Opinion
229/2019
06-22-2020
The PEOPLE of the State of New York v. Stephon THOMPSON, Defendant.
Honorable Michael E. McMahon, District Attorney, Richmond County, by: Assistant District Attorney Travis Atkinson, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 556-7174, Travis.Atkinson@RCDA.NYC.GOV To: Mario Gallucci, Esq., 1110 South Avenue, Suite 29, Staten Island, New York 10314, (347) 273-1269, MFG7102@aol.com
Honorable Michael E. McMahon, District Attorney, Richmond County, by: Assistant District Attorney Travis Atkinson, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 556-7174, Travis.Atkinson@RCDA.NYC.GOV
To: Mario Gallucci, Esq., 1110 South Avenue, Suite 29, Staten Island, New York 10314, (347) 273-1269, MFG7102@aol.com
Mario F. Mattei, J.
The defendant is charged with several violent felony offenses for acts allegedly committed by him on two separate dates in two separate incidents.
In the first set of charges, the defendant is charged with Attempted Murder in the Second Degree (Penal Law § 110/120.25[1] ), Assault in the First Degree ( Penal Law § 120.10 [1] ), other assault charges, and weapons charges, including Criminal Use of a Firearm in the First Degree ( Penal Law § 265.09 [1][a] ). The charges arose from an incident on April 23, 2019, much of which is captured on video surveillance footage, of the defendant shooting another person. After the defendant was arrested and charged by felony complaint for his alleged involvement in this matter he was released from custody by having an insurance company bond in the amount of $25,000 posted.
The second set of charges accuses the defendant of violent felonies committed on a date in August, 2019, after he was released from custody for the April incident. These charges also include a charge of Attempted Murder in the Second Degree (Penal Law § 110/120.25 [1] ), as well as assault and firearm charges, including Attempted Assault in the First Degree (Penal Law § 110/120.10 [1] ), and Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03 [3] ). This incident was also captured by video surveillance cameras.
The charges from both dates are contained in one indictment. If convicted after trial, the defendant faces determinate sentences which mandate periods of state prison for each violent felony conviction ( Penal Law § 70.02 [3] ). If convicted of more than one violent felony, possible sentences would include both discretionary and mandatory consecutive sentences of state prison.
Penal Law § 70.25 (2)(b) requires consecutive sentences for violent felonies convictions committed while a defendant is on recognizance or bail for a felony charge unless mitigating circumstances which bear directly upon the manner in which the crime was committed are shown.
The defendant's bail is currently set at $250,000 insurance company bond, $200,000 cash, or $200,000 partially secured bond, secured by 10 per cent. A bail source hearing was ordered at the time of the defendant's arraignment. On or about May 28, 2020, an insurance company bond was presented to the court. The $250,000 amount of the insurance company bond was obtained by the payment of a premium of $12, 660 by one individual, and promissory notes with confessions of judgement from 5 separate individuals. The promissory notes are not secured by pledges of any additional real or personal property. On June 2, 2020, the bail source hearing was held. The People conceded that they were satisfied that the money posted to secure the bail bond was from a legitimate source.
The issue before the court is whether or not the amount of collateral used to acquire the bail bond from the bail bond company is so slight that it contravenes the public policy and interest of insuring the defendant's return to court.
"... CPL 520.30 (1) permits a court to determine whether the collateral securing the insurance company bail bond is so deficient that it fails to ensure the defendant's return to court in contravention of public policy ... The court therefore may examine the collateral in accordance with this State's legitimate interest in ensuring that such collateral is adequate to guarantee a defendant's return to court" ( People ex rel Prieston v. Nassau County Sheriff's Dept. , 34 NY3d 177 [2019] [internal citations omitted] ).
