DECISION & ORDER Defendant moves to dismiss indictment 70160-21 in furtherance of justice pursuant to CPL 210.40; for an Outley hearing pursuant to People v. Outley, 80 N.Y.2d 702 [1993]; for a CPL 530.60 hearing; a stay of sentencing; and reserving the right to make additional motions as necessary. For the reasons stated below, the Court denies all relief requested in defendant’s motion. FACTS AND PROCEDURAL HISTORY The police arrested defendant, a persistent felony offender, on June 25, 2021, for Burglary in the Second Degree in violation of PL 140.25[2], and lesser included offenses. The People timely indicted defendant and the court arraigned him on July 9, 2021, before Justice Marina Mundy. The top charge against defendant was Burglary in the Second Degree (PL 140.25[2]), a C violent felony offense. This charge qualified for bail under CPL 510.10[4], and the court set bail at $5,000 cash, $10,000 bond. Defendant did not post bail. Counsel for defendant reported to the court that defendant was in intensive care due to a serious medical condition on September 15, 2021, and requested defendant’s immediate release from custody. The court granted defendant’s request seeking his immediate release from custody for medical treatment on consent of the People. The court conditioned his release on his own recognizance based on the understanding that defendant would continue receiving medical care in the nursing home or with the help of his mother and check in with his doctors. It is unclear if defendant was physically present for the September 15 court date. The court adjourned the case to September 27, 2021. A review of the court record from September 27, 2021, shows that defendant was not physically present in court that day. Counsel stated on the record that he needed more time to find defendant’s whereabouts. The Court once again noted that defendant’s release from custody was due to his terminal illness and the inability of Correctional Health Services to provide adequate care for him. Justice Mundy advised counsel that the court required an update concerning defendant’s medical condition and place of residence at the next court date. Justice Mundy informed defendant’s counsel that defendant’s failure to appear or counsel’s failure to provide this necessary information would result in a warrant ordered stayed. Defendant failed to appear at the next court date on October 19, 2021, and counsel could not provide the requested information to the court. The court issued a bench warrant due to defendant’s lack of compliance, but ordered it stayed until November 10, 2021. Defendant failed to appear on November 10, 2021, and the court issued a bench warrant. Defendant was involuntarily returned to court on April 18, 2022. Bail was reinstated in the original amount by this Court. Defendant pled guilty to the lesser charge of Burglary in the Third Degree, a class D felony, in violation of PL 140.20, and entered into a written plea agreement with the District Attorney’s Office on June 28, 2022. The Court advised defendant, and defendant acknowledged his understanding without requesting further explanation, of the contents of the written plea, in open court. The plea agreement entered into on June 28, 2022, was, as far as this Court can tell, fashioned to accommodate defendant’s medical condition and provided that defendant would be released to Intensive Supervised Probation (ISP) on the date of his plea while pending sentence. The terms of this release required defendant to check in with a probation officer every two weeks and reside with his mother on Staten Island. The release also acknowledged the severity of defendant’s illness, and part of the agreement indicated that defendant was to continue palliative chemotherapy at Elmhurst Hospital, as per his doctor’s instructions. Defendant acknowledged that he must appear in court on all scheduled court dates and cannot commit any new crimes while he is pending sentence and acknowledged that any new arrest or failure to appear in court, along with any other breach of the agreement will serve as a basis for a violation of his plea agreement requiring a state prison sentence. Pursuant to this plea, this Court released defendant on June 28, 2022 to ISP, and adjourned his case to the sentencing calendar on August 16, 2022. Defendant did not appear on August 16, 2022 and this Court issued a warrant post-plea. Defendant was involuntarily returned to court on the warrant on September 21, 2022. Counsel for defendant stated that he had difficulty reaching him, and lost contact with defendant. Upon defendant’s return, this Court learned that defendant failed to complete the assessment with Supervised Release, failed to report to probation on three separate dates1, and was rearrested for two additional burglaries in Queens County which occurred on July 21, 2022, and August 30, 2022. Since defendant violated nearly every condition of his plea agreement, this Court remanded defendant and ordered an Investigation and Sentence Report pursuant to CPL 390.20(1) when defendant was involuntarily returned on a warrant on September 21, 2022. The Court adjourned the case to October 11, 2022, for sentencing. Counsel for defendant argued vehemently for defendant’s release on several subsequent court dates, citing his poor health and terminal condition. Defendant filed this motion on December 2, 2022, and the People responded orally on December 5, 2022. CONCLUSIONS OF LAW 1. Motion to dismiss the indictment in furtherance of