People v. Lee

This case presents the question of the proper standard for determining whether a crime is a “qualifying offense” for which bail can be set, pursuant to CPL §510.10(4)(t). Specifically, where a defendant is at liberty for three alleged burglaries, and is arraigned on another five alleged burglaries, do the new burglaries constitute “qualifying offenses”? This Court answers this question in the affirmative. I. Procedural History a. February 14, 2022 Arraignment On February 14, 2022, the Defendant was arraigned on one count of Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40), a class A misdemeanor (“Complaint One”). The accusatory instrument alleged that on February 13, 2022 at 5:50 a.m., at Alexis Furniture, a store located at 51 East 125th Street in New York County, law enforcement officers recovered from the Defendant’s pocket a check for $332.00 made out to Alexis Furniture. The Defendant was seated near a metal safe in the store, and he stated to law enforcement officers, “I found that safe, it was broken.” The Defendant was released on his own recognizance. b. March 3, 2022 Arraignment On March 3, 2022, the Defendant was arraigned on two separate accusatory instruments. The first charged the Defendant with two separate counts of Burglary in the Third Degree (PL §140.20), a class D felony (“Complaint Two”). It alleged that on January 31, 2022, at approximately 12:20 a.m., the Defendant entered the Greedy Pot restaurant, located at 1944 7th Avenue, and forced the register open. The incident was recorded by video surveillance. Law enforcement officers showed the Defendant a still image from the video of a male in the vicinity of the Greedy Pot, approximately 7 minutes after the burglary, wearing the same clothing as the male in the Greedy Pot; the Defendant identified himself as the male in the picture. The accusatory instrument further alleged that, eight days later, on February 8, 2022, at approximately 3:16 a.m., the Defendant broke into the front door of Tio’s Bistro at 421 Lenox Avenue, touched the cash registers, and left the location with a part of a cash register in his hand. Video surveillance also captured this alleged incident, and when law enforcement officers showed the Defendant a still image from the video of an individual outside Tio’s Bistro, the Defendant identified himself. The Defendant was released under non-monetary conditions for the offenses alleged in Complaint Two. Specifically, the Defendant was released under supervision and ordered to comply with the nonmonetary conditions of its mandates, including that the Defendant attend one in-person check-in per week with staff at CASES Manhattan Pretrial Services Program. The second accusatory instrument on which the Defendant was arraigned on March 3, 2022, charged the Defendant with an additional count of Burglary in the Third Degree (PL §140.20), a class D felony (“Complaint Three”). Specifically, on February 28, 2022, at approximately 11:25 p.m., the Defendant allegedly threw a brick through the window of a restaurant located at 3517 Broadway, entered the restaurant through the shattered window, and took money from the cash register. The burglary was recorded by video surveillance. The Defendant was released on his own recognizance for the offense alleged in Complaint Three; however, he was still subject to the non-monetary supervision requirements ordered in Complaint Two. c. March 18, 2022 Arraignment On March 18, 2022, the Defendant was arraigned on one count of Criminal Mischief in the Fourth Degree (PL §145.00[1]), a class A misdemeanor (“Complaint Four”). The accusatory instrument alleged that on March 17, 2022, at approximately 4:29 a.m., in front of 57 Lenox Avenue, the Defendant pulled on boarding covering the door of a restaurant, causing the door to break. An employee of the restaurant witnessed the incident.¹ The Defendant was again released under supervision and ordered to comply with mandated requirements. Accordingly, between February 14, 2022 and March 18, 2022, the Defendant was arraigned on three different dates, on four separate complaints. Those four complaints charged him with burglarizing three restaurants, breaking the door of a fourth restaurant, and possessing stolen property from a fifth business. d. March 30, 2022 Arraignment and Bail Hearing On March 30, 2022, the Defendant appeared for arraignment in the Criminal Court yet again. This time he was arraigned on two additional accusatory instruments: this marked the fifth and sixth time, in a period of less than two months, that the Defendant was arraigned on burglary and related charges. The first accusatory instrument charged the Defendant with five separate