Opinion
22745
December 11, 2002.
John A.J. Hinspeter, petitioner pro se.
Eliot Spitzer, Attorney General, and Jeanine Pirro Ferris, District Attorney, for respondent.
"Although there is no absolute federal constitutional right to bail pending appeal, once a state makes provisions for such bail, the Eighth and Fourteenth Amendments require that it not be denied arbitrarily or unreasonably" (Pulaski v. Hopkins, 745 F. Supp. 882,885 [E.D.N.Y. 1990][footnote omitted]). In this case of first impression, the Court is asked to declare C.P.L. § 530.50 (hereinafter "Section 530.50") unconstitutional on the grounds that it violates petitioner's rights to due process of law and equal protection of the law under both the Federal and State Constitutions because it deprives him of the right to bail or release on his own recognizance pending appeal from his conviction of several sexual offenses committed against a child. This Court acknowledges that the Legislature could have crafted a statute that provides more uniform protection of the public from convicted sexual predators. Specifically, it would seem rational and justified to afford the same protection to the public with respect to all persons convicted of committing a sexual offense against any person regardless of their age. Under the controlling standards for review of legislative enactments, however, it is clear that the bail statute at issue is constitutional.
As amended in 2000 as part of the Sexual Assault Reform Act (SARA), and effective February 1, 2001, Section 530.50 provides that:
A judge who is otherwise authorized pursuant to section 460.50 or section 460.60 to issue an order of recognizance or bail pending the determination of an appeal, may do so unless the defendant received a class A felony sentence or a sentence for a felony, other than a class D or class E felony, defined in article one hundred thirty of the penal law and committed or attempted to be committed against a person less than eighteen years of age.
Prior to that amendment, it provided that: "A judge who is otherwise authorized pursuant to section 460.50 or section 460.60 to issue an order of recognizance or bail pending the determination of an appeal, may do so unless the defendant received a class A felony sentence."
I. RELEVANT FACTUAL BACKGROUND
From the time of his arrest on sexual assault charges involving a child-victim, through the conclusion of his trial, petitioner was free on bail and appeared in court as required. He was immediately remanded, without bail, upon the jury's return of guilty verdicts on 14 of the 36 counts of the indictment, including those charging him with Rape in the First and Second Degrees, Sodomy in the First and Second Degrees, Aggravated Sexual Abuse in the First and Third Degrees, and Sexual Abuse in the First and Second Degrees. At petitioner's sentencing on September 14, 2001, the trial court imposed a term of incarceration in New York State prison aggregating more than 50 years.
Upon his arrest, bail was set at $10,000. That bail was increased to $20,000 upon petitioner's arraignment on the indictment.
Thereafter, petitioner moved pro se for release on his own recognizance or on bail pending the appeal from his conviction. By decision and order entered on March 1, 2002, this Court denied that motion in its entirety, upon its determination that Section 530.50 constitutes an absolute bar to release pending appeal from a conviction where, as here, the defendant received a sentence for committing a class B or C felony defined in Penal Law Article 130 (hereinafter "an Article 130 crime") against a victim under the age of eighteen years (People v. Hinspeter, 190 Misc.2d 614 [Sup. Ct. Westchester Co. 2002]). In that decision, the Court noted that petitioner did not raise a constitutional challenge to Section 530.50 on his prior motion, while observing that in view of the analysis applied to an attack upon the original version of that section in Matter of Gold v. Shapiro ( 62 A.D.2d 62 [2d Dept. 1978], affd. 45 N.Y.2d 849) with respect to class A-III drug crimes, "a constitutional challenge to the present statute would be of doubtful merit" (People v. Hinspeter, supra, 190 Misc.2d, at 620, n. 8).
Since that time defendant has been assigned counsel to represent him in that appeal.
Having been denied release upon his earlier application, petitioner then commenced this habeas corpus proceeding in which he challenges the constitutionality of Section 530.50. Upon review of his initial papers, from which it was apparent that no issue of fact was involved which would require a hearing, this Court issued an order to show cause in lieu of a writ of habeas corpus, and required respondent to show cause why petitioner should not be released on his own recognizance or on bail pending his appeal. With all papers now submitted, the parties have been given a full opportunity to address the issues raised by petitioner.
