Opinion
Index No. 2029/2021
11-17-2021
The PEOPLE of the State of New York, v. Jerrell DUNN
Cyrus R. Vance, Jr., District Attorney (Kaitrin Roberts of counsel), for plaintiff. Legal Aid Society (James Phillips of counsel) for defendant.
Cyrus R. Vance, Jr., District Attorney (Kaitrin Roberts of counsel), for plaintiff.
Legal Aid Society (James Phillips of counsel) for defendant.
April A. Newbauer, J. This case raises the question of what collateral is a sufficient pledge on a partially secured bond, which requires an analysis of the incentive that such a bond represents for a defendant to return to court. On October 7, 2021, the court conducted a surety hearing on an application to post a partially secured bond (PSB) for the defendant's release. Six proposed obligors came jointly before the court, as did the Assistant District Attorneys and defense counsel. For reasons that are stated below, the court granted the application. Because bond hearings are in the nature of proceedings that are "capable of repetition but evading review" this decision follows.
See John C. Longmire, CPL § 520.30: New York Supreme Court Holds that Defendant has the Burden of Proving that Collateral Posted to Indemnify a Bail Bond Obligor is Not the Fruit of Criminal or Unlawful Activity , 68 St. John's L.Rev. 297, 306 fn 48 and cases cited therein (1994).
CPL § 520.10 requirement of a partially secured or unsecured bond
In setting bail on qualified offenses, the court must impose the least restrictive means necessary to ensure the principal's return to court, taking into account, at a minimum, the eight factors enumerated in the statute. See CPL § 510.30(1)(a)-(h). Against the presumption of release, the court weighs the likelihood that the defendant will return to court to face serious charges, knowing the potential for a conviction and incarceration.
Although safety impliedly remains a concern in some aspects of the revised bail laws, the legislature removed courts’ discretion to use bail as a proxy for safety in several ways. For example, the Legislature narrowed the court's the scope examination of the defendant's past conduct to the "previous record with respect to flight to avoid prosecution" rather than simply the defendant's failures to appear in court.
See W.C. Donnino, NY McKinney's Supplementary Practice Commentaries, 500.10 et seq.
A second change limiting judges’ discretion was to the setting of bail under CPL § 520.30. Prior to the 2019/2020 revisions to the bail statute, there were nine different forms of bail available to the court, but judges almost universally chose to set cash and insurance company bail bond alternatives. In revising the bail statute, the Legislature provided that judges could a) leave the choice of bail to be posted in the hands of the principal, or b) designate three forms of bail, one of which had to be either an unsecured surety bond or a partially secured bond. In addition to its desire to curtail judges’ discretion and force courts to rely less on cash and insurance bond alternatives, this provision was also prompted by the Legislature's desire to have obligors avoid the fees and expenses associated with the private bond industry. Procedural History
Against the Odds: Experimenting with Alternative Forms of Bail , Vera Inst. of Justice 1,2 (Sept 2017).
Defendant Jerrell Dunn was charged with operating as a major trafficker under CPL § 220.77. Pursuant to CPL § 530.20(1)(b), the arraignment court set bail at $200,000 cash, $600,000 insurance company bond and $600,000 partially secured bond with a 10% surety. A grand jury subsequently indicted Dunn for that offense. At the supreme court arraignment, the court reset the bail at $350,000 cash, $500,000 insurance company bond and $750,000 partially secured bond at 10%, with a 72-hour surety provision for the bonds.
Given the Legislature's intent in revising the laws on bail setting, it is certainly open to question whether setting a higher dollar amount for a partially secured bond representing 33 percent more than the insurance company bond violates public policy. However, this question was not raised in this application, in which the obligors merely sought to post the higher amount set for the partially secured bond.
Five obligors initially sought to interpose a bond affidavit for the partially secured bond, but by the time of the hearing a sixth obligor (Mansfield) had joined them. During the District Attorney's off calendar review of the financial information provided by the obligors, Mansfield expressed reluctance to continue as an obligor.