counts of Burglary in the Third Degree (PL §140.20), a class D felony (“Complaint Five”). It alleged that on March 21, 2022, at 12:11 a.m., the Defendant smashed the window of a business at 210 West 118th Street with a rock, entered the location, and took an envelope of cash. Two days later, on March 23, 2022, at 11:09 p.m., he smashed the window of another business, located at 187 Lenox Avenue, with a rock, entered the business, and stole 2 handheld devices and an iPad. The next day, on March 24, 2022, at approximately 5:29 a.m., at 196 Lenox Avenue, he smashed the window of a third business with a rock, entered the premises, and took cash from the register. Then on March 29, 2022, at approximately 3:23 a.m., the Defendant threw a brick through the window of a fourth business, located at 641 Lenox Avenue; then entered that business and took cash from the register. Finally, minutes later on that same date, March 29, 2022, at approximately 3:30 a.m. at 2363 7th Avenue, the Defendant threw a brick through the window of a fifth business, entered the business, and damaged security cameras inside. In each instance, the alleged burglary was captured by video surveillance. The second accusatory instrument charged the Defendant with Criminal Mischief in the Fourth Degree (PL §145.00[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), both class A misdemeanors (“Complaint Six”). This accusatory instrument alleged that on March 24, 2022, at approximately 4:50 a.m., at 210 West 118 Street, the Defendant broke the window of the Cecil Steakhouse restaurant. An employee of Cecil Steakhouse witnessed the incident. A pipe containing crack/cocaine, as well as twelve vials of crack/cocaine, were recovered from the Defendant’s pockets. i. The People’s Bail Application At the Defendant’s March 30, 2022 arraignment, the People requested that bail be set for the offenses charged in Complaint Five. The Court conducted a bail hearing, at which the People argued that the burglaries charged in Complaint Five were qualifying offenses, pursuant to CPL §510.10(4)(t), and therefore were bail eligible. In support of their bail application, the People provided the Court with Complaints One, Two, Three, and Four (in addition to Complaints Five and Six, which were already before the Court for purposes of arraigning the Defendant on those charges). The People also provided supporting depositions for Complaint One and Complaint Four. The defense conceded that Complaints One and Four, together with those supporting depositions, constituted misdemeanor informations.² The People described the underlying facts of the burglaries, criminal mischief, and criminal possession of stolen property alleged in Complaints One through Four. With respect to Complaint Four, in which the Defendant allegedly pulled on boarding covering a sliding door, causing the door to break, the People made an additional factual record. In that case, the incident, which occurred at 4:29 a.m., was witnessed by an employee of the restaurant. According to the People, the reason that the employee was inside the premises at 4:29 a.m. (that is, outside normal business hours) was that employees were sleeping inside the restaurant due to repeated break-in attempts. The People also noted that, with respect to Complaints Two and Four, the judges presiding at the Defendant’s March 3, 2022 and March 18, 2022 arraignments had set non-monetary conditions of release requiring the Defendant to comply with obligations imposed by the CASES Manhattan Pretrial Services Program, including requiring him to appear for an intake/needs assessment appointment. The Defendant, however, had failed to do so. In addition, the Defendant had previously failed to appear in court on four prior occasions, when required to do so. ii. Defendant’s Response In response, the defense argued that the Court should not consider Complaint One, Two, Three, or Four in determining whether the offenses charged in Complaint Five were bail eligible. According to the defense, Complaints One through Four contained unconverted hearsay, and therefore could not provide a basis for a reasonable cause determination, pursuant to CPL §510.10(4)(t). The Defendant further argued that none of the alleged offenses constituted “identifiable harm to person or property” as contemplated by CPL §510.10(4)(t), and therefore that the charges enumerated in Complaints Five and Six were not bail eligible. iii. Court’s Determination At the conclusion of the March 30, 2022 bail hearing, the Court held that the offenses charged in Complaint Five were bail eligible, pursuant to CPL §510.10(4)(t). The Court then considered the least restrictive means to assure the