DECISION The Defendant, Melvin Fields, is charged with Petit Larceny (PL §155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40). The Defendant now appears before the court, involuntarily returned on a bench warrant by the New York City Police Department.1 The court conducted a hearing on February 6, 2023, to determine if the Defendant had willfully and persistently failed to appear in court after notice of scheduled appearances, and, if so, the least restrictive means to reasonably ensure his return to court. BACKGROUND On September 1, 2022, at approximately 4:24 p.m., the Defendant is alleged to have stolen certain property from a residence located at 618 Montgomery Street in Brooklyn. At the time of his arrest, the Defendant allegedly admitted that the property did not belong to him but alleged that he had found it. The Defendant, who is represented by the Legal Aid Society, was first arraigned on September 2, 2022, bail was set pursuant to CPL §510.10(4), and the matter was adjourned to September 7, 2022, for the CPL §170.70 date in Part AP3. At the time of the arraignment, the Defendant also had four open bench warrants. On September 7, 2022, the Defendant was produced before the court in Part AP3 by the Department of Corrections. He was then released on his own recognizance and notified by the court, on the record, that the matter was adjourned to October 11, 2022. Although the Defendant did not appear in court on October 11, 2022, an attorney from the Legal Aid Society appeared and was notified by the court that a bench warrant was stayed and the matter was adjourned to October 17, 2022, for the Defendant to voluntarily appear. On October 17, 2022, neither the Defendant nor his attorney appeared in court and a warrant was ordered. The Defendant was involuntarily returned to court on February 6, 2023, after being arrested on another matter. THE PROCEDURE FOR ISSUING A BENCH WARRANT CPL §510.50(2), in pertinent part, states that “the court, prior to issuing a bench warrant for a failure to appear for a scheduled court appearance, shall provide at least forty-eight hours notice to the principal or the principal’s counsel that the principal is required to appear, in order to give the principal an opportunity to appear voluntarily.” The Legislature enacted this process to require the court to give both notice of a new court date and an opportunity for a defendant to return voluntarily after failing to appear on their court date. This notification gives the defendant a fixed time to voluntarily return and avoid the issuance of a bench warrant. The court is permitted to issue a bench warrant only after the mandated fortyeight- hour grace period has elapsed, and upon proper notice to the defendant or defense counsel. THE WILLFUL AND PERSISTENT HEARING In order to modify an order of release, a release under non-monetary conditions, or cash bail, the court must find by clear and convincing evidence, that a defendant willfully and persistently failed to appear after notice of scheduled appearances in the case before the court (CPL §530.60[2][b][i]). Before revoking an order of recognizance, release under non-monetary conditions, or bail the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged (CPL §530.60[2][c]). In order to revoke a securing order under CPL §530.60(2)(b)(i), a defendant is entitled to a hearing pursuant to CPL §530.60(2)(c) (People ex rel Patterson v. Krapf, 74 Misc3d 872 [Sup. Ct. Columbia Co 2022]). However, neither CPL §530.60(2)(c), nor any controlling appellate authority, (see, People ex rel Rankin v. Brann, 201 AD3d 675, 678 [2d Dept 2022]), requires the court to hold a full evidentiary hearing to determine a defendant’s status as a willful and persistent absconder. The Legislature could not have intended a full evidentiary hearing when a defendant is involuntarily returned on a warrant, or it would have provided a manner for the court to secure the appearance of an absconding defendant pending the evidentiary hearing. The alternative would be to release a defendant again when involuntarily returned on a warrant, adjourn the proceeding for the parties to obtain witnesses and evidence, which would allow a defendant to abscond again. The court would then be required to set a new statutory forty-eight-hour grace period before another bench warrant could be issued and initiate an endless cycle of adjournments and warrants that would frustrate the court’s ability to conduct a willful and persistent hearing or proceed to trial. In People v. Rodriguez, (71 Misc3d 707 [Sup. Ct. NY Co. 2021]), the court conducted a summary hearing pursuant to CPL §530.60(2)(b)(i) immediately upon the defendant’s involuntary return on a warrant. During the hearing, the Rodriguez court rejected the argument that the People were required to call witnesses, but did allow the parties to present relevant and admissible evidence, and took judicial notice of its own court records to determine by clear and convincing evidence that the defendant had willfully and persistently failed to appear at scheduled appearances. The Rodriguez court held that willful was the equivalent of knowingly and that a continuous absence from