As required, the proceeding is brought against the person detaining petitioner, i.e., the Superintendent of the prison facility where petitioner is incarcerated. Although the undersigned Justice was not involved in the underlying criminal prosecution, petitioner has opted to bring this application before him, pursuant to CPLR § 7002(b)(3), which permits a habeas corpus petition to be made to "any justice of the supreme court".
CPLR § 7003(a) provides, in relevant part, that "[t]he court to whom the petition is made shall issue the writ without delay on any day, or, where . . . it is clear that there is no disputable issue of fact, order the respondent to show cause why the person detained should not be released."
Although respondent is a State employee who would ordinarily be represented by the New York State Attorney General, as required by law the Westchester County District Attorney has been served with notice of this application (CPLR § 7009[a][3]), and she appears for respondent pursuant to an agreement with the Attorney General, as expressed in a letter submitted by the Attorney General (Angelico Letter, September 13, 2002). Notwithstanding that agreement, in his letter the Attorney General acknowledges that he "has carefully reviewed [the District Attorney's] affirmation and memorandum, agrees with the statements contained therein, and hereby adopts said papers as respondent's answer to the petition" (ibid.). The Attorney General restated that position in a letter dated October 25, 2002 in which he adopted the supplemental papers submitted by the Westchester County District Attorney pursuant to a further order of this Court.
The following papers numbered 1 to 13 were read in this proceeding:
PAPERS NUMBERED
Petition/Affidavit/Memorandum of Law (Petitioner)1-3
Supplemental Affidavit/Order to Show Cause (Petitioner)4-5
Affirmation/Memorandum of Law in Opposition (District Attorney)6-7
Letter Opposition (Attorney General)8
Reply Affidavit (Petitioner)9
Supplemental Affirmation in Opposition (District Attorney)10
Supplemental Letter Opposition (Attorney General)11
Supplemental Affidavit in Support (Petitioner)12
Second Supplemental Affidavit in Support (Petitioner) 13
II. DISCUSSION
In this proceeding, petitioner offers several grounds in support of his attack upon Section 530.50. The first two of these are, as noted, constitutional challenges based upon his Federal and State rights to due process of law and equal protection of the law. In addition, he asserts that Section 530.50 violates the Eighth Amendment to the Federal Constitution. Finally, he argues that he is entitled to release on bail or on his own recognizance under the Federal Bail Reform Act. Then, relying upon his conclusion that Section 530.50 is unenforceable, he argues that this Court must set release conditions pending the appeal from his conviction. These arguments, none of which are persuasive, are addressed in the order deemed most logical.
In addition to opposing the application on its merits, respondent offers two grounds supporting dismissal of the writ. Contrary to his view that petitioner has not been denied a fundamental constitutional or statutory right and cannot seek review of his constitutional claim in this proceeding, petitioner may be heard on his challenge to Section 530.50 because his attack is premised upon an alleged "invasion" of his constitutional rights to due process of law and equal protection of the law (see, People ex rel. Klein v. Krueger, 25 N.Y.2d 497,500 [1969]). Similarly, while respondent correctly notes that habeas corpus review of a bail decision is limited to determining whether the bail denial was an abuse of discretion or a violation of the constitutional bar against excessive bail or its arbitrary refusal, in this case this Court's earlier decision denying bail was not a discretionary one, but was based solely upon the effect of Section 530.50 upon a post-conviction bail application. Thus, review of the constitutional issue in this proceeding is available because petitioner's challenge is one constituting a claim that the bail denial was made "for reasons insufficient in law" (see,People v. Mohammed, 171 Misc.2d 130,139 [Sup. Ct. Kings Co. 1996]).
A. EXCESSIVE BAIL CHALLENGE
The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (emphasis supplied). This provision is binding upon the States through the Fourteenth Amendment of the Federal Constitution (see, Schilb v. Kuebel, 404 U.S. 357,365 [1971], rehearing denied 405 U.S. 948 ["[T]he Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment"]; see also, United States ex rel. Goodman v. Kehl, 456 F.2d 863,868 [2d Cir. 1972]). Petitioner contends that by denying bail to those defendants convicted of class B and C felonies defined in Penal Law Article 130 where the victim is less than 18 years old, Section 530.50 violates his Eighth Amendment rights.