Conduct of the CPL § 540.20 Proceeding
On October 7, 2021, the court conducted the hearing with the six obligors appearing by zoom. The court made the following ‘opening statement’ to the obligors:
If the obligors would pay some attention now, what I'm going to tell you is very important. I as the
judge am the one charged with the responsibility of deciding whether to accept a bond posting. It is not up to [the defense attorney] as [the defendant's] lawyer. It is not up to the People, to [the ADA], as the representative of the District Attorney's office. It is up to me. And I accept that responsibility.
Also, I want to let you know that [the defense attorney] does not represent you. He represents [the defendant]. So he's doing everything possible in the interest of [the defendant]. Now, that may or may not be also exactly the same as your interests. I as the judge have to make sure that you understand what your interest is here, not just what [the defendant's] interest is here. I also want to emphasize that [the ADA] is not part of the Court. She's the District Attorney's office. She's a separate entity. She's representing the People of the State of New York through the District Attorney's office, but she doesn't represent the Court. I am the one to decide the bond here. Does everybody understand that?....
In deciding whether to approve a partially secured bond, a court must assure itself that the obligor understands the nature of the obligation and the potential financial consequences that ensue if the defendant fails to return. Accordingly, it is incumbent on the court to engage the obligor in a dialogue on the record. The court offered a two part explanation before questioning the obligors. The first part explained the overall terms of the bond:
[S]o let me just also say some other things about what it means to sign an affidavit saying that you want to pledge a partially secured bond to allow someone who is in custody to be at liberty pending their trial in Court, which is what you're asking.
There is an affidavit form. You're going to be asked to swear or affirm that the statements you made in it are
true, because it's very important that they are true. You're taking on a very important responsibility. You are telling me, telling the Court, that you are going to assure that [the defendant] come to court to make his court appearances. And that you're going to do that based on your relationship with him, and the fact that you are risking a lot financially by posting the bond.
You are together collectively posting the
$75,000. It's not one individual. It's split among you, which is the deposit that has to be made into the clerk's office to get to square one if I approve the bond. If [the defendant] does not come back to court, you will lose any cash that you put into that deposit. That's one thing you risk.
The other thing that you risk, which is much more complicated, is the potential that a collection will be made against your resources and your property up to the total of $750,000. It's not that each of you will owe $750,000 split into six. You're each promising to pay the State of New York $750,000, minus the $75,000, which will already be deposited. So a total of $675,000 will be owed to the State of New York by you, individually as well as a group, if [the defendant] does not come back to court.
The second part of the court's explanation reviewed the potential financial consequences. The court detailed point by point the serious adverse consequences obligors could face if the defendant did not come back to court, including the garnishment of wages from paychecks, seizure of tax refunds, and forfeiture of personal property, such as a car, house or condo. Further the court emphasized the risk of impairment of credit, and the difficulty of leasing an apartment, buying a property, obtaining additional credit or even employment as a result of a judgment.
The court elected to have the obligors take an oath and swear or affirm that the information contained in their affidavits was true and accurate. The court inquired about each obligor's understanding of their financial commitment, their relationship to the defendant, their financial circumstances, how much of the cash deposit they contributed and from what source, who asked that they post a bond, and—in an effort to determine whether their posting was illusory—whether they believed someone would reimburse them. After the initial round of questioning, the court asked additional questions posed by the People. Then after hearing argument by the People and defense counsel, the court approved the bond.
Legal Analysis
CPL § 520.30 provides in relevant part: Following the posting of a bail bond and the justifying affidavit or affidavits ... The court may conduct an inquiry for the purpose of determining the reliability of the obligors ... whether any feature of the undertaking contravenes public policy. The court may inquire into any matter stated or required to be stated in the justifying affidavits; and may also inquire into other matters appropriate to the determination, which include but are not limited to the following:
(a) The background, character and reputation of any obligor; and
(b) The source of any money or property deposited by any obligor as security, and whether any such money or property constitutes the fruits of criminal or unlawful conduct; and
(c) The source of any money or property delivered or agreed to be delivered to any obligor as indemnification on the bond, and whether any such money or
property constitutes the fruits of criminal or unlawful conduct; and
(d) The background, character and reputation of any person who has indemnified or agreed to indemnify an obligor on the bond.....