court was sufficient to establish the element of persistence. In People v. Browne, (71 Misc3d 975 [Sup. Ct. NY Co. 2021]), the court followed the same procedure as the Rodriguez court. A summary hearing was held, the Browne court took judicial notice of its own records and determined by clear and convincing evidence that the defendant had willfully and persistently failed to appear at scheduled appearances. After the finding at the summary hearing, the Browne court reopened the hearing, but the defendant was unable to rebut the previous finding. The Browne court rejected the idea that multiple absences were necessary to make a finding of a persistent absence, and instead found that a continuing absence was sufficient to determine persistence. In People v. Chensky, (67 Misc3d 373 [Sup. Ct. Nassau Co. 2020]), the court found that a conscious disregard of scheduled court dates coupled with the defendant’s failure to appear on two court dates and to voluntarily surrender on the bench warrant was clear and convincing evidence of a willful and persistent failure to return to court on scheduled court dates. This Court agrees with the Rodriguez and Browne courts, that a summary hearing, held immediately upon a defendant’s return on a warrant satisfies the requirements of CPL §530.60(2)(c) in determining the revocation of a securing order pursuant to CPL §530.60(2)(b)(i). To hold otherwise would hinder the court’s ability to conduct its own proceeding. Furthermore, this Court holds that clear and convincing evidence may be established by taking judicial notice of the court’s records (Rodriguez, supra; Browne, supra). It is beyond cavil that the court may take judicial notice of its own records when conducting a summary hearing pursuant to CPL §530.60(2)(b)(i) (see Matter of Ordway, 196 NY 95, 98 [1909]; New York v. Dritz, 259 AD 210, 210 [2d Dept 1940]; People v. Hussein, 177 Misc2d 139, 141 [Crim. Ct. Kings Co. 1998]), to establish that (1) notice was given to the defendant or defense counsel of scheduled court dates, and (2) the defendant was not present in court on scheduled court dates (CPL §510.50[2]). This is not a novel use of court records. Indeed, even prior to the passage of the current versions of CPL §§510.50 and 530.60, it was normal practice for the court to rely upon the court file to determine a defendant’s absence when a warrant was issued, and the determination of how best to secure a defendant’s future appearance once the warrant was vacated. Moreover, the People are often without their file when a defendant is returned on a warrant and defendants often benefit from the use of the court records to extend favorable plea offers that are noted in the court file at the time of warrant. The court record is often the only available and reliable source of information when a defendant is returned on a warrant, and it has been traditionally relied upon not just by the court but also by defendants and the People. Various courts have grappled with the meaning of the terms “willful” and “persistent” as contemplated by CPL §530.60(2)(b)(i) (see Rodriguez, supra; Brown, supra; Chensky, supra). This Court holds that a willful failure to appear is a knowing, conscious disregard of the scheduled court dates (id.). The willful nature of the absence may be inferred by a defendant’s failure to voluntarily return to court within the forty-eight-hour grace period. This Court also holds that a persistent failure to appear is a failure to appear for two continuous court dates scheduled more than forty-eight hours apart. The persistent nature of the absence may be inferred by a defendant’s failure to appear on one date and to voluntarily return within the statutorily prescribed time. Thus, the court need not look beyond a fair interpretation of the statutory language of CPL §§510.50 and 530.60 to define willful and persistent. In determining a defendant’s willful and persistent status, the court must find that (1) the defendant was notified of the next scheduled court date; (2) the defendant failed to appear on the notified date; (3) the defendant or defense counsel was notified of the date scheduled for the defendant to voluntarily surrender; (4) the voluntary surrender date was scheduled at least forty-eight hours after the defendant’s missed court date; and (5) the defendant did not appear in court on the voluntary surrender date (see CPL 510.50[2] & 530.60[2][b][i]). When the court records show that a defendant failed to voluntarily return after the forty-eight-hour grace period, the court may infer that the defendant willfully and persistently failed to appear. However, the court records may be rebutted by the defendant presenting relevant, admissible, non-legally privileged evidence that either proper notice was not provided to the defendant or defense counsel, or that the failure to appear in court was not willful or persistent (CPL §530.60[2][c]). Many defendants are involuntarily returned on a warrant when they are arraigned on a new arrest. As is often the case, the attorney arraigning the new case is not the attorney who originally represented the defendant on the warrant matter. Thus, defense counsel is often constrained