Contrary to petitioner's view, "[i]t is clear that there is no absolute federal constitutional right to bail pending appeal after a conviction in the state courts" (Brown v. Wilmot, 572 F.2d 404,405 [2d Cir. 1978];Matter of Gold v. Shapiro, supra, 62 A.D.2d, at 65 ["[T]here is no constitutional right to bail after conviction"]). Thus, his claimed violation of his Eighth Amendment rights is meritless. If he has any argument concerning his entitlement to post-conviction bail, it must be founded upon some other constitutional deprivation, as discussed below.
B. FEDERAL BAIL REFORM ACT
Petitioner further asserts that under the Federal Bail Reform Act ( 18 U.S.C. § 3143) he should be released on bail or on his own recognizance because "Congress intended that a defendant should be released on bail pending appeal where the risk of flight or danger to the community are not significant factors and where the defendants [sic] appeal presents a substantial question of fact or law likely to result in an appellate reversal and a finding for the defendant"(Pet. Affid. in Support, p. 4), a standard he claims to satisfy in this case. Although petitioner correctly states the applicable standard under this act (the Bail Reform Act), his reliance upon it is misplaced.
The Bail Reform Act provides, in relevant part, that:
. . . the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, . . . be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released. . . .( 18 U.S.C. § 3143[a][1] [emphasis supplied])
As used in that section, however, "the term 'offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress" ( 18 U.S.C. § 3156[a][2][emphasis supplied]). As is obvious from this definition, the Bail Reform Act has no application to state court proceedings but applies instead only to Federal prosecutions (see, United States v. Chilingirian, 280 F.3d 704,709 [6th Cir. 2002][Bail Reform Act "requires a district court to make two findings before granting bail pending appeal"] [emphasis supplied]). For that reason, petitioner may not rely upon the Bail Reform Act to support his application for release pending his appeal.
C. FOURTEENTH AMENDMENT CHALLENGES
Because, as noted, there is no constitutional right to bail following conviction (Matter of Gold v. Shapiro, supra, 62 A.D.2d, at 65), "[a] state may, if it chooses, decline to provide a system for post-conviction bail" (Griffith v. State, 641 P.2d 228,231 [Alaska App. 1982]). However, "where the state has set up a classification of bailable and non-bailable offenses, the classification must not violate the right to due process and equal protection guaranteed by the Fourteenth Amendment" (Powers v. Schwartz, 448 F. Supp. 54,56 [S.D. Fla. 1978], vacated as moot 587 F.2d 783 [5th Cir. 1979]). That limitation notwithstanding, Section 530.50 is, "like all other legislative enactments[,] supported by a presumption of validity so strong as to demand of those who attack [it] a demonstration of invalidity beyond a reasonable doubt" (see, Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40). It is against that standard that petitioner's next two challenges must be evaluated.
1. EQUAL PROTECTION
Petitioner's central attack upon Section 530.50 is founded upon his Federal and State rights to equal protection of the law. In sum, it is his position that Section 530.50 is unconstitutional because the Legislature's determination that a person convicted of a class B or C felony sexual assault against a young victim should not be permitted to be released pending an appeal from his conviction "is not rationally related to a legitimate [state] interest" (Petitioner's Supp. Affid., Aug. 1, 2002, p. 1).
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws". Similarly, New York's Constitution commands that "[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof" (McKinney's Const. Art. 1, § 11). Although petitioner grounds his equal protection challenge upon both the Federal and State provisions, by doing so he gains no benefit because the State provision is no broader in scope and offers no greater protections than its Federal counterpart (Matter of Esler v. Walters, 56 N.Y.2d 306,313-314 [1982]; Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512,530 [1949], cert. denied 339 U.S. 981 [Equal protection challenge "is precisely the same under the State Constitution as it is under the Federal Constitution"]).
The first step in resolving an equal protection challenge is to determine the level of scrutiny that must be applied (United States ex rel. Nistler v. Chrans, 720 F. Supp. 115,119 [N.D. Ill. 1989]). This nation's highest court has made it "clear that, unless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest" (Nordlinger v. Hahn, 505 U.S. 1,10 [1992]; see also, Henry v. Milonas, 91 N.Y.2d 264, 267-268 ["For equal protection purposes, classifications that do not target a suspect class or infringe upon a fundamental right must be upheld if the classification is rationally related to a legitimate State interest"]). Since the right to post-conviction bail is not one which is "fundamental" or involves a "suspect classification", if a statute such as Section 530.50, which limits the availability of post-conviction bail, is rationally related to a legitimate state interest, it will survive an equal protection attack (see, United States v. Moore, 607 F. Supp. 489,494-495 [N.D. Cal. 1985] [because court found no constitutional right to bail, equal protection challenge to Bail Reform Act was evaluated under rational relation test]; see also, Griffith v. State, supra, 641 P.2d, at 231 [Applying rational relation standard to attack upon State bail statute]; State v. Handa, 657 P.2d 464,467 [Hawaii 1983] [Same]).
