The People have moved to revoke the defendant’s bail pursuant to CPL 530.60 and set increased bail, based upon his alleged commission of a violent felony. The Court finds reasonable cause to believe the defendant committed a violent felony, and holds that such a finding pursuant to CPL 530.60(2)(a) relieves the Court of its obligation to set the least restrictive alternative necessary to ensure the defendant’s return to court. Background The defendant was initially charged with gang assault in the first degree (Penal Law §120.07) and other related crimes. At his arraignment in the Criminal Court of the City of New York on December 18, 2020, bail was set in the amount of $10,000 cash, $30,000 insurance company bond, or $30,000 partially secured bond at 10 percent. On August 2, 2021 the defendant’s bail was paid in the form of a $30,000 insurance company bond. It is alleged that on December 31, 2021, the defendant discharged a firearm outside 2395 First Avenue in New York County, striking a 14-year-old girl and causing her serious physical injury. On January 31, 2022, police officers arrested the defendant, charging him in a felony complaint with criminal possession of a weapon in the second degree (Penal Law §265.03[1][b]), assault in the second degree (Penal Law §120.05[4-a]), and other related charges. The People requested the Court find good cause to revoke the defendant’s bail pursuant to CPL 530.60(1) and set increased bail. The Court denied the People’s request, based upon People ex rel Rankin v. Brann, ___ AD3d ___, 2022 NY Slip Op 00153 (2d Dept 2022), which held where the commission of a new violent felony is the sole ground for bail revocation, it must proceed pursuant to CPL 530.60(2). The Court adjourned the matter for hearing pursuant to 530.60(2)(c), and remanded the defendant in the interim, pursuant to 530.60(2)(e). The Hearing The court must hold a hearing and afford both sides an opportunity to present relevant, admissible evidence, and to cross-examine witnesses, if any (CPL 530.60[2][c]). In lieu of a particular witness’s appearance, the People may introduce the grand jury testimony of that witness (Id). The Court may revoke the defendant’s securing order if it finds: 1) the defendant is charged with the commission of a felony; 2) the defendant was at liberty; and 3) there is reasonable cause to believe the defendant committed a new violent felony. There is no dispute that the defendant is charged with a felony in the instant matter and was at liberty at the time of the alleged commission of the new violent felony. These facts are irrefutably established by the Court’s own records (see People v. Byrd, 57 AD3d 442, 443 [1st Dept 2008]). At the People’s request, and without objection, the Court took judicial notice of the indictment filed in the defendant’s new case, IND-70281-22, as People’s Exhibit 1. The People urged the Court to find reasonable cause based solely upon this indictment pursuant to People v. Knight, 67 Misc 3d 247, 252 (Sup Ct Kings County 2020). The Court respectfully disagrees with the Knight court’s conclusion that an indictment alone will suffice to sustain revocation pursuant to CPL 530.60(2)(a). With the limited and explicitly stated statutory exception of grand jury minutes, a 530.60(2)(c) revocation hearing requires non-hearsay evidence (People ex rel Chiszar v. Brann, 69 Misc 3d 201, 205-07 [Sup Ct NY County 2020]). Knight’s analogy to People v. Outley, 80 NY2d 702 (1993) is unavailing — that case dealt with the application of CPL 400.10, which provides for a “summary hearing.” CPL 530.60(2)(a) requires the court to find reasonable cause, and makes no provision for delegating that conclusion to the grand jury. The People proceeded to submit into evidence the minutes of the grand jury proceedings for the defendant’s newly charged violent felony as People’s Exhibit 2.1 Those minutes provided the authentication necessary to also introduce the grand jury exhibits, including video surveillance of the alleged crime, photographs of the defendant, and medical records of the victim, collectively People’s Exhibit 3.2 The defendant submitted no evidence but argued that the People’s evidence was insufficient to establish reasonable cause to believe that he had committed a violent felony. He highlighted discrepancies in the witnesses’ descriptions, and argued the clothing of the alleged shooter was insufficiently tied to that worn by the defendant when he was arrested a month later. The defendant argued that an NYPD Detective had no basis to identify him by name in a still image taken from a later video. The detective testified in the grand jury that he had spent approximately five hours with the defendant in the past. The defendant argued that this was the same detective from the instant case, whose only interaction with the defendant was a videotaped 27-minute interrogation of the defendant, who wore a mask the entire time. The defendant did not introduce the interrogation video, nor did he call the detective or any other witness to establish how much time they spent together. There being no evidence of any of these facts in the hearing, the Court disregards this argument, and accepts the detective’s uncontroverted grand jury testimony. The Court finds the evidence presented at the hearing sufficient to establish reasonable cause to believe the defendant committed a new felony. The grand jury testimony, coupled with the surveillance videos, supported the reasonable inference that the person identified as the defendant in a subsequent still image from the surveillance videos was the same person identified by eyewitnesses as “waving a gun around” and discharging it in the direction of the victim. The medical records established that the 14-year-old victim suffered injuries consistent with being shot, including a laceration to her vagina which required surgical repair. CPL 530.60(2) CPL 530.60(2) is hardly a new statute; it was enacted in 1981. Assemblyman George Friedman, the sponsor of the bill establishing subdivision two, intended the law to prevent defendants who committed violent felonies while on bail from remaining “on the street” (NYU Law Ctr. on the Admin. of Crim. Law, Preventative Detention in New York: From Mainstream to Margin and Back, February 2017, pg. 22). Assemblyman Melvin H. Miller similarly thought the legislation would help “get a bad actor off the street” (E.J. Dionne, Assembly Approves Ending of Bail in Some Cases, NY Times, Jul. 2, 1981, §B at 2). The legislation’s opponents, such as Assemblyman Andrew Jenkins, understood it be “a step toward preventative detention” (id.). After the bill passed, New York State courts