to rely upon privileged information that cannot be easily verified or even presented in admissible form. In many scenarios involving an involuntary return on a warrant, a defendant would be forced to testify in order to present evidence in admissible form. For example, a defendant who testifies truthfully that they were hospitalized could not introduce hospital discharge papers in their possession at the hearing, as the hospital records would not be in admissible form. This is an ethical conundrum for defense counsel and leaves the defendant without the practical ability to present evidence as contemplated by CPL §530.60(2)(c). Thus, in accordance with the Rodriguez and Browne courts, this Court also holds that the defendant may be granted leave to reopen a hearing and present additional admissible documentary evidence or witness testimony relevant to the specific court dates that form the basis for the determination in the willful and persistent hearing. The CPL §530.60(2)(c) hearing may be reopened, in the discretion of the court, when there is an offer of proof by the defendant that there is new relevant and admissible evidence.2 DISCUSSION In the instant matter, a hearing pursuant to CPL §530.60(2)(b)(i) was conducted on February 6, 2023, when the Defendant was involuntarily returned on a warrant. A review of the court file shows that on September 1, 2022, the Defendant was present in court for his arraignment, where cash bail was set, and he was informed that the next court date was scheduled for September 7, 2022. The Defendant was produced by the Department of Corrections on September 7, 2022, and appeared in person before the court, where he was released on his own recognizance, and notified that his next scheduled court date was October 11, 2022. The Defendant did not appear on October 11, 2022, a bench warrant was stayed, and defense counsel was notified in court of the next scheduled court date of October 17, 2022. The Defendant did not voluntarily surrender on October 17, 2022, and a bench warrant was ordered. The Defendant returned involuntarily in police custody on February 6, 2023. While the Defendant conceded that he missed his court date, defense counsel requested that the court release the defendant under the supervision of the Brooklyn Justice Initiatives, who could help provide the Defendant with structure and ensure his return to court. There was no other information presented to the Court. The court records show that the Defendant was notified in person of his scheduled court date, and upon failing to appear, defense counsel was notified of the next scheduled court date, which was over six days later, and upon failing to return to court, a bench warrant was ordered (CPL §510.50[2]). The Defendant did not present any relevant, admissible, non-legally privileged evidence to show that the absence was not willful or that the Defendant returned voluntarily within the statutory grace period (id.). Accordingly, the Court finds, by clear and convincing evidence, that the Defendant willfully and persistently failed to voluntarily return to court on his scheduled court dates (CPL §530.60[2][b][i]). CONCLUSION The People requested $1,000.00 cash bail, $1,000.00 partially secured bond, and $1,000.00 insurance company bond. The Defendant requested that he be released under the supervision of Brooklyn Justice Initiatives. In applying the factors set forth in CPL §510.30 to determine the least restrictive means of reasonably ensuring the Defendant’s return to court, the court finds that a monetary securing order is the least restrictive means. Among other things, the Court considered that the Defendant scores eight out of twenty-five by the Criminal Justice Agency and is not recommended for release; has used over a dozen aliases; has used multiple dates of birth; has thirty-nine prior convictions, including one violent felony and three non-violent felony convictions; fifteen prior failures to appear, in addition to the instant warrant; one parole revocation; one failure to register as a sex offender; and chose not to return voluntarily in this proceeding for one-hundred thirteen days, only returning involuntarily when arrested in a new matter. Such willful conduct, coupled with the history of warrants and refusal to comply with parole and SORA supervision, evinces an unwillingness to return to court on his own recognizance or under supervised release. Accordingly, a monetary securing order is set in the following amounts: $1,000.00 cash bail; $2,000.00 surety bond, partially secured at 10 percent by the signatures of two obligors, neither of which shall be the defendant; and $2,000.00 insurance company bond. All other forms of monetary security have been considered and denied. The matter is adjourned for February 10, 2023, in Part AP1F for the CPL §170.70 date. The Defendant is granted leave to reopen the willful and persistent hearing to present additional, admissible documentary evidence or witness testimony relevant to his absence from court on October 11, 2022, and October 17, 2022, upon a sufficient offer of proof. The foregoing constitutes the decision and order of the court. Dated: February 9, 2023
