Opinion
July 31, 1985
Robert M. Morgenthau, District Attorney ( Andrew Goldsmith of counsel), for plaintiff.
Robert J. Hayes for defendant.
This motion raises the important and widely debated question of whether an allegation by the People that a bailed defendant is threatening witnesses justifies revocation of his bail — or, more broadly, whether, and under what conditions, preventive detention is constitutionally and/or statutorily permissible in this State. It arises shortly after enactment of the Federal Comprehensive Crime Control Act of 1984 ( 98 US Stat 1976), which includes, as its "most controversial" provision, permission for a judge to consider the defendant's likely danger to the community — a provision "drawing fire from civil libertarians". (Feinberg, Crime Control Act of 1984 — Changes in Criminal Procedure, NYLJ, Feb. 20, 1985, p 1, cols 3, 4.) This Federal statute, it has been said, "alters the underlying philosophy of the nation's bail laws." ( Id., at p 2, col 1.)
For the reasons stated below, I hold that although New York State has considered taking the same controversial step, our Legislature has not, in fact, sanctioned preventive detention on the ground of danger to the community. Accordingly, the People's motion is denied.
FACTS
The defendant, Louis Saulnier, was arrested on March 29, 1985 and charged with assault in the second degree. The arraigning Judge set bail at $1,500 bond or cash and defendant was released on April 12, having posted a bond. He was subsequently indicted for that crime.
On May 21, the People brought a motion to revoke bail. They charged that during the period of his release Saulnier had threatened one of the witnesses to the alleged assault with bodily harm if the witness were to testify at Saulnier's trial. This, they argued, constituted sufficient basis for the revocation of bail under the "for good cause shown" standard of CPL 530.60. The question of the legality of preventive detention in the context of bail revocation was thus squarely raised.
LAW
Bail conditions in New York are governed by the Federal Constitution, the State Constitution and the CPL.
The State Constitution's provision is based on the Federal Constitution, which, of course, is supreme.
N Y Constitution, article I, § 5 states: "Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained."
This provision, like its Federal counterpart, protects defendants against excessive bail but does not create an absolute right to bail under all circumstances. ( People ex rel. Klein v Krueger, 25 N.Y.2d 497; People ex rel. Shapiro v Keeper of City Prison, 290 N.Y. 393; see also, N Y Temp St Commn on Const Convention, Individual Liberties: The Administration of Criminal Justice, ch 2 ["Bail"], at 25-38 [1967].)
Pursuant to this constitutional mandate, the Legislature has enacted numerous statutes regulating the imposition, forfeiture and revocation of bail. ( See generally, CPL art 500.) CPL article 530 specifically dictates when recognizance or bail is mandatory, discretionary, or prohibited.
These statutes are further modified by CPL 510.30 (2) (a) which lays down the criteria a judge must apply when she/he has discretion to issue an order of recognizance or bail. That section requires that "[w]ith respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required. In determining that matter, the court must, on the basis of available information, consider and take into account: [eight enumerated factors]" (emphasis added).
These factors are:
"(i) The principal's character, reputation, habits and mental condition;
"(ii) His employment and financial resources; and
"(iii) His family ties and the length of his residence if any in the community; and
"(iv) His criminal record if any; and
"(v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 Fam. Ct. Act of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and
"(vi) His previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and
"(vii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and
"(viii) If he is a defendant, the sentence which may be or has been imposed upon conviction." (CPL 510.30 [2] [a].)
None of the enumerated factors refer to or in any way encompass danger to the community. Thus, it is clear that the only goal a judge may consider in setting discretionary bail under the current statutory scheme is to ensure the presence of defendant. ( Matter of Sardino v State Commn. on Judicial Conduct, 58 N.Y.2d 286, 289; People ex rel. Mordkofsky v Stancari, 93 A.D.2d 826, 827 [2d Dept 1983].)
The People argue that no such criteria limit a judge's discretion in the decision whether to revoke bail under CPL 530.60. That statute, enacted in 1970, states in relevant part: "1. Whenever in the course of a criminal action or proceeding a defendant is at liberty as a result of an order of recognizance or bail issued pursuant to this article, and the court considers it necessary to review such order, it may, and by a bench warrant if necessary, require the defendant to appear before the court. Upon such appearance, the court, for good cause shown, may revoke the order of recognizance or bail. If the defendant is entitled to recognizance or bail as a matter of right, the court must issue another such order. If he is not, the court may either issue such an order or commit the defendant to the custody of the sheriff." (Emphasis added.) A reading of the remainder of the bail revocation statute and the Practice Commentary belies this contention. In 1981, the Legislature augmented CPL 530.60 by adding subdivision (2) (a), which specifically authorizes revocation for the commission of a class A or violent felony while on bail.