interpreted it as an implementation of preventative detention.3 As such, it expanded courts’ powers to revoke bail and commit a defendant to the custody of the sheriff on the basis of a new violent felony “even if it does not appreciably change the court’s view of the likelihood of future appearance” (Torres, 112 Misc 2d at 151). Courts could, for the first time, consider the defendant’s “danger to the community” in determining the appropriateness of a securing order (State v. Sanchez, 22 Misc 3d 1123[A] [Sup Ct Richmond County 2009]).4 In 2019, as part of New York’s annual budget process, the legislature passed sweeping criminal justice reforms, including revisions of the statutes governing securing orders. Under the new legislation, courts must “unless otherwise provided by law,” set the least restrictive securing order necessary to ensure a defendant’s return to court (CPL 530.40). Substantial changes were made to CPL 530.60, including the addition of a revocation mechanism for chronically absent defendants, defendants who intimidate or tamper with witnesses or violate orders of protection, and chronic felons (CPL 530.60[2][b]). Other than conforming amendments adding the newly-established “release under non-monetary conditions,” the revocation mechanism for CPL 530.60(2)(a) remains largely unchanged (Compare former CPL 530.60[2][a], [b] with CPL 530.60[2][a], [c], [d]). The only substantive change in 2019 was the option to fix bail following revocation, in lieu of remanding the defendant, which previously had been the court’s sole option (CPL 530.60[2][d]; see also William C. Donnino, Supp. Practice Commentary, CPL 530.60). Statutory Interpretation The Court need look no further than the statutory language to interpret CPL 530.60(2)’s current incarnation. “[W]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benev. Ass’n of City of New York v. City of New York, 41 NY2d 205, 208 [1976]). CPL 530.40′s requirement that an issuing court impose the least restrictive securing order necessary applies “unless otherwise provided by law.” When a defendant’s securing order is revoked pursuant to CPL 530.60(2)(a), the court is authorized only to fix bail or remand the defendant (CPL 530.60[2][d][i]). If the least restrictive alternative were non-monetary conditions, the court would be powerless to impose them. Under these circumstances, it would be absurd to apply a least restrictive alternative requirement (see People ex rel McCurdy v. Warden, Westchester County Corr. Facility, 36 NY3d 251, 262 [2020]). But even were the Court to peer beyond the plain language to divine the legislative intent, well-established principles of statutory construction yield the same result. The principles of statutory construction apply in the absence of a clear statement of legislative intent. “General principles may serve as guides in the search for the intention of the legislature in a particular case but only where better guides are not available” (Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 584 [1998]). The revisions to CPL 530.60 were “enacted in law as part of a budget bill, and not through any independent legislation, [and] the other branches of the government have not provided the judicial branch with a compass to lead us to easy answers about the intent of the legislature, because there is no legislative history specifically relating to this statute” (People v. Mobley, Sup Ct Bronx County, Feb. 11, 2020, Fabrizio, J., indictment No. 1941-2019). The Court has found nothing in the transcripts of the Assembly and the Senate regarding the budget bill that sheds light on the specific provisions of CPL 530.60(2); it turns instead to established principles of statutory interpretation. The inclusion of an explicit “least restrictive alternative” requirement in other revocation instances demonstrates that such a requirement does not apply to a CPL 530.60(2)(a) revocation. Where a statute “describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (Patrolmen’s Benev. Ass’n of City of New York, 41 NY2d at 208-09 [internal quotations omitted]). When a defendant’s securing order is revoked pursuant to CPL 530.60(2)(b), “in accordance with the principles in this title the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court (CPL 530.60[2][d][ii]). The legislature’s decision to include that language indicates its belief that the requirement must be explicit in this context. Its decision to omit that same language from CPL 530.60(2)(d)(i), therefore, demonstrates an intent to omit the requirement. This intent is further demonstrated by the minimal amendments to former CPL 530.60(2). The amendment of a statute must be reviewed in light of the existing decisional law — with which the legislature is presumed familiar and presumed to have accepted to the extent it left it unchanged (Matter of Knight — Ridder Broadcasting v. Greenberg, 70 NY2d 151, 157 [1987]). The absence of a revision reversing the preventative detention history of these provisions, therefore, evinces an intent that it continues (see People v. Robinson, 95 NY2d 179, 183-84 [2000]). The Second Department has implicitly adopted this interpretation (see People ex rel Rankin, 2022 NY Slip Op 00153 [greater procedural safeguards required because preventative detention authorized]). Conclusion After conducting a revocation hearing pursuant to CPL 530.60(2)(c), the Court finds reasonable cause to believe that the defendant, who is charged with the commission of a felony and was at liberty pursuant to an order of bail, committed a violent felony offense (CPL 530.60[2][a]). The Court finds reasonable cause to believe the defendant discharged a loaded firearm at a group of people, striking and causing physical injury to a 14-year-old girl. The Court therefore orders the defendant’s securing order be revoked. The Court is aware of the previous records and determinations regarding the defendant’s likelihood to return to court. The Court is now further enabled to consider the danger to the community in allowing the defendant to remain at liberty while these charges of gang assault pend against him. The Court therefore issues a new securing order, fixing bail in the amount requested by the prosecutor: $150,000 cash, $350,000 insurance company bond, or $350,000 partially secured bond at 10 percent. This securing order will continue until the shortest of: 90 days, exclusive of adjournments requested by the defendant; the instant case no longer charges the defendant with a felony; or the new case no longer charges the defendant with a violent felony (CPL 530.60[2][d][ii]). This constitutes the Decision and Order of the Court. Dated: February 16, 2022