Petitioner concedes that this is the governing standard, as evidenced by his claim, set forth above, that the statutory classification at issue "is not rationally related to a legitimate interest" (Petitioner's Supp. Affid., Aug. 1, 2002, p. 1).
The rational relation standard of review "is a paradigm of judicial restraint" (Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307,314 [1993]). Consequently, under that standard, there is no requirement "that a legislature . . . actually articulate at any time the purpose or rationale supporting its classification" (Nordlinger v. Hahn, supra, 505 U.S., at 15).
To the contrary, an equal protection challenge fails "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification" (Federal Communications Commission v. Beach Communications, Inc., supra, 508 U.S., at 313 [emphasis supplied]). Because a statute is presumed to be constitutional, "[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it" (Madden v. Kentucky, 309 U.S. 83,88 [1940][emphasis supplied]; Heller v. Doe, 509 U.S. 312,320 [1993]; Affronti v. Crosson, 95 N.Y.2d 713,719 [2001], cert. denied 534 U.S. 826, 122 S.Ct. 66).
Notwithstanding that the burden is upon petitioner to establish the unconstitutionality of Section 530.50, respondent offers two bases which support its classification of crimes for which post-conviction release on bail or recognizance is not permitted. First, he asserts that offenders who commit crimes against victims under the age of eighteen, of the type defined in Penal Law Article 130 as class B and C felonies, have a high risk of recidivism, such that SARA's goal of protecting children against sexual predators will be advanced by denying them the opportunity for release pending appeal from conviction for any such crime. Second, respondent maintains that "'denial of bail pending appeal necessarily effectuates the swift imposition of sentence, which the Legislature rationally could have believed would enhance the deterrent effect of punishment'" (Resp. Mem., p. 9, quoting State v. Handa, supra, 657 P.2d, at 467).
For his part, petitioner does not contend that these two goals are unreasonable. Rather, his attack upon Section 530.50 is that the Legislature has acted arbitrarily by "singl[ing] out for special treatment" defendants convicted of committing Article 130 B and C felonies against infant-victims and failing to apply it to convictions for "other felonies against children which are not B or C felonies" (Pet. Affid. in Support, p. 10). Such a claim is classified as one of "underinclusion" (see, Griffith v. State, supra, 641 P.2d, at 232). In addition, specifically with respect to the first goal identified by respondent, petitioner maintains that it finds no support in the legislative history of Section 530.50.
Turning first to the second of the purported legislative goals, the Court cannot agree that it provides support for a finding of constitutionality in the face of an equal protection challenge. Certainly, by requiring the immediate incarceration of a defendant upon his conviction, the State is ensured that the defendant is "swiftly" punished. Moreover, such immediate punishment furthers the goal of specific deterrence, by removing the defendant from society, and thereby assuring that he cannot commit any other crime until his ultimate release. Nevertheless, the same concerns apply to all persons convicted of crimes, whether those crimes involve acts of violence or not. For example, a person convicted of Attempted Murder in the Second Degree, a class B violent felony, who shoots another person at point blank range but fails to kill him, could equally well be said to be deserving of immediate punishment to further the end of deterrence. The same may be said of a defendant convicted of raping an eighteen-year-old victim, also a class B violent felony. Yet under Section 530.50, both hypothetical defendants are eligible for bail pending appeal. Petitioner seizes upon this "underinclusion" to argue that, as amended by SARA, Section 530.50 lacks any rational relation to any legitimate state interest.
