Opinion
84-2020
02-04-2021
The PEOPLE of the State of New York v. James DISIMILE, Defendant.
Joel Proyect, Thompsonville, for defendant. Meagan Galligan, District Attorney, Monticello (Lisa Bondarenka of counsel), for plaintiff.
Joel Proyect, Thompsonville, for defendant.
Meagan Galligan, District Attorney, Monticello (Lisa Bondarenka of counsel), for plaintiff.
James R. Farrell, J. This matter comes before the Court pursuant to defendant James Disimile's request seeking an Order for release on recognizance. The People appear and oppose the relief requested in an affirmation by Assistant District Attorney Lisa Bondarenka, dated December 14, 2020.
On December 1, 2020, defendant was arraigned on two counts of Criminal Possession of a Controlled Substance in the 3rd Degree, class B felonies, as set forth in Indictment 84-2020, and remanded without bail. The indictment alleges that the defendant possessed a quantity of cocaine with the intent to sell it and a quantity of fentanyl with the intent to sell it. Defendant, through counsel, argued that he must be mandatorily released pursuant to the new bail reform law as none of the charges contained in the Indictment were qualifying offenses as set forth in New York law. The People argued that these charges in the Indictment were qualifying offenses as they involve harm to another person and defendant is pending sentencing for the same crime, involving harm, in Orange County, to wit: possession of a quantity of narcotic drug with the intent to sell it.
Defendant was represented, at the time, by Edward Bruno, Esq. and now is represented by Joel Proyect. Esq. given a conflict that arose with Mr. Bruno's continued representation on behalf of Sullivan Legal Aid Panel. Inc.
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The Court held a conference on December 15, 2020, in this matter, after defendant had been assigned new counsel and provided new counsel with additional time to submit any further arguments to the Court on the issue of bail. Submissions were due on December 21, 2020. The Court received no further submissions from either party. The matter in now fully submitted.
Initially, the Court must find as a condition precedent that the charges, as set forth in the Indictment, are qualifying offenses in order to have the authority to set monetary bail under New York's bail reform act. The Court finds that the charges, as set forth in the Indictment, are indeed qualifying offenses pursuant to CPL § 510.10(4)(t). The possession of narcotics, including both cocaine and fentanyl, with the intent to sell them to another person, meet the definition of a felony crime "involving harm" to an identifiable person, to wit: the person to whom the defendant was intending to sell the dangerous narcotics. Accord, People v. Brown, 69 Misc. 3d 229, 129 N.Y.S.3d 298 [Orange County Court 2020]. Indeed, the New York Court of Appeals, prior to the current opiate overdose epidemic, but during the heroin crisis of the 1970s, has found that "[s]ocial harm in drug distribution is great indeed. The drug seller, at every level of distribution, is at the root of the pervasive cycle of destructive drug abuse." People v. Broadie, 37 N.Y.2d 100, 112, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975]. The high Court analyzed the harm presented by those who deal in these illicit and dangerous substances as follows:
[d]efendants would minimize drug trafficking by arguing that it is not a crime of violence. Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers and, because of the high stakes, engage in crimes of violence among themselves (see, e.g., People v. Medina, 47 A.D.2d 717 [two drug pushers, upon learning of a dealer's plot to have one kill the other, kill the dealer]).
More significant, of course, are the crimes which drug traffickers engender in others. The seller often introduces the future addict to narcotics. The addict, to meet the seller's price, often turns to crime to "feed" his habit. Narcotics addicts not only account for a sizable percentage of crimes against property; they commit a significant number of crimes of violence as well (see Task Force on Narcotics and Drug Abuse, op. cit., pp. 10-11; Second Report of the National Comm. on Marijuana and Drug Abuse, Drug Use in America: Problem in Perspective, p. 165; see, generally, Greenberg and Adler, Crime and Addition: An Empirical Analysis of the Literature, 1920-1973, 3 Contemporary Drug Problems 221).
Thus the Legislature could reasonably have found that drug trafficking is a generator of collateral crime, even violent crime. And violent crime is not, of course, the only destroyer of men and the social fabric. Drug addiction degrades and impoverishes those whom it enslaves. This debilitation of men, as well as the disruption of their families, the Legislature could also lay at the door of the drug traffickers (see, generally, Interim Report of the Temporary State Comm. to Evaluate the Drug Laws, NY Legis Doc, 1972, No. 10, p 58). Id. At 112-113.