Defendant’s return to court, and set bail in the amount of $40,000 cash, $80,000 partially secured bond at 10 percent, and $80,000 insurance company bond. With respect to Complaint Six, the Court set bail in the amount of $1, at the Defendant’s request. Although the Court explained basis for its ruling on the record on March 30, 2022, this written decision follows, in light of the developing case law regarding the application of CPL §510.10(4)(t) to bail determinations. II. Legal Standards On January 1, 2020, new legislation regarding bail and securing orders went into effect. These new statutes eliminate cash bail for individuals charged with “non-qualifying offenses.” For “qualifying offenses,” on the other hand, courts may select from a number of options in determining the “least restrictive alternative” to ensure the defendant’s return to court, including monetary bail, release under non-monetary conditions, release on recognizance, or under certain conditions, remand. (CPL §§510.10[1]; 510.10[4]) In specifying a pre-determined list of “qualifying offenses,” the Legislature “intended to bridle a court’s discretion, so that, unless a crime constitute[d] a statutorily designated qualifying offense,” courts could not set bail. (People v. Connon, 70 Misc 3d 608, 614 [Cohoes City Ct 2020].) In April 2020, the legislature amended the new bail laws, effective July 2, 2020. The July 2020 amendments “set[] forth additional charges and situations which would constitute a qualifying offense,” thus “grant[ing] the Court the discretion to set monetary bail” in these cases. (People v. Keitt, 71 Misc 3d 539, 541 [Cty Ct, Sullivan Cty 2021].) One addition to the list of qualifying offenses was enumerated in CPL §510.10(4)(t). Pursuant to the version of CPL §510.10(4)(t) in effect at the Defendant’s March 30, 2022 arraignment, an otherwise non-qualifying offense may be converted into a qualifying offense where a defendant is charged with: any felony or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant was released on his or her own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property.³ (CPL §510.10[4][t] [eff Jul 2, 2020]) The People must “show reasonable cause to believe that the defendant committed the instant crime and any underlying crime,” and the underlying crimes need not be qualifying offenses. (Id.) III. Legal Analysis a. Reasonable Cause to Believe that Defendant Committed the Instant and Underlying Crimes To satisfy the requirements of CPL §510.10(4)(t), the People must “show reasonable cause to believe that the defendant committed the instant crime and any underlying crime.” (CPL §510.10[4][t]) At the March 30, 2022 bail hearing, the Defendant argued that the Court could not consider Complaint One, Two, Three, or Four in determining whether the offenses charged in Complaint Five were bail eligible pursuant to CPL §510.10(4)(t), because those complaints contained unconverted hearsay. Because Complaints One through Four had not been converted to informations via supporting depositions, the defense argued, these complaints could not provide a basis for a reasonable cause determination, pursuant to CPL §510.10(4)(t). This argument is rejected. “The fact that the accusatory instrument is not an information, and therefore relies on hearsay, is not necessarily a bar to it being used, in whole or in part, to establish reasonable cause at a CPL §510.10(4)(t) hearing.” (People v. Franklin, 72 Misc 3d 537, 545 [Crim Ct, Bronx Cty 2021].) Rather, in assessing “reasonable cause” pursuant to CPL §510.10(4)(t), the Court may consider factors such as “the accusatory instrument in the case, prosecutor’s notices, defendant’s rap sheet, existence of any warrants, and any other relevant information in their possession,” as well as “the amount of detail provided by the People in or outside of the four corners of the accusatory instrument, the level of specificity in a verified affidavit, the reliability of any hearsay declarants, admissions by the defendant, whether any physical item was recovered, or whether there was an identification procedure,” and any “favorable evidence for the defendant including the existence of any Brady disclosures.” (Id at 546-47.) Indeed, although “reasonable cause is not automatically made out by the filing of an accusatory instrument,” it “could be sufficient, depending on the level of detail provided in the affidavit.” (Id.; Connon, 70 Misc 3d at 614.) i. The Underlying Crimes During the March 20, 2022 bail hearing, the People provided copies of supporting depositions for Complaints One and Four, and defense counsel conceded that those two complaints were converted to informations. And even without