Summary
In People v Browne, (71 Misc.3d 975 [Sup. Ct. NY Co. 2021]), the court followed the same procedure as the Rodriguez court.
Summary of this case from People v. FieldsOpinion
3151/2017D
04-07-2021
The PEOPLE of the State of New York, Plaintiff, v. Donald BROWNE, Defendant.
For the People: Cyrus Vance, District Attorney, New York County, A.D.A. Daria Andryushchenko, of counsel. For the Defendant: The Legal Aid Society, New York, New York, Kawan Clinton, Esq., of counsel.
For the People: Cyrus Vance, District Attorney, New York County, A.D.A. Daria Andryushchenko, of counsel.
For the Defendant: The Legal Aid Society, New York, New York, Kawan Clinton, Esq., of counsel.
Diane Kiesel, J. The defendant stands charged with robbery in the third degree (PL § 160.05) and grand larceny in the fourth degree (PL § 155.30[5]). The defendant was arrested on August 30, 2017. At his arraignment in Criminal Court on September 1, 2017, he was released on his own recognizance and directed by the Court to return on September 5. He failed to do so and a warrant was issued for his arrest. He appeared on March 2, 2021 pursuant to that bench warrant. The Court conducted a hearing pursuant to CPL § 530.60(2) to determine whether the defendant had persistently and willfully failed to appear after notice of his scheduled September 5, 2017 appearance.
At the hearing, the Court took judicial notice of its own prior proceedings ( People v. Byrd , 57 A.D.3d 442, 443, 870 N.Y.S.2d 284 [1st Dept. 2008] ) and found that the defendant was in court on September 1, 2017 when the case was adjourned to September 5, 2017, that he failed to appear September 5, that a warrant was issued that day, and that the defendant had not returned until he was involuntarily brought back on March 2, 2021. The Court offered the defendant the opportunity to present evidence regarding his failure to appear, but due to the COVID-19 pandemic the proceedings were conducted via Microsoft Teams and defense counsel was unable to privately interview her client about this issue. The Court found clear and convincing evidence that the defendant had persistently and willfully failed to appear as directed, but adjourned the matter to March 4, 2021 for appearance in person and the defendant's rebuttal, if any, of that evidence. In the interim, the Court set the defendant's bail in the amount of $20,000, payable in cash, insurance bond, or partially-secured bond. The amount was set without prejudice in the event defense counsel could rebut the Court's finding.
On March 4, 2021 the Court re-opened the hearing and gave both parties the opportunity to present further evidence. The People presented minutes from the defendant's appearance in Criminal Court on September 1, 2017. The defendant offered no admissible evidence in rebuttal. The People argued that the defendant failed to appear for approximately three and one-half years, after he was explicitly directed to return on September 5, 2017 by a judge. Defense counsel argued that the Court had unlawfully remanded the defendant on March 2, 2021. Defense counsel further argued that CPL § 530.60(2)(b)(i) requires multiple failures to appear and requires the People to demonstrate that they have ruled out every reasonable cause for the defendant's absence, similar to a hearing pursuant to People v. Parker , 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 (1982), to proceed in absentia.
After the hearing, the Court found clear and convincing evidence the defendant had persistently and willfully failed to appear after being notified of his scheduled September 5, 2017 appearance. Based on defense counsel's representations of the defendant's financial circumstances, a factor under the bail law enacted in 2020 ( CPL § 510.30[1][f] ), the Court found the least restrictive alternative necessary to ensure his return to court was bail in the amount of $10,000 cash, insurance company bond, or partially-secured bond, and lowered his securing order accordingly. The Court now issues this written decision, explaining its findings of fact and conclusions of law.
Findings of Fact.
The procedural history of this case is a matter of record, and not disputed by the parties. The defendant was arraigned on a felony complaint on September 1, 2017 in the New York City Criminal Court, Part AR3. The defendant personally promised the arraigning judge that he would return to court. The arraigning judge told the defendant he needed to return to Part F on Tuesday, September 5, "first thing in the morning." The judge further reminded the defendant that he would "be making a terrible mistake to not come back to court." The defendant promised to return. The arraigning judge ensured the defendant understood, and then repeated the date and the court part.
The defendant did not appear in Part F on September 5, 2017. A bench warrant was issued. The defendant did not return to court until he was arrested on another matter and brought before this Court on March 2, 2021, more than three years later.
March 2, 2021.
The defendant argued that the Court unlawfully remanded him on March 2, 2021. The court file demonstrates that the Court did not remand the defendant, but instead set bail in the amount of $20,000. Nor was the imposition of bail unlawful. The Court held a hearing and gave both parties an opportunity to present relevant, admissible evidence ( CPL § 530.60[2][c] ). After the hearing, the Court found clear and convincing evidence that the defendant persistently and willfully failed to appear after notice of the scheduled appearance. The Court was therefore authorized to revoke the defendant's securing order and fix bail ( CPL § 530.60[2][b] ).
Persistently.
The Criminal Procedure Law does not define what it means to "persistently" fail to appear. Where the legislature has not defined a term, courts must "construe words of ordinary import with their usual and commonly understood meaning," using "dictionary definitions as ‘useful guideposts’ in determining the meaning of a word or phrase" Rosner v. Metro. Prop. & Liab. Ins. Co. , 96 N.Y.2d 475, 479–80, 729 N.Y.S.2d 658, 754 N.E.2d 760 (2001). It has long been held that where the words have "a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" Tompkins v. Hunter , 149 N.Y. 117, 122–23, 43 N.E. 532 (1896).