The 1981 amendment also provides for the procedural and evidentiary rules governing such revocation as follows: "2. (a) Whenever in the course of a criminal action or proceeding a defendant charged with the commission of a felony is at liberty as a result of an order of recognizance or bail issued pursuant to this article it shall be grounds for revoking such order that the court finds reasonable cause to believe the defendant committed one or more specified class A or violent felony offenses while at liberty. Before revoking an order of recognizance or bail pursuant to this subdivision, the court must hold a hearing and shall receive any relevant, admissible evidence not legally privileged. The defendant may cross-examine witnesses and may present relevant, admissible evidence on his own behalf. Such hearing may be consolidated with, and conducted at the same time as, a felony hearing conducted pursuant to article one hundred eighty of this chapter. A transcript of testimony taken before the grand jury upon presentation of the subsequent offense shall be admissible as evidence during the hearing. The district attorney may move to introduce grand jury testimony of a witness in lieu of that witness' appearance at the hearing." (CPL 530.60 [2] [a].)
In the Practice Commentary, Professor, now Judge, Bellacosa analyzed this amendment, writing that it resulted from a legislative compromise "after several years of unsuccessful struggling with various so-called `preventive detention' proposals". (Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 530.60, p 97.)
His analysis continues: "Under the limited circumstances in which [the amendment] is applicable, it may prove to be an effective tool and deterrent while simultaneously eliminating, for the first time, the hypocrisy that piously proclaims that the sole purpose of bail is to ensure presence at subsequent proceedings. Yet, it would do so without necessarily sacrificing that important, fundamental precept" ( id., at p 98).
In setting forth the legislative history and context, the Practice Commentary reinforces the plain language reading of the statutory and constitutional scheme that subdivision (2) (a) is the exclusive basis for any form of preventive detention. The compromise enactment of subdivision (2) (a) limited the statute's application to bailed defendants who, there is reasonable cause to believe, committed a class A or violent felony offense while at liberty — not those who committed any other degree of felony, threatened witnesses, or engaged in any other antisocial, noncriminal conduct. There is no other statute to suggest — nor does it seem logical to conclude — that while the discretionary setting of bail is absolutely limited by the purpose of ensuring a defendant's presence, a judge has any discretion beyond that contained in the 1981 amendment to determine when to revoke bail.
Obviously, the commission of other crimes or subsequent noncriminal activity — such as the purchase of one-way airline tickets to a foreign country — can be considered in a revocation hearing for the sole question of defendant's likelihood of appearing for trial.
Another piece of legislative history compels the same conclusion. In 1981 — the same year the limited preventive detention statute was passed — the Legislature also passed CPL 530.13, which provides that a court may issue, as condition of release on bail, an order of protection in favor of a crime victim who is not a family member. Significantly, subdivision (8) empowers a judge to revoke bail if, after a hearing, the defendant is found guilty of willfully disobeying the court's order of protection. The nearly simultaneous enactment of this statute and the limited preventive detention statute are strong and persuasive evidence that the Legislature did not intend CPL 530.60 (1)'s bail revocation provisions to be used to protect witnesses.
Family members can receive orders of protection under CPL 530.12.
Indeed, it is not always clear that revocation of bail would have the desired effect. The Court of Appeals has held that under certain circumstances, where "witness-tampering is the risk * * * the direct actor * * * would not have to be and would not likely be the one man at whom the finger of guilt would be poised immediately." ( People ex rel. Klein v Krueger, 25 N.Y.2d 497, 502 [1969].)
Revocation following violation of a judicial order of protection is, of course, only a punishment for contempt under a different name. As such, it in no way undermines the conceptual basis of bail for the purpose of ensuring appearance except under the specific circumstances of CPL 530.60 (2) (a). Even then, the commission of a felony with a substantial mandatory sentence could be argued as presumptive evidence of the defendant's unlikelihood of returning for trial on the initial offense for which she/he was bailed.
As there are no binding decisions to the contrary, I hold that the decision whether to revoke bail for "good cause shown" is — like the discretionary decision whether to set bail — subject to the same mandatory goal and criteria set forth in CPL 510.30, i.e., to ensure a defendant's presence at trial. The one and only limited exception is found in the recently enacted preventive detention measure.
I respectfully disagree with my colleague Justice Evans who, in the only reported decision on this issue, held to the contrary in People v Torres ( 112 Misc.2d 145 [Sup Ct, N Y County 1981]). The cases cited by him rely on the CPL's predecessor, the Code of Criminal Procedure, which had no analogue to CPL 510.30, or else simply fail to consider section 510.30's impact.
Accordingly, the People's motion is denied and the bail conditions are continued.