On September 14, 2022, the defense applied for a change in the securing order for Mr. Ayala, arguing that he be released on his own recognizance. The People opposed. From the bench, the Court orally granted the defense’s application. This written decision provides further rationale for that ruling. PROCEDURAL BACKGROUND The People charge Mr. Ayala with misdemeanor criminal contempt. They allege that he “threw one (1) plastic water bottle filled with liquid” at the complainant’s front door in violation of an order of protection. (Crim. Compl. at 1). They also allege he yelled, “you damn whore.” (Id.). At this stage of the proceedings, Mr. Ayala has not been convicted of anything, and indeed, he has no criminal record at all. On September 9, 2022, at arraignments, a court set monetary conditions for release: $5,000 cash; a $5,000 insurance company bond; or a $5,000 surety bond, partially secured at 10 percent. As a result, Mr. Ayala was ordered confined to the New York City Department of Corrections unless he or a suretor could afford to post $500. He was held at Rikers Island. Five days later, the parties appeared in court. Mr. Ayala was still incarcerated, as no one had been able to afford to pay $500 for his release. As a result, the defense applied for a change in Mr. Ayala’s securing order, arguing that the Court should release him on his own recognizance. LEGAL ANALYSIS At the outset, the People argue that this Court has no jurisdiction to hear the defense’s application. They argue that any change to a securing order set at arraignments must be made upon a showing of a “change” in “circumstances.” Although the People did not cite any cases, they no doubt refer to a general doctrine that judges of coordinate jurisdiction “lack the power of appellate review over the orders of judges of equal authority.” (See People ex rel. Manceri v. Doherty, 192 N.Y.S.2d 140, 142 [Sup. Ct., Kings County 1959]; see also People ex rel. Fischetti v. Brann, 166 AD3d 29 [1st Dep't 2018] [noting that a subsequent bail application could be understood as a motion to renew an earlier application]). Whatever strength it had historically, the People’s argument is now outdated. The Legislature amended C.P.L. §510.20, effective January 1, 2020, to govern an “[a]pplication for a change in securing order” by the defense. ([emphasis added]). Because the Legislature has now spoken, traditional judicial doctrine must give way. Today, an “[a]pplication for a change in securing order” may be made “[u]pon any occasion when a court has issued a securing order” and, as a result, the accused is in custody. (C.P.L. §510.20[1] [emphasis added]). The Appellate Division recently noted the same. (People ex rel. Roberts v. Brann, 183 AD3d 790, 791 [2d Dep't 2020] ["We note that [the accused], if he so be advised, may make an application for a change in securing order ‘[u]pon any occasion.’”]). That said, there have been changes in circumstances since Mr. Ayala’s arraignment. The bail statute requires that courts consider an accused person’s “financial circumstances,” their “ability to post bail without posing undue hardship,” and their “ability to obtain a secured, unsecured, or partially secured bond.” (C.P.L. §510.30[1][f]). This Court has data relevant to these factors that the arraignment court did not: for five days, Mr. Ayala has been unable to post bail and unable to obtain a bond. This is one change in circumstance. Another change in circumstance is the People’s approach to this case. At arraignments, the People did not make any offer or state what kind of sentence they would seek should Mr. Ayala be convicted. Today, the People have stated that they would be recommending a probationary sentence. In other words, if Mr. Ayala pled guilty, he would be released from jail. If he does not plead guilty, he will remain in jail. There are other factors under the bail statute, all of which the Court has considered. (C.P.L. §510.30[1]). Some bear special note. While Mr. Ayala has missed some court dates on his open cases, the People provide nothing to suggest that any of these missed court dates are evidence of “flight to avoid criminal prosecution.” (See C.P.L. §510.30[1][e]). The ordinary, commonly accepted, and plain dictionary definition of “flight” means “an act or instance of running away.” (Flight, Merriam-Webster Dictionary [2022]). Not every instance in which a person misses their court date is evidence of “running away” from the prosecution. In fact, totally inconsistent with any theory that Mr. Ayala was “running away,” he voluntarily returned multiple times to court after missing his scheduled dates. The Court also notes Mr. Ayala’s history. He is a 56-year-old man who has no criminal record and, from review of his “rap” sheet, appears to have never been to jail. From the bench, the Court also observed Mr. Ayala to be in an obviously frail condition. Consistent with those observations, his defense attorney later noted that Mr. Ayala suffers from medical issues, as well. The Court finally takes judicial notice of the conditions at Rikers Island,1 where Mr. Ayala is incarcerated. The bail statute requires the Court to impose the “least restrictive kind and degree of control or restriction” that is “necessary” to secure an accused person’s return to court. (C.P.L. §510.30[1]). Analyzing the “kind and degree” of “control or restriction” requires courts to consider the jail conditions to which securing orders expose people. Worse jail conditions are a more restrictive kind of control.2 Rikers Island is currently the subject of a federal court-appointed monitor as part of a consent decree. (See Consent Judgment, Nunez v. NYC Dep’t of Corrs., 1:11-cv-05845 [S.D.NY Oct. 21, 2015] [Dkt. No. 249]). As of June, the monitor reported that the jails there “remain dangerous and unsafe, and the conditions are volatile.” (Status Report of the Nunez Independent Monitor at 4, Nunez v. NYC Dep’t of Corrs., 1:11-cv-05845 [S.D.NY June 30, 2022] [Dkt. No. 467]). They detail a “disturbing” recent “pattern” of a “high incidence of force.” (Id. at 15). In June, the monitor noted that under these violent conditions, “nine incarcerated individuals have died” this calendar year. (Id.). Since June, five more people have died. (Isabel Song Beer, Yet Another Rikers Island Inmate Dies in Custody — The Third Since August, amNY [Sept. 14, 2022]). The most recent person died this morning. (Jacob Kaye, Again, Man Dies While under DOC Watch on Rikers Island [Sept. 14, 2022]). The Court will not continue to hold Mr. Ayala at Rikers Island simply because he cannot post $500. The New York City Department of Corrections is ordered to release him on his own recognizance immediately. The foregoing constitutes the decision and order of the Court. Dated: September 14, 2022