As petitioner correctly asserts, the essence of equal protection is that "all persons similarly circumstanced shall be treated alike" (F. S. Royster Guano Co. v. Virginia, 253 U.S. 412,415 [1920]). That does not mean, however, that "things which are different in fact or opinion [must] be treated in law as though they were the same" (Tigner v. Texas, 310 U.S. 141, 147, rehearing denied 310 U.S. 659). Thus, under our system of government, "[t]he initial discretion to determine what is 'different' and what is 'the same' resides in the legislatures of the States", which are granted "substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill" (Plyler v. Doe, 457 U.S. 202,216 [1982]). Where the "rational relation" standard governs, a distinction drawn by the Legislature will survive equal protection attack, so long as "the classification at issue bears some fair relationship to a legitimate public purpose" (ibid.), notwithstanding that "it is not made with mathematical nicety or because in practice it results in some inequality" (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,78 [1911]).
Although respondent cites State v. Handa (supra, 657 P.2d 464) as support for his position, the bail provision reviewed in that case is clearly distinguishable from Section 530.50. In Handa, the statute denied bail pending appeal to any person convicted of a felony for which a prison term was imposed. Thus, unlike Section 530.50, the Hawaii statute accomplished its goal of ensuring swift punishment and deterrence of theentirety of the class of individuals whose convictions resulted in the imposition of a specific sentence. Given that distinguishing factor, the court in Handa understandingly reached the conclusion that "by denying bail to the class of convicted felons sentenced to imprisonment", the statute accomplished its "expressed purposes of (1) protecting the community from the dangers posed by convicted felons and (2) enhancing the deterrent effect of punishment" (id., at 467).
Rather than being comparable to the statute found constitutional inHanda, Section 530.50 is more akin to that held invalid in Griffith v. State (supra, 641 P.2d 228). Therein, the court addressed a statute which provided, in relevant part, that "if the offense a person has been convicted of is murder in the first degree, robbery in the first degree, kidnapping, or sexual assault in the first degree . . ., he may not be released on bail . . . pending appeal" (Alaska Statutes § 12.30.040[b]). In opposition to an equal protection attack, the State of Alaska "cite[d] a pair of legislative criteria in support of the Alaska provision: (1) assurance of continued appearances and amenability to the further orders of the court, and (2) protection of the community" (Griffith v. State, supra, 641 P.2d, at 232). In rejecting the community protection basis for the statute as "not convincing", the Griffith court observed that "some of these other offenses for which bail is an option have been categorized by the legislature to be as serious as or more serious than some of the offenses within AS 12.30.040(b)" (id., at 232-233). Because it "conclude[d] that [the] legislative scheme [made] bail optional for some dangerous convicts, but without apparent explanation denie[d] it to others similarly situated", the court held that the statute violated the Federal Equal Protection Clause.
Even applying the liberal "rational relation" test, Section 530.50 cannot withstand petitioner's challenge upon the ground that it advances the goal of deterrence by ensuring swift punishment of sexual predators, since no rational basis exists for barring release on bail or recognizance pending appeal only to defendants convicted of class B and C Article 130 felonies committed against infant-victims, while permitting release of defendants convicted of other equally serious B and C felonies involving violence, such as Attempted Murder in the Second Degree (P.L. §§ 110,125.25), Rape in the First Degree (P.L. § 130.35) against a victim 18 years old or older, Robbery in the First Degree (P.L. § 160.15), Kidnapping in the Second Degree (P.L. § 135.20) and Arson in the Second Degree (P.L. § 150.15), to name but a few. Consequently, if this goal was the only one served by the statute, the Court would agree with petitioner that Section 530.50 is constitutionally infirm (see, Griffith v. State (supra, 641 P.2d, at 233).
These crimes parallel those excluded under the Alaska statute reviewed in Griffith, such as "Second degree murder[,] an unclassified offense for which life imprisonment is a potential sentence [in Alaska][,] [and] [m]anslaughter, assault in the first degree, and arson in the first degree, . . . all [of which are] class A felonies" in that state (Griffith v. State, supra, 641 P.2d, at 233).
Here, however, there is an additional consideration that supports the statute. That is the concern with recidivism among convicted pedophiles and the need for protection of children, who constitute a special class of victims.
As demonstrated by legislative materials proffered by respondent, studies have shown, inter alia, that "[r]eleased rapists were found to be 10.5 times as likely as nonrapists to be re-arrested for rape, and those who had served time for sexual assault were 7.5 times as likely as those convicted of other crimes to be re-arrested for a new sexual assault" (Lamont Supp. Affirm. in Opp., Exh. E, p. 38, Sex Offenses and Offenders, An Analysis of Data on Rape and Sexual Assault, U.S. Dept of Justice, Office of Justice Programs, p. 27). This data, combined with that demonstrating the high incidence of child-victims among victims of serious sexual crimes in general, supports a Legislative view that young victims, in particular, need protection from sexual predators, such that individuals convicted of violent sexual crimes involving victims under the age of 18 should not be eligible for release pending appeal.