justice pursuant to CPL 210.40 The Appellate Division, Second Department has held that a defendant’s motion pursuant to CPL 210.40 should be summarily denied for failure to show good cause for making the motion more than 45 days after his arraignment. People v. Rahmen, 302 A.D. 408, 409 [2d Dept 2003]. Courts of coordinate jurisdiction have followed suit, such as People v. McLaren (36 Misc.3d 448, 453 [Sup. Ct. Queens Cty. 2012]), which relies on precedent from the Appellate Division, First, Department, acknowledging that a court may, within its discretion, entertain and dispose of a pretrial motion before sentence when the movant demonstrates “good cause” for the delay. People v. Pittman, 228 A.D.2d 225 [1st Dept. 1996]; CPL 255.20[3]).2 Here, defendant’s actions, namely failing to report to supervised release and probation, failing to show up for his scheduled court date, and his subsequent arrests, demonstrate that defendant blatantly disregarded the terms of his plea. Despite numerous acts of leniency displayed by the Court, defendant failed to realize the gravity of his situation. Consequently, defendant failed to demonstrate a “good cause” substantiating this application on the eve of sentencing. The instant motion to dismiss in furtherance of justice is grossly untimely and will be summarily denied. 2. Motion for an Outley hearing pursuant to People v. Outley, 80 N.Y.2d 702 (1993) Defendant moves this Court for an Outley hearing in connection with the guilty plea accepted on June 28, 2022. Defendant’s attorney maintains that defendant is entitled to a hearing prior to sentencing when a court seeks to depart from the promised sentence due to alleged violations of post-plea conditions. Defendant’s overly broad interpretation of the Outley case is misplaced. The Outley case stands for the proposition that when a defendant accepts a guilty plea expressly conditioned upon not being rearrested pending sentence, and is arrested between his plea and sentence, the court can enhance defendant’s sentence; however, if an issue is raised concerning the validity of said post-plea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which defendant has an opportunity to show that the subsequent arrest is without foundation. The nature and extent of the inquiry is within the court’s discretion (Id. at 713). To comply with due process, the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate (Id. at 712). The Outley Court specifically addressed a re-arrest of defendant at the time between plea and sentence, and not violations of any other conditions of a guilty plea. To date, counsel has not raised any issues concerning the validity of defendant’s two subsequent arrests, nor has he denied any involvement in the underlying crimes. Counsel further fails to recognize that defendant’s two subsequent arrests are far from the sole reason why his sentence will be enhanced. Defendant violated every condition of his plea agreement. The plea agreement states: “Ricky Howell acknowledges that he must appear in court on all scheduled court dates, and on any date that the Judge instructs him to be present. Ricky Howell also acknowledges that he cannot commit any new crimes while he is pending sentence. Ricky Howell understands that any new arrest or failure to appear in court will serve as a basis for a violation of this plea agreement. This could result in additional charges for a new criminal case and will also result in Ricky Howell having his bail reinstated or being remanded in this case. This will also result in this case proceeding to sentence. Ricky Howell acknowledges that if he fails to abide by his promises in this plea agreement, he is facing a state prison sentence that will be between two to four years’ incarceration and three and a half to seven years’ incarceration” (Howell plea agreement at 2). Defendant never complied with Supervised Release. Defendant was never placed on ISP because he never kept an appointment with his probation officer. Defendant failed to come to court on the date he was scheduled to be placed on ISP. Case law is abundantly clear that defendant’s failure to appear in court on the scheduled sentencing date constitutes a violation of the plea agreement. Therefore, Supreme Court is no longer bound by the plea promise and could properly impose an enhanced sentence. (People v. Figgins, 87 N.Y.2d 840, 841 [Ct. App. 1995] see also People v. Smith, 160 A.D.3d 664, 665 [2d Dept. 2018]; People v. Canty, 206 A.D.3d 756 [2d Dept. 2022]). Since this matter is in a post-plea posture, this Court views defendant’s ISP date as analogous to a sentence date. To treat a post-plea ISP date differently that a sentence date is illogical and would, in effect, tie the hands of the court. Counsel relies on People v. Koons, 187 A.D.3d 1638 [4th Dept. 2020], which suggests that a defendant is afforded due process when, during a period of ISP where the probation department charged defendant with violations of the ISP conditions, the court determined, after a hearing, that defendant had violated the conditions of ISP and sentenced him to prison. This Court would first like to point out that counsel has Koons cited as a Second Department case, which it is not. Therefore, it is not controlling on this Court. Further, the defendant in Koons had already been placed on ISP and violated probation’s conditions. Here, defendant was never placed on ISP because he violated this Court’s conditions by failing to go to probation. This Court has assured itself, after