Opinion
12-034-I
07-20-2020
The PEOPLE of the State of New York v. David R. LANG, Defendant.
Kristy L. Sprague, Esq. Essex County District Attorney (Michael P. Langey, Esq., of counsel), Elizabethtown, New York. Tendy Law Office LLC (Sheila Tendy, Esq., of counsel), New York, New York, for the Defendant.
Kristy L. Sprague, Esq. Essex County District Attorney (Michael P. Langey, Esq., of counsel), Elizabethtown, New York.
Tendy Law Office LLC (Sheila Tendy, Esq., of counsel), New York, New York, for the Defendant.
Richard B. Meyer, J.
Motion by the defendant for release on his own recognizance or on reasonable non-monetary conditions.
The Court has considered the following papers: order to show cause dated June 30, 2020 and affirmation of Sheila Tendy, Esq. dated June 29, 2020 with exhibit A thereto, all in support of the motion; and reply affirmation of Michael P. Langey, Esq. dated July 10, 2020, affidavit of David Reynolds, Essex County Sheriff, sworn to July 10, 2020, and a copy of the report of the defendant's criminal history prepared and maintained by the New York State Division of Criminal Justice Services, all in opposition to the motion. In addition, this Court heard and has considered the oral arguments presented by counsel on July 13, 2020.
The defendant is charged by a two-count indictment with the crimes of intentional murder in the second degree ( Penal Law § 125.25[1] ), a class A-1 felony, and criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ), a class A misdemeanor. The charges arise out of an incident that occurred on June 19, 2012 when the defendant shot and killed his brother at the home they shared together in the town of Crown Point, Essex County. At a jury trial held in August, 2015, the defendant was found guilty of both charges. He was thereafter sentenced to an indeterminate term of imprisonment of seventeen (17) years to life. On June 23, 2020, the Court of Appeals reversed an order of the Appellate Division, Third Judicial Department, affirming the judgment of convictions and ordered a new trial due to an error by this Court in substituting an alternate juror for a juror who failed to appear for medical reasons, namely, a medical appointment for her child ( People v. Lang , ––– NY3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 NY Slip Op. 03487, 2020 WL 3420879 [2020], reversing 164 AD3d 963, 82 N.Y.S.3d 229 [3d Dept., 2018] ). The defendant now seeks to be released on his own recognizance or on non-monetary conditions pending a new trial, the same having been scheduled to commence on September 14, 2020 by an order of this Court dated June 24, 2020.
"Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff. * * * A principal stands charged with a qualifying offense when he or she stands charged with: * * * a class A felony defined in the penal law, other than in article two hundred twenty of such law with the exception of section 220.77 of such law ..." ( CPL § 530.20[1][b][iv] ). "[T]he court, in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal's return to court when required. In determining that matter, the court must, on the basis of available information, consider and take into account information about the principal that is relevant to the principal's return to court, including:
(a) The principal's activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal's criminal conviction record if any;
(d) The principal's record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.21 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;
(e) The principal's previous record with respect to flight to avoid criminal prosecution;
(f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal's individual financial circumstances, and, in cases where bail is authorized, the principal's ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;
(g) Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:
(i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and
(ii) the principal's history of use or possession of a firearm" ( CPL § 510.30[1] ).
Here, the defendant has no prior criminal convictions nor an adjudication as a juvenile delinquent. He has been incarcerated and imprisoned for eight years and there is no information available to this Court regarding his activities during that time other than defense counsel's own, unsupported representations that the defendant has been a model prisoner. The defendant contends that he lacks financial resources and professes to only have approximately $1,300.00 in cash. He has offered to post the same as bail in return for his release.
While he has no record of flight to avoid criminal prosecution, he has been incarcerated or imprisoned for all but eleven days since his arrest. He was incarcerated in the Essex County Jail from June 19, 2012, the date of the offense charged, until August 15, 2013 when he was transferred to the custody of the New York State Department of Corrections and Community Supervision (DOCCS) to serve a determinate sentence of fifteen years for his conviction of manslaughter in the first degree ( Penal Law § 125.20 ), a class B violent felony, to which he had pleaded guilty. When that conviction and sentence were vacated ( People v. Lang , 127 AD3d 1253, 7 N.Y.S.3d 618 [3d Dept., 2015] ), the defendant was immediately returned to the custody of the Essex County Sheriff where he remained on bail of one million dollars cash and two million dollars insurance company bail bond until the first day of his jury trial on August 3, 2015. On that day, this Court reduced the defendant's bail to one hundred thousand dollars cash or two hundred thousand dollars insurance company bail bond to facilitate his release so that he could better assist his attorneys in his defense. Once the jury returned a verdict of guilty on August 14, 2015, the defendant was remanded without bail to the custody of the Sheriff until he was sentenced to a determinate term of seventeen years with DOCCS in November 2015. Following the reversal of his conviction and remission to this Court for a new trial, he was remanded without bail to the custody of the Sheriff on June 25, 2020, where he now remains. Other than the eleven days during which his jury trial was taking place, he has been incarcerated in the Essex County Jail or imprisoned with DOCCS. Thus, he has had no real opportunity to flee so the lack of any record of flight is of little import.