This material was provided pursuant to this Court's order directing the parties to submit supplemental papers addressing the issue of what factors, if any, the Legislature considered in enacting Section 530.50.
For example, the Justice Department analysis indicates that "violent sex offenders with single victims reported that two-thirds of their victims had been under the age of 18[,] offenders of sexual assault reported 8 out of 10 victims had been under the age of 18[,] (44.7% were 12 years or younger)" and "[m]ore than 25% of sexual assault murder victims were under 18, compared to 15% of all murder victims" (Lamont Supp. Affirm. in Opp., p. 5, citing Exh. E, pp. 35,40, Sex Offenses and Offenders, An Analysis of Data on Rape and Sexual Assault, U.S. Dept of Justice, Office of Justice Programs, pp. 24,29).
Seeking to undermine the recidivism basis for Section 530.50, petitioner cites a study indicating that the recidivism rate for sexual offenders "is less than half the rate reported for other major crime" (Pet. Affid. in Support, p. 11). Petitioner's data, even if accurate, does not warrant rejection of the Legislature's recidivism concern as sufficient support for the amendment of Section 530.50 which is attacked in this proceeding. To the extent that this data is offered to prove that the Legislature erred in concluding that recidivism among sexual predators was a substantial cause for concern, petitioner's proof falls short of its mark. It is settled law that "[a]lthough parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, . . . they cannot prevail so long as 'it is evident from all the considerations presented to [the legislature], and those of which [the court] may take judicial notice, that the question is at least debatable'" (Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, rehearing denied 450 U.S. 1027, quoting United States v. Carolene Products Co., 304 U.S. 144, 154 [internal citation and footnote omitted]; Affronti v. Crosson, supra, 95 N.Y.2d, at 718-719). In this matter it is evident that based upon the data included in the legislative history, the question of whether the recidivism rate for individuals convicted of violent sexual offenses against young victims is so substantial that denial of release of such individuals pending appeal is justified "is at least [a] debatable [question]" (see, Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S., at 464). Consequently, because "there was evidence before the legislature reasonably supporting the classification [under Section 530.50], [petitioner] may not procure invalidation of th[at] [statute] merely by tendering evidence in court that the legislature was mistaken"(see, ibid.).
Petitioner provides the following citation in support of this claim: "Societal Myths About Sex Offending and Consequences for Prevention of Offending Behavior Against Children and Women,, by James Krivacska, Issues In Child Abuse Accusations, Vol. 11:1, 2001" (Pet. Affid. in Support, p. 11). Although petitioner has not provided a copy of the study, because neither the cited article nor the data quoted by petitioner are challenged by respondent, the Court accepts the citation and data as valid for the purposes of this proceeding.
To the extent that petitioner offers his contradictory recidivism data in support of his underinclusion claim in general, it is also insufficient for that purpose. Certainly, the Legislature could have drafted a post-conviction bail statute that was more even-handed in application by, for example, denying bail to all individuals convicted of violent felonies or all those sentenced to more than a certain minimum state prison sentence (cf., Browning v. State, 254 Ga. 478, 330 S.E.2d 879 [Ga. 1985][No equal protection violation where statute denied post-conviction bail to defendants "convicted of murder, rape, armed robbery, kidnapping, or aircraft hijacking and who ha[ve] been sentenced to serve a period of incarceration of seven years or more"]). That it chose instead to limit Section 530.50 to a smaller class of convicted felons does not necessarily render the statute unconstitutional.
It is settled law that "[i]n the area of . . . social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect" (Dandridge v. Williams, 397 U.S. 471, 485, rehearing denied 398 U.S. 914). This principle evolves from judicial recognition that "[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations" (see, Metropolis Theater Co. v. City of Chicago, 228 U.S. 61,69 [1913]). Thus, the Equal Protection Clause is "is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective" (McGowan v. Maryland, 366 U.S. 420,425 [1961][emphasis supplied]). Put another way, under the rational relation standard, "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it" (id., at 426).
