protection in the manner prohibited by subdivision (b) (c) or (d) of §215.51..” (CPL §530.60(2)(b)(ii)), and standing “charged in such action with a felony and, after being so charged, commit[ting] another felony. CPL §530.60(2)(b)(iv). Although the text of CPL §530.60(1) read in isolation might be construed to apply, both of the specific grounds for the People’s application here are contained in CPL 530.60(2)(b). Accordingly, this court must follow CPL §530.60(2). An opposing view was expressed in People v. Garcia, 67 Misc3d 511 (CrimCt, Bronx Co 2020). The court there noted the Legislature’s division of felony offenses into two categories, and gave judges more discretion in issuing securing orders where the defendant was charged with a qualifying offense. The court also indicated that requiring a hearing in these circumstances can lead to “anomalous and nonsensical outcomes,” using the example of an absconder who ostensibly puts himself in a better position by fleeing than he would have been at the supreme court arraignment. This hypothetical fact pattern ignores the court’s separate obligation to make a securing order determination at the supreme court arraignment under CPL §530.40. The court must fix an appropriate securing order at that time which can be — but does not have to be — a continuation of the criminal court arraignment. If the defendant absconded before the arraignment, he would not be in the posture where the evidentiary requirements of CPL§530.60 would apply because CPL §530.40 more specifically applies in that situation. In fact, his failure to return for the arraignment, even if not wilful or persistent, would be among the factors the arraignment court could consider in issuing a securing order (“…information about the principal that is relevant to the principal’s return to court…” CPL §510.30(1)). The 2019 amendments did nothing to change the structure of a summary arraignment hearing except change the list of factors the court must consider in deciding the least restrictive means to ensure the defendant’s return. Once having made an initial bail determination at arraignment, however, to revisit it requires more than a single instance of the defendant missing a court date or a summary recitation of the defendant’s unlawful conduct while at liberty. See W. C. Donnino, NY McKinney’s Supplementary Practice Commentaries, section 530.60. The concerns for the court when a defendant is brought back under the warrant procedure in CPL §530.60 are different. The supreme court arraignment has been held. The court has already assessed the relevant factors to order the least restrictive means to ensure the defendant’s return to court. CPL §510.30(1). The issue becomes what has occurred to change the original assessment. The focus shifts to review what, if anything, the defendant has done in the interim. It must be on the strength of proof of the defendant’s new conduct, whether fleeing, violating an order of protection or committing a felony, that the supreme court engages in a reassessment of its own considered order. Making that new assessment it is not the onerous exercise that the court posits in People v. Garcia. Id. Nothing in the very recent history under the new statute suggests that a hearing under CPL §530.60(2) will result in a trial-within-a-trial or anything of the sort. All that is required of the People is evidence in admissible form, which, by the explicit terms of the statute, may include grand jury minutes.2 For these reasons, the People may not simply argue under CPL §530.60 that they have shown good cause because there was an arrest, a felony complaint, or even the voting of an indictment. The new bail statute demands more than a say-so, even by an officer of the court. This court grants the People’s alternate application that the defendant be held without bail pending a hearing to take place within 72 hours. See CPL §530.60(2)(e). The current bail is not forfeited pending the hearing. At the time set for the hearing, the People must present evidence in admissible form in support of their application. CPL §530.60 (2)(b). See also People ex rel. Chiszar v. Brann, 69 Misc3d 201 (Sup Ct NY Co 2020). This shall constitute the decision and order of the court. Dated: July 12, 2021