supporting depositions for Complaints Two and Three, the Court possessed sufficient information to find reasonable cause to believe that the Defendant had committed the underlying crimes. Complaints One, Two, Three, and Four, together with the additional information presented during the bail hearing, were sufficiently detailed to provide reasonable cause to believe that the Defendant committed the crimes charged therein. The accusatory instruments themselves contain indicia of reliability. The three burglaries charged in Complaints Two and Three, for example, were recorded by video surveillance. And the Defendant allegedly identified himself in two different stills, drawn from surveillance footage of two different burglaries. An employee eyewitness allegedly observed the Defendant inflict the damage to the door of the restaurant described in Complaint Four. Indeed, in that case, the witness signed a supporting deposition corroborating those allegations, providing further indicia of reliability. The People offered additional corroboration at the hearing, explaining that the reason that the employee was present on the premises at 4:29 in the morning, was because of the numerous break-in attempts. Similarly, the People provided a supporting deposition corroborating the allegations in Complaint One. In that case, a “physical item” was also recovered; namely, a stolen check from Alexis Furniture, recovered from the Defendant’s pocket. The nature of the allegations is also relevant to the Court’s “reasonable cause” determination. The underlying crimes charged in Complaints One, Two, Three, and Four, included three burglaries, one count of criminal mischief, and one count of criminal possession of stolen property. These crimes all involved the theft from, or damage to, restaurants and businesses in Harlem, New York County. Each crime took place between the hours of 11:25 p.m. and 5:50 a.m. And in each instance, the Defendant was allegedly either observed by an eyewitness or recorded by surveillance video. Accordingly, the Court determined that the People had demonstrated reasonable cause to believe that the Defendant had committed the underlying crimes, charged in Complaints One, Two, Three, and Four. ii. The Instant Crimes The instant allegations, charged in Complaint Five, combined with the information adduced at the bail hearing, also sufficiently established reasonable cause to believe that the Defendant committed those crimes. Complaint Five charged the Defendant with five additional burglaries of businesses. Each of these businesses was in the same Harlem neighborhood as the crimes alleged in Complaints One, Two, Three and Four, and each of these burglaries occurred between the hours of 11:09 p.m. and 5:29 a.m. In each instance, the Defendant was captured by video surveillance smashing a rock or brick through the window of a business, then entering the business, taking or damaging property, and leaving. The nature of the allegations, the level of detail provided, and the alleged existence of video footage of the Defendant committing these burglaries, together establish reasonable cause to believe that the Defendant committed the instant crimes. b. Felony or Class A Misdemeanor Involving Harm to an Identifiable Person or Property i. Statutory Interpretation Having determined that the People had shown reasonable cause to believe that the Defendant committed the underlying and instant crimes, the Court next considered whether the Defendant’s alleged conduct constituted a “felony or class A misdemeanor involving harm to an identifiable person or property.” This phrase is somewhat ambiguous. Does this statutory language encompass (1) felonies involving harm to an identifiable person or property, and (2) class A misdemeanors involving harm to an identifiable person or property? Or, alternatively, (1) felonies, and (2) class A misdemeanors involving harm to an identifiable person or property? Put another way, must the felonies at issue involve “harm to an identifiable person or property” to fall within the ambit of CPL §510.10(4)(t), or is any alleged felony sufficient (provided that the reasonable cause standard is met)? (See Franklin, 72 Misc 3d at 539 n.2 ["[D]oes the paragraph apply to any felony, or only felonies involving harm to identifiable people or property?”].) Existing case law indicates that any alleged felony is sufficient. (See People v. Spano, 197 AD3d 1211 [2d Dept 2021] [where defendant "was charged with felony offenses that arose from conduct occurring while he was released on his own recognizance on a separate felony charge," the charged crimes "were qualifying offenses under CPL §510.10(4)(t)"]; Brown, 69 Misc 3d at 