Based upon the strength of the evidence, the seriousness of the charges, the significant prison time the defendant faces for conviction on any of the violent felony charges, the lack of any tangible security for the promissory notes, the absence of any collateral which would give a value to the confessions of judgment, and the comparatively minor amount of money posted as the premium for the bond, the court finds that the amount of collateral posted to ensure the defendant's return is virtually non-existent and "invites flight" ( People v. Esquivel , 158 Misc 2d 720 [Sup Ct New York County 1993] ).
The bail bond is disapproved.
The promissory notes secured by confessions of judgement do not provide the defendant with any incentive to appear in court. If the defendant does not appear the bail bond company will be able to start an action on the confessions of judgment to collect its money. But given that the promissors are unable, or unwilling, to put up some tangible collateral or additional cash at the outset, the promissors are most-likely judgment-proof, indicating that these "indemnitors commitments (are) insufficiently meaningful to secure (the defendant's) appearance (Prieston , 183). In short, "the unsecured portion of a partially-secured bond provides little, if any, financial incentive for the defendant to return to court ( People v. Portoreal , 66 Misc 3d 497 [Sup Ct Bronx County 2019] ).
The defendant's argument that the court should accept the determination of the bail bond company that the defendant is likely to come back to court because of the company's experience and ability to assess such things is unpersuasive for two reasons.
First, it is the court's duty and obligation to determine if the collateral is sufficient to ensure the defendant's return to court and is not against public policy. CPL 520.30 (1) provides that following the posting of bail, "the court may conduct an inquiry for the purpose of determining the reliability of the obligors or person posting cash bail, the value and sufficiency of any security offered, and whether any feature of the undertaking contravenes public policy ..." This is not an exclusive list however. "Rather, the Criminal Procedure Law grants the Hearing Justice substantial discretion in this regard, enumerating areas into which inquiry may be made, without limiting the court to those matters" (Matter of Johnson v. Crane, 171 AD2d 537 [1st Dept 1991] ). This duty cannot be delegated to another entity, let alone an entity or person with a financial interest in the decision. "The interests of the bail bond company and the interests of the State do not necessarily coincide. The court and the surety share the ultimate objective of ensuring the defendant's return to court for trial. However, they are motivated by separate and distinct concerns. The surety is a business enterprise. Its primary concern is to be indemnified if the bail is forfeited. It is under no obligation to ensure that the bail arrangement is consistent with the public policy of the State. The court's primary concern is to ensure that the policy and laws of the State are upheld" ( People v. Torres , 51 Misc 3d 1203(A) [Sullivan County Ct 2016] ; Prieston , 182).The bail bond company's self-interest in having a court approve the bail bond is self-evident, since "when a court holds a bail source hearing under CPL 520.30, the surety may retain a premium only when the principal is released on bail" ( Gevorkyan v. Judelson , 29 NY3d 452 [2017] ). "The insurance company's business judgment does not control that public policy determination, and no deference is required in this regard" (Prieston , 181). If the court was permitted to delegate this duty, bail, and considerations involving bail, would cease to be a judicial determination. That is not in accord with the law which requires the court, and only the court, to make determinations with regard to bail.
Criminal Procedure Law 510.10.
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The second reason the court cannot credit the bail bond company's experience in its choice of the amount of premium or collateral to accept is because that would implicitly involve the court questioning the business judgment of the company. To either credit or discredit the company for taking a sufficient or insufficient collateral involves determining whether or not the company made a prudent or otherwise foolish decision. So, even a decision by the court that the business judgment of the bail bond company is sound involves resolving a question of whether or not the business judgement of the bail bond company is sound. But that question, even with a decision in favor of the company, is not within the court's purview, and is not what this court is engaging in. This court has no opinion on, or interest in, the business judgment of the bail bond company ( People ex rel. Gerard C. Savage v. Horn , 56 AD3d 806 [2d Dept 2008] ).
CONCLUSION
The Court finds that the limited collateral pledged fails to adequately ensure the defendant's return to court, and the acceptance of the bond as presently secured would contravene public policy; accordingly, it is hereby
ORDERED, that the bail bond is disapproved and not accepted.
This shall constitute the decision and order of the court.