In amending Section 530.50 to deny post-conviction release to those defendants convicted of Article 130 crimes against victims less than 18 years of age, the Legislature was acting out of concern for a specific class of victims, i.e., children, who, because of their ages, lack the emotional and physical maturity to adequately protect themselves from sexual predators. Because there is evidence that those who prey upon children are likely to repeat that conduct even after having been convicted of such crimes in the past, the Legislature could rightly have concluded that denying release pending appeal from conviction of an Article 130 crime involving a victim less than eighteen years old was one meaningful way in which to extend some protection to those most likely to be victimized again by such defendants. Since the potential for recidivist behavior by that class of defendants is not "wholly irrelevant" to the Legislature's goal of protecting young children from becoming victims of these sexual predators (see, McGowan v. Maryland,supra, 366 U.S., at 425), who "constitute an insular class who pose a peculiar threat to society and thus require especially severe [limitations upon their freedom pending appeal from their convictions]", the legislative decision to deny them post-conviction release does not violate their equal protection rights (see, Matter of Gold v. Shapiro,supra, 62 A.D.2d, at 67 [Application of former version of Section 530.50 to Class A-III drug felonies is not equal protection violation]).
As set forth in petitioner's supplemental papers, it appears that as a further challenge to respondent's position, petitioner contends that there is no evidence in the legislative history that prior to enacting the amendment to Section 530.50 under SARA, the Legislature ever considered the factor of protecting children from becoming the victims of convicted sexual abusers awaiting appellate review of their criminal convictions. Assuming, arguendo, that this was true, this fact is without effect upon the Court's determination.
As an initial matter, the record, as presented by respondent, does include references to the release of convicted sexual offenders, and the impact of such releases upon the public in general and children in particular. These include memoranda in support of SARA and an earlier bill which would have similarly limited the opportunity for convicted sexual offenders to be released after conviction (Lamont Supp. Affirm., Exh.C).
This 1997 bill was sponsored by State Senator May Lou Rath, who described it as one which would "help ensure that persons convicted of felony sex offenses do not have the chance to repeat their crimes before incarceration", thereby "provid[ing] protection to our children by keeping these predators in jail between conviction and sentencing" (Lamont Supp. Affirm., Exh.C). By way of example, Senator Rath cited a reported case from Genesee County in which "a 27 year old man . . . plead guilty to first degree sexual assault involving the abduction of a 10 year old girl [and] [w]hile awaiting sentencing, the man was arrested again and charged with first degree sexual abuse for acts committed on a 6 year old girl" (ibid.).
More importantly, even if there was no evidence in the legislative history to support the Legislature's consideration of the recidivism factor, that fact would be of no moment because a State defending against an equal protection attack "has no obligation to produce evidence to sustain the rationality of a statutory classification" (Heller v. Doe,supra, 509 U.S., at 320; see, People v. Lagana, 2002 WL 1012914 (App. Term 2d Dept. 2002]["[T]he People were not obligated to provide the legislative history for the subject ordinance to demonstrate that the Town . . . considered alternatives to the classification contained in the ordinance"]). Thus, while petitioner may seek to raise a factual issue as to the sufficiency of the support for a legislative determination to bar those in his position from obtaining post-conviction release, that choice by our Legislature "is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data" (see, Federal Communications Commission v. Beach Communications, Inc.,supra, 508 U.S., at 315; see also, Port Jefferson Health Care Facility v. Wing, 94 N.Y.2d 284,291 [1999], cert. denied 530 U.S. 1276).
Indeed, because of the presumption of constitutionality afforded to all statutes, in reviewing the Legislature's purpose in enacting Section 530.50, this Court "may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack" (Maresca v. Cuomo, 64 N.Y.2d 242,251 [1984],appeal dismissed 474 U.S. 802[emphasis supplied]), because "it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature" (Federal Communications Commission v. Beach Communications, Inc., supra, 508 U.S., at 315). Consequently, even if not argued by respondent, this Court would be authorized to determine for itself, and would conclude, that the legislative goal underlying the SARA amendment of Section 530.50 was to protect children from becoming future victims of violent sexual offenders awaiting appellate review of their convictions (see,ibid.).
The Legislature's concern for protecting children from recidivist sexual predators is evidenced by its enactment of the Sex Offender Registration Act (SORA), enacted prior to SARA. As observed by the court in Doe v. Pataki ( 120 F.3d 1263,1276 [2d Cir. 1997], cert. denied 522 U.S. 1122 [1998]), SORA's preamble sets forth the following as part of its statement of the findings and intent of the Legislature in enacting that bill:
The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. (Emphasis supplied).