235 n1 ["This court concludes that the clear and unambiguous statutory language provides two separate categories: (1) all felonies and (2) class A misdemeanors with the aggravating factors."].) Accordingly, where a defendant is charged with a felony, and that felony charge arose from conduct occurring while the defendant was released on his own recognizance or under conditions for a separate felony, the new felony charge may constitute a qualifying offense under CPL §510.10(4)(t). Here, the Defendant stood charged with five counts of burglary in the third degree, a class D felony. These five alleged felonies occurred while the Defendant was released on his own recognizance and under supervision for three other felonies, specifically, three charges of burglary in the third degree. At the March 30, 2022 bail hearing, therefore, the Defendant stood charged with five felony offenses that “arose from conduct occurring while he was released” on separate felony charges, and the charged crimes thus fell within CPL §510.10(4) (t).⁴ The Court notes that, even under the more restrictive interpretation of the statute — that is, an interpretation requiring felonies to involve “harm to an identifiable person or property” — the Defendant’s alleged conduct would still constitute a qualifying offense, because, as set forth below, the alleged felonies constituted “harm to property” within the meaning of CPL §510.10(4)(t). ii. Harm to Property The term “harm” is not defined in CPL §510.10(4)(t). In applying this statute, courts have considered what constitutes “harm to an identifiable person,” holding, for example, that a physical assault clearly constitutes such harm. (Franklin, 72 Misc 3d at 539.) And at least one court has interpreted “harm to an identifiable person” expansively, determining that criminal possession of narcotics, with intent to sell, constitutes “harm to an identifiable person, to wit: the person to whom the defendant was intending to sell the dangerous narcotics.” (People v. Disimile, 71 Misc 3d 331, 333 [Cty Ct, Sullivan Cty 2021].) The definition of “harm to property” is less well defined. Few, if any, published cases explore what constitutes “harm to property” for purposes of CPL §510.10(4)(t); accordingly, the Court looks to the statutory context and legislative history of CPL §510.10(4)(t). The original January 2020 bail reform statute did not include CPL §510.10(4)(t). This changed in July 2020, when the Legislature amended CPL §510.10 to add, inter alia, Section (4)(t). By enumerating “additional charges and situations which would constitute a qualifying offense,” the Legislature “grant[ed] the Court the discretion to set monetary bail” in those cases. (Keitt, 71 Misc 3d at 541; see People v. Brown, 69 Misc 3d 229, 235 [Cty Ct, Orange Cty 2020].) Also relevant to the statutory context and history is the Legislature’s subsequent amendment to CPL §510.10(4)(t), effective May 9, 2022. Though not in effect at the time of the Defendant’s March 30, 2022 arraignment and bail hearing, this new language clarifies the phrase “harm to property,” providing additional context as to the legislative intent behind the phrase. The May 9, 2022 amendment to CPL §510.10(4)(t) added the following language: For the purposes of this paragraph, “harm to an identifiable person or property” shall include but not be limited to theft of or damage to property. However, based upon a review of the facts alleged in the accusatory instrument, if the court determines that such theft is negligible and does not appear to be in furtherance of other criminal activity, the principal shall be released on his or her own recognizance or under appropriate non-monetary conditions. (CPL §510.10[4][t])⁵ Having considered the language, legislative history, and statutory context of CPL §510.10(4)(t), the Court concludes that “harm to property” may include a broad range of non-negligible effects. In expanding the enumerated qualified offenses in July 2020 to include felonies and class A misdemeanors involving “harm to an identifiable person or property,” and in again amending the statute in May 2022 to specify that a court must “review the facts alleged in the accusatory instrument” and make its own determination as to the level of harm, the Legislature has expressed a clear intent to provide courts with the discretion to determine, on a case-by-case basis, whether “harm to property” has been alleged. (Cf. Keitt, 71 Misc 3d at 543.) Here, based on the factual allegations in Complaints Two, Three, Four, and Five, as well as the information adduced at the March 30, 2022 bail hearing, the Defendant’s alleged actions constituted “harm to identifiable property.” Prior to