The Court concluded by observing that: "[m]easured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank. " Id. (emphasis added).
Now, overlay the current nationwide epidemic of overdoses and the deaths attributable to these dangerous narcotics and the harm as observed by the Court over 40 years ago is even more tangible and pronounced. According to the Centers for Disease Control, over 81,000 drug overdose deaths occurred in the United States in the 12 months ending May 2020 which was the highest number of overdose deaths ever recorded in a 12 months period (see "Overdose Deaths Accelerating During COVID-19, https://www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html [last accessed February 3, 2021]) The primary driver of these increased drug overdose deaths are synthetic opiates, primarily fentanyl. Id. The very same deadly and dangerous narcotic that this defendant is alleged to have possessed with the intent to sell it to another person. Moreover, the People argue that the dangerous narcotics that were seized from the defendant's home were found based upon a search warrant wherein the People allege the defendant was selling heroin and fentanyl to a confidential source, an identifiable person, on multiple occasions.
In this case, the defendant herein has been previously convicted, by plea of guilty in Orange County Court on or about November 21, 2019, of Criminal Possession of a Controlled Substance in the 3rd Degree, and admitted to possessing a dangerous narcotic with the intent to sell it to another person. Defendant was free and released on his own recognizance on this class B felony, pending sentencing, when it is alleged that he committed the felony crimes as set forth in the instant Indictment. Therefore, the People have established that there is reasonable cause to believe that the defendant committed the underlying crime for which he was free on recognizance as established by defendant's guilty plea. In addition, the People have established that there is reasonable cause to believe that the defendant committed the crime charged in the Indictment through the grand jury's review of the evidence and the issuance of a true bill of indictment. Thus, the Court is imbued with the authority to set bail in this case as qualifying offenses.
The Court has made an individualized determination that the defendant poses a significant risk of flight to avoid prosecution as set forth in CPL § 510.10(1). The defendant is a second felony offender and, if convicted, faces a mandatory state prison sentence, the minimum of which is 2 years and the maximum of which is 12 years. Defendant was previously convicted of Criminal Possession of a Controlled Substance in the 3rd Degree and was pending sentencing on that charge when he is alleged to have committed these charges.
Defendant has also shown a demonstrated willingness to flee to avoid prosecution as evidenced by the fact that the defendant has had multiple bench warrants issued to secure his attendance in connection with criminal prosecutions. Specifically, in July of 2017 defendant was arrested and charged with two counts of misdemeanor possession of a controlled substance in the Town of Newburgh Justice Court. Twice during that prosecution, in September of 2017 and later in January of 2018, the Town of Newburgh Court had to issue bench warrants to secure defendant's appearance for prosecution on those charges. While the first bench warrant was outstanding in the above case the defendant was arrested for Criminal Impersonation in the 2nd Degree and was subsequently convicted of that crime. This provides further evidence that the defendant, while seeking to avoid prosecution on the drug charges, used another person's identity in an attempt to avoid prosecution on those charges. This is further evidence of a history of flight to avoid prosecution. Additionally, in a prosecution for driving while intoxicated in the Town of Mamakating in 2015 the Town Court had to issue a bench warrant in February of 2018 which warrant was later vacated.
In view of the above, the Court has determined that the least restrictive alternative to reasonably assure the defendant's return to court in this case is monetary bail and non-monetary conditions. In making this decision the Court has considered all of the factors outlined in CPL § 510.30, including the defendant's activities and history as set forth in his criminal history, the seriousness of the charges herein, his prior record of criminal convictions, including the fact that the defendant, prior to arrest, was pending sentencing on a similar charge in Orange Court and was released on his own recognizance on that matter, had had numerous bench warrant issued to secure his attendance in criminal prosecutions and used an alias in an attempt to avoid detection when wanted on a bench warrant.
Defendant presents a substantial risk of flight to avoid prosecution on these serious felonies and has every incentive to flee when facing the instant indictment and sentencing on the unrelated felony narcotics prosecution in Orange County.
Accordingly, defendant shall be committed to the custody of the Sheriff of Sullivan County and bail shall be set as follows: $30,000 cash, $60,000 insurance company bond or $200,000 partially secured appearance bond with a 10% cash component and should defendant post any of these authorized forms of bail he shall be assigned to the pre-trial release program through Sullivan County Probation with drug and alcohol conditions.
This shall constitute the decision and order of this Court.