As noted, since he is the party attacking the "legislative arrangement" of Section 530.50 on equal protection grounds, petitioner bears the burden "to negative every conceivable basis which might support it" (see, Madden v. Kentucky, supra, 309 U.S., at 88; see also, Vance v. Bradley, 440 U.S. 93,97 [1979][Party asserting equal protection challenge under rational relation standard bears burden of showing that "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the legislature's actions were irrational"]). In this proceeding, petitioner has not sustained that burden. Consequently, his equal protection attack fails.
2. DUE PROCESS OF LAW
Both the Fourteenth Amendment of the United States Constitution and Article 1, § 6 of the New York State Constitution guarantee that no person shall be deprived of life, liberty or property without due process of law. Without elaboration, petitioner alleges that his due process rights under both constitutions, which are equivalent (People v. Gazulis, 29 Misc.2d 939, 943 [Poughkeepsie City Ct. 1961]), are violated by Section 530.50.
In the context involved at bar, it is settled law that "the Due Process Clause of the Fourteenth Amendment does not impose procedures on a state's decision whether to grant bail to a criminal convict pending appeal" but "does require the state . . . to act consistently once it decides to grant bail to some of these persons" (United States ex rel. Nistler v. Chrans, supra, 720 F. Supp., at 118). Thus, an "arbitrary denial" of a right to bail pending appeal created by a State legislature is a denial of due process (see, United States ex rel. Cameron v. New York, 383 F. Supp. 182,184 [E.D.N.Y. 1974]).
In proffering his due process attack, petitioner contends that he has been denied his right to post-conviction release. "The State, however, must first have granted a right to bail before a criminal defendant may claim the right has been denied in violation of due process" (State v. Handa, supra, 657 P.2d, at 468). Petitioner in this case has been convicted of certain crimes for which the Legislature has determined that release on bail or recognizance pending appeal is unwarranted. "Since [he] has no right to bail [pending appeal], he is precluded from arguing an arbitrary deprivation of the right" (see,ibid.).
Assuming, arguendo, that he may be heard on a due process challenge to Section 530.50, petitioner must show that there is "no rational basis" for the denial of post-conviction release to a defendant convicted of committing an Article 130 crime against a victim less than eighteen years old (see, United States ex rel. Nistler v. Chrans, supra, 720 F. Supp., at 118). This he has not done. It cannot be credibly denied that protecting young victims from violent sexual assaults is a legitimate legislative goal which provides a rational basis for the amendment of Section 530.50 under SARA (see, Schall v. Martin, 467 U.S. 253,264 [1984] ["The 'legitimate and compelling state interest' in protecting the community from crime cannot be doubted"]; see also, United States ex rel. Nistler v. Chrans, supra, 720 F. Supp., at 118 ["Denying bond to persons appealing conviction of a violent felony is rational, even when there is no evidence of chronic violent behavior"]).
III. CONCLUSION
In ruling upon petitioner's challenge to Section 530.50, this Court "must be guided by the familiar principle that 'it is only as a last resort' that courts strike down legislative enactments on the ground of unconstitutionality" (Wiggins v. Town of Somers, 4 N.Y.2d 215,219 [1958], quoting Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545,555 [1952], affd. 344 U.S. 367). Although petitioner complains that the Legislature has unconstitutionally deprived him of the opportunity for release pending his appeal, he has failed to meet the proof burden imposed upon a party attacking the constitutionality of a statute. For that reason, his petition for habeas corpus relief must be dismissed, and this Court's earlier decision that Section 530.50 bars it from considering the merits of petitioner's application for release on his own recognizance or on bail pending his appeal continues to control in this matter (see, People v. Hinspeter,supra).
During the period for the parties' submissions, petitioner filed two motions to preclude respondent from being heard in opposition to the petition based upon allegations that the District Attorney failed to serve and file her opposition papers pursuant to the schedule established by the Court in its orders. In view of the fact that the Court amended one of its orders to extend the time for opposition papers and that petitioner had the opportunity to present his position in full, both motions are denied in all respects.
WHEREFORE, it is ADJUDGED AND ORDERED that the petition is dismissed.