Defense counsel argues that "persistently" means multiple absences. In support of this, the defendant cites to CPL § 530.60(2)(b)(i) ’s reference to failure to appear "after notice of scheduled appearances." The use of the plural "appearances," the defendant argues, indicates the legislature's intent that multiple failures to appear be required.
The Court rejects the defendant's argument. The claim that the legislature intended to require multiple absences is called into question by its failure to explicitly say so. Such a claim is further undermined by the legislature's decision to use the word "persistently." Dictionary definitions of "persistently" suggest that the word encompasses both repeated conduct and prolonged conduct:
• Google.com: "in a persistent manner; continuously" (persistently — Google Search, https://www-google-com.sw.library.ntpu.edu.tw:8443/search?q=persistently & ie= & oe [last accessed Mar. 4, 2021]).
• Dictionary.com: "lasting or enduring tenaciously [or] constantly repeated; continued" (Persistent | Definition of Persistent at Dictionary.com, https://www.dictionary.com/browse/persistently?s=t
[last accessed Mar. 4, 2021]).
• Oxford: "in a way that continues for a long period of time, or that is repeated frequently, especially in a way that is annoying and cannot be stopped" (Oxford Learner's Dictionaries, persistent, http://www.oxfordlearnersdictionaries.com/us/definition/english/persistently [last accessed Feb. 11, 2021]).
• Merriam-Webster: "existing for a long or longer than usual time or continuously" (Merriam-Webster Online Dictionary, persistent, http://www.merriam-webster.com/dictionary/persistently [last accessed Feb 11, 2021]).
• Cambridge: "happening repeatedly or for a long time, or difficult to get rid of." (Cambridge Dictionary, persistently, http://dictionary.cambridge.org.sw.library.ntpu.edu.tw:81/us/dictionary/english/persistently [last accessed Feb. 11, 2021]).
That the legislature chose to use this word, instead of an alternative such as "repeatedly" that would more clearly require multiple absences demonstrates that such a claim is speculative at best.
When the language used by the legislature "leaves its purpose and intent uncertain or questionable," the Court must fall back on New York's rules of statutory construction ( People ex rel. NY Cent. & H. R.R. Co. v. Woodbury , 208 N.Y. 421, 425, 102 N.E. 566 (1913)). General Construction Law § 35 states that words "in the plural number include the singular." The Court concludes, therefore, that the use of "appearances" in the plural does not bar the finding of persistent and willful failure to appear based on a single failure to appear. To hold otherwise would fail to sanction the most willful of offenders, those who abscond once and remain in hiding.
In determining how long a failure to appear will satisfy the statute, the Court refers to existing criminal statutes dealing with a defendant's prolonged failure to appear. In enacting bail jumping statutes, the legislature has criminalized a failure to appear for 30 days or longer (PL §§ 215.55, 215.56, 215.57). The Court, therefore, can safely infer that an absence of 30 or more days would be longer than acceptable or "persistent." Here, the defendant failed to appear on September 5, 2017 and did not come back until his involuntary return on March 2, 2021, nearly three and one-half years later.
Willfully.
In enacting CPL § 530.60(2)(b), the legislature also failed to define what it means for a defendant to "willfully" fail to appear in court when directed. "Willful ... is perhaps the most conflated, confusing, and confounding of all criminal mental states" (Andrew M. Stengel, Note, Criminal Culpability's Wild Mens Rea: Use and Misuse of "Willful" in the Laws of New York , 4 Alb Govt L Rev 779 [2011] ). The legal history of the term "willful" demonstrates "that it does not have a single meaning; rather, its meaning must be discerned by the context of the statute in which it is used" (William C. Donnino, Supplementary Practice Commentary, McKinney's Cons Laws of NY, Penal Law § 15.00 ).
The Court rejects the defendant's argument that the People must call witnesses to prove the defendant was able to come to court. In the present context it is the determination whether a litigant, who had notice of his obligation to return to court, nonetheless disregarded that obligation. The Court analogizes this situation to "[w]ilful disobedience to its lawful mandate" ( Judiciary Law § 750[3] ). In such cases, "knowingly failing to comply ... gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance" ( Dalessio v. Kressler , 6 A.D.3d 57, 66, 773 N.Y.S.2d 434 [2d Dept. 2004] ; see also People v. Coe , 71 N.Y.2d 852, 855, 527 N.Y.S.2d 741, 522 N.E.2d 1039 [1988] [interpreting "willfully" to mean "knowingly"]). The instant record clearly demonstrates that the arraignment court went to great pains to ensure the defendant was aware of his obligation to return to court on September 5, 2017. The Court twice repeated the date and the court part, secured the defendant's promise he would return, and informed him that, among other consequences, a bench warrant for his arrest would be issued if he failed to appear. Thereafter the defendant did not return to court until he was arrested and brought back in handcuffs. The Court finds the defendant's knowing failure to return to court gives rise to an inference of willfulness, which was unrebutted by the defendant.
Conclusion.
After conducting a revocation hearing pursuant to CPL § 530.60(2)(c), the Court finds clear and convincing evidence that the defendant "persistently and willfully failed to appear after notice of scheduled appearances in the case before the court" ( CPL 530.60[2][b][i] ). The defendant failed to return to court on September 5, 2017 despite being personally informed of this scheduled appearance in open court. The defendant was arrested and returned to court pursuant to a bench warrant just three days shy of three-a-half years later.
The Court therefore ordered that the defendant's securing order be revoked, and issued a new securing order, setting bail in the amount of $10,000 cash, $10,000 insurance company bond, or $10,000 partially-secured bond at 10 percent. This constitutes the least restrictive alternative to insure the defendant's return to court (See CPL § 510.10[1] ).
This constitutes the Decision and Order of the Court.