A ‘partially secured bail bond’ is defined as a bail bond secured only by a deposit of a sum of money not exceeding 10% of the amount of the undertaking. CPL § 500.10(18). Bearing in mind that the overarching purpose of the new bail statute is to adopt the least restrictive means to ensure a defendant's return, the court may review a proposed obligor's liquid assets in conjunction with any collateral as well as future assets. See People v. Watson, 71 Misc.3d 642, 142 N.Y.S.3d 919 (Sup. Ct., N.Y. County 2021).
In addition, a court considering a bail bond proffer retains broad latitude to consider the background, character and reputation of any person or persons who attempt to indemnify a bond. People ex rel. Prieston v. Nassau County Sheriff's Dept., 34 N.Y.3d 177, 114 N.Y.S.3d 275, 137 N.E.3d 1100 (2019). With a partially secured bond at any percentage, the court has discretion to determine whether an individual obligor's posting provides sufficient incentive for the defendant to return to court. The court's inquiry is more than a consideration of the amount of cash deposited, but also the obligor's ability to fulfill the terms of the bond through judgments, garnishment, attachment, liens and the like, and the relationship of the obligor to the defendant. Many obligors will have limited liquid assets, but earn wages subject to garnishment or own property subject to lien. For others, their relative youth and earning capacity is ample evidence of the financial risk to assure the court of their serious commitment to the defendant's return to court. Finally, the court must consider the nature of the "ties that bind" the obligor to the defendant, so that the obligors’ sway over the defendant may be great. See People v. Jaquez, 64 Misc. 3d 405, 103 N.Y.S.3d 815 (Sup. Ct., Bronx Co. 2019) ; People v. Robinson, 69 Misc. 3d 553, 131 N.Y.S.3d 810 (Sup. Ct., Bronx Co. 2019) (when bail posted by family or close friends, defendant motivated by loyalty to return to court).
The defendant has the burden of proving to a court's satisfaction, by a preponderance of the evidence, that the cash or collateral posted to secure a bond originates from a legitimate source, and is not the fruit of criminal or illegal conduct. People ex rel. Aidala v. Warden, 100 A.D.3d 667, 952 N.Y.S.2d 904 (2d Dept. 2012) ; People v. Esquivel, 158 Misc. 2d 720, 601 N.Y.S.2d 541 (Sup. Ct., N.Y. County 1993). See also, People ex rel. Francis v. Brann, 170 A.D.3d 1254, 95 N.Y.S.3d 540 (2d Dept. 2019). As the court reasoned in People v. Esquivel, 158 Misc. 2d 720, 601 N.Y.S.2d at 546, placing this burden on the defendant in a collateral matter to his defense has precedent, and makes sense in terms of the defendant's access to the evidence necessary for the sufficiency hearing. However, once the defendant puts forward a credible W-2 wage earner with ties to the defendant, the burden should shift to the People to credibly undermine the obligor's legitimacy. People v. Jaquez, 64 Misc. 3d at 408, 103 N.Y.S.3d 815.
In this case, several of the obligors earned six figure salaries and together certainly provided sufficient potential collateral to satisfy any judgment. The People's apparent concern about the illusory nature of the deposit was primarily based on the nature of the charges against the defendant and the seizure of more than $17,000 in cash at his home. However, none of the obligors were living with the defendant or implicated in the allegedly highly lucrative drug operation. The People also alleged that some of the six obligors did not have sufficiently close relationships with the defendant. While it is true that the co-obligors formed what was in the nature of a limited partnership to post the bond, they apparently did so to overcome the perception of those closer to the defendant personally having insufficient financial inability to shoulder such a large obligation. There were at least two, if not three of the obligors, the defendant's brother, his cousin, and the brother of the defendant's girlfriend—who is also an attorney—who did have regular contact with the defendant.
Finally, the People argued that the defendant's brother would not have assets left after posting the cash and was therefore making a "false promise" in the justifying affidavit. The court rejects that notion, particularly after its warning to the obligors that forfeiture of the bond based on the defendant's absconding signifies not only a loss of cash deposit but a large judgment against them. Even unsophisticated debtors grasp the consequences of garnishment, attachment and of a "bad" credit score, if not the panoply of associated effects.
Such as higher interest charges, debt collection, anxiety, depression and other health risks. See A Financial Security Threat in the Courtroom, [Aspen Institute Sept 2021].
For the foregoing reasons, the bond was approved. This constitutes the decision and order of the court.