his March 30, 2022 arraignment, the Defendant had been charged with: breaking the front door of a restaurant to access the register; forcing open the cash register at another restaurant; throwing a brick through the window of a third restaurant, causing it to shatter, then entering that restaurant and taking money from the register; and breaking the boarding covering a sliding door of a fourth business — all within a period of less than two months. And on March 30, 2022, the Defendant was charged with smashing the windows of four different businesses, in order to enter them to steal property. In a fifth instance, the Defendant allegedly smashed the window of a business, entered the premises, and damaged security cameras inside. This is not a case of a single broken window. The Defendant allegedly smashed the windows of Harlem businesses over and over, for a three-month period, so that he could enter the buildings to steal money and electronics, and break additional items inside the premises. The repeated damage to these businesses had clear consequences. The economic harm is obvious: the shattered windows, the broken doors, the missing cash and electronics, and the broken security cameras. Indeed, employees of at least one business resorted to actually sleeping inside the premises, due to repeated break-in attempts. In this Court’s view, the damage to the premises and non-negligible theft clearly constitutes “harm to property,” as contemplated by CPL §510.10(4)(t).⁶ The People thus demonstrated reasonable cause to believe that the Defendant committed five counts of Burglary in the Third Degree, while he was released on his own recognizance and under conditions for three other counts of Burglary in the Third Degree, and one count of Criminal Mischief in the Fourth Degree. (CPL §510.10[4][t]) The offenses charged in Complaint Five were therefore “qualifying offenses” for which bail could be set, pursuant to CPL §510.10(4)(t). c. Least Restrictive Means After determining that the offenses charged in Complaint Five were “qualifying offenses,” the Court next considered the “least restrictive alternative” to ensure the Defendant’s return to court. (CPL §510.10[1]) In making this determination, the Court noted that the Defendant had been arrested twelve times, and had six convictions. Three bench warrants had been issued for the Defendant’s failure to return to court on prior occasions, specifically on January 11, 2018, July 30, 2018, and October 19, 2018, in connection with a 2017 assault case.⁷ The Defendant had also failed to appear in court in connection with a 2014 arrest for Criminal Trespass, as well as a 2013 arrest for Criminal Possession of a Controlled Substance in the Seventh Degree.⁸ The Defendant also failed to comply with his court-mandated obligations in the instant cases. Specifically, the Defendant was arraigned for the offenses charged in Complaint One on February 14, 2022. He was released on his own recognizance, and the case was adjourned to March 14, 2022. In the interim, the Defendant was brought to court on March 3, 2022, for his arraignment on the offenses charged in Complaints Two and Three. As a condition of his release on Complaint Two, the Defendant was mandated to comply with the supervision requirements of the CASES Manhattan Pretrial Services Program. The Defendant was assigned Tier 2, Level 5 supervision, which is the highest possible supervision tier. Individuals assigned to Tier 2, Level 5 supervision must attend one in-person check-in per week with CASES Program staff. However, the CASES Program reported that the Defendant did not attend his scheduled check-in appointment scheduled for March 4, 2022, the day after his arraignment on Complaints Two and Three. Nor did the Defendant appear in court on March 14, 2022, for his scheduled court date for Complaint One.⁹ The Defendant also failed to appear at his CASES Manhattan Pretrial Services Program check-in scheduled for March 14, 2022, in connection with the conditions of his release in Complaint Two. In fact, the Defendant did not attend a check-in appointment until March 18, 2022, the date he was brought to court to be arraigned on Complaint Four. The Defendant faced the prospect of significant incarceration on the six outstanding complaints. In addition, the New York City Criminal Justice Agency did not recommend the Defendant for release.¹⁰ For those reasons, the Court set bail in the amount of $40,000 cash or $80,000 partially secured bond or insurance company bond, to assure the Defendant’s return to court and address the risk of flight to avoid prosecution. This opinion constitutes the decision and order of the Court. Dated: November 11, 2022