reviewing the Court file, transcripts from prior Court dates, and documentation provided by both the People and defendant, that the information upon which the sentence is based is reliable and accurate (Outley, at 712). Defendant was told in very clear terms that if he failed to appear on his ISP date that he would be in violation of the above agreement. Defendant left the courtroom and blatantly disregarded everything this Court advised him of and every term of the written agreement, which is exactly what defendant did when Justice Mundy released him with special conditions on September 15, 2021. While this Court has compassion for the situation defendant is facing, the Court also bears the responsibility of holding defendant accountable for his actions. If released to the care of a nursing home, there is nothing preventing defendant from absconding, committing more crimes, and not appearing before this Court as necessary. Defendant has shown this court time and again, that this is exactly what he would do. 3. Motion for a CPL 530.60 hearing Defendant claims that the securing order currently in place, remand status, was modified without a hearing pursuant to CPL 530.60, thus violating CPL 530.60. Defendant deliberately violated nearly every condition of his plea. While pending sentence, after his involuntary return on a bench warrant, this Court remanded defendant, ordered a pre-sentence report, and set a date for sentencing. This Court finds defendant’s application for a CPL 530.60 hearing to be completely counterintuitive and misplaced. A court, well within its rights to sentence a defendant to state prison, need not modify its securing order before doing so. To hold otherwise would be foolish. Defendant was remanded for the sole purpose of being interviewed, as required by law, by the Department of Probation prior to sentencing. This Court believes it is abundantly clear that remand was the least restrictive means to ensure defendant would return to court for his sentence date. This Court is unaware of a single case, nor has defendant provided any case law, standing for the proposition that a CPL 530.60 hearing is necessary post plea, especially when defendant has violated every single condition of his plea. CPL 530.45 governs orders of recognizance or bail, after conviction and before sentence. CPL 530.45(2)(a) states, in sum, that “when a defendant charged with an offense that is not such a qualifying offense is convicted, whether by guilty plea or verdict, in such criminal action or proceeding of an offense that is not a qualifying offense, the court may, in accordance with law, issue a securing order: releasing the defendant on the defendant’s own recognizance, or under non-monetary conditions where authorized, fix bail, or remand the defendant to the custody of the sheriff where authorized.” CPL 530.45, in addition to being poorly drafted, does not define the term “where authorized.” However, there is a reasonable argument that the Court has the authority to order remand where a defendant has been convicted but not yet sentenced. The direction to release defendants on recognizance or under non-monetary conditions under the statute is described in three statutory provisions as requiring release “pending trial.” See CPL 510.10(1); CPL 510.10(3); and CPL 530.20. This language arguably indicates the Legislature’s intent to make these release requirements apply only prior to a conviction. That construction is consistent with the statute’s purpose to reduce pre-trial incarceration of those presumed to be innocent. That principle is not implicated for convicted defendants. There is also a reasonable argument that the general “least restrictive alternative rule” does not apply following a conviction for either qualifying or non-qualifying offenses, since that rule is expressed in the aforementioned statutes as applying “pending trial” (See Hon. Daniel Conviser, New York’s Bail Reform Law; a Bench Book for Judges [2019]). Defendant has pled guilty and is no longer presumed to be innocent. This Court is authorized to remand defendant after his plea of guilt to a non-qualifying offense, as the Court did here. 4. Release under non-monetary conditions pending a CPL 530.60 hearing As defendant’s motion for a CPL 530.60 hearing was denied above, his motion for release pending a CPL 530.60 hearing is also denied. 5. Staying of sentence until such time as defendant may make an application pursuant to CPL 530.45 Defendant seeks a stay of sentence until such time as defendant may make an application pursuant to CPL 530.45 for the Appellate Division to review the securing order and set a less restrictive order. CPL 530.45(3), states that defendant must allege in his application that he intends to take an appeal to an intermediate appellate court immediately after sentence is pronounced. Since it would appear the sentence must be imposed prior to defendant’s application to the Appellate Division, defendant’s motion for a stay of sentence is denied. 6. Reserving the right to make additional motions as necessary Defendant was given an opportunity to file additional motions in response to the People’s oral arguments on December 5, 2022. Counsel for defendant agreed, in open court, that should he wish to file an additional motion he would do so by December 12, 2022. Defendant did not file additional motions. As such, his motion to make additional motions as necessary is denied. This constitutes the decision and order of the Court. Dated: January 25, 2023