The defendant is charged with one of the most heinous and violent offense under the Penal Law, murder in the second degree, committed against his own brother whom he shot in the left rear of the head with a rifle on June 19, 2012. Unlike most instances where a securing order is to be issued and a court must assess the risk of a defendant fleeing to avoid prosecution based solely on an accusatory instrument and criminal history report, this Court has the benefit of having heard all of the trial evidence. The evidence at that trial, and which it is expected will be produced at the upcoming retrial in September, is overwhelming of the defendant's guilt and is indicative of a cold-blooded killing.
On the date of the offense, at approximately 2:45 p.m., the defendant placed a telephone call to the Essex County 911 call center and, in a clear voice with no slurring or words, engaged in the following conversation with the operator:
911: Essex County 911 - What's the address of your emergency?
LANG: 325 Lake Road
911: What do you need there sir
LANG: Well I just shot my brother
911: You what?
LANG: I just shot him
911: Ok and is he ok
LANG: No he's dead
911: Ok . just one second ... and your name sir
LANG: David R. Lang ... its right here at my residence so don't worry
911: Ok, 325 Lake Road
LANG: Yup
911: What's your brothers name
LANG: It was Russell (inaudible)
911: It was Russell?
LANG: Yup
911: Ok well where is he - is he in the house?
LANG: Nope - right in the road out here.
911: He's outside in the road
LANG: Yup
911: Ok, what did you shoot him with
LANG: None of your god damn business
Two New York State troopers, Troopers Bogart and Peters, responded to the scene at approximately 3:00 p.m. Bogart observed the victim lying in the driveway in a pool of blood. Peters directed the defendant to come out of the house, and when he complied he was promptly handcuffed. Peters also seized a .22—caliber magnum rifle that defendant identified as the rifle he used to shoot the victim. Peters went to the brother and found that he was still breathing and had a pulse. Once placed in Bogart's car, the defendant waived his Miranda rights and, in response to Bogart's questions, said that he meant to kill his brother, that it was not an accident and that "Yes, hell, yes, [he] wanted [his brother] dead." Even though the defendant admitted to drinking alcohol on that day he admitted that he acted purposefully after an argument with the victim. Bogart asked the defendant if he meant to shoot a warning shot and the brother got in the way. The defendant said "no", that he meant to shoot his brother, that he had wanted his brother dead for a long time, and that his brother "looks dead to me." Although both Peters and Bogart smelled alcohol on the defendant's breath, the defendant was calm, his speech was clear, he was steady on his feet and able to walk. The defendant's demeanor and behavior and statements were matter-of-fact, unremorseful and uncompassionate.
The defendant's defenses at trial were clearly rejected by the jury, and were belied by the evidence. His attempt to convince the jury that the bullet ricocheted and accidentally struck his brother was contradicted by the fact that he told Bogart that his brother was bending down when he shot him, so any claim that the defendant was shooting up in the air at a lilac tree is without support. Moreover, if it had been an accidental ricochet, the defendant 's demeanor and voice in his call to 911 would have been excited and upset, he would have demanded that emergency medical personnel be dispatched, and he would have been tending to and comforting his brother in the driveway after the shooting and when the troopers arrived. His actions and statements were not consistent with those of someone who had accidentally shot another person, particularly a family member. His statements to the 911 operator and the troopers further contraindicate any accidental shooting or lack of intent to shoot and/or kill his brother.
As for his claim of intoxication, the only evidence is the result of the defendant's blood alcohol test taken many hours after the shooting. The opinion of the defendant's extrapolation expert was, at best, speculative because of "many unknown factors, including when defendant last consumed alcohol." (People v. Lang , supra. , at 967, 82 N.Y.S.3d at 234). There was no evidence establishing that the defendant did not consume alcohol after shooting the victim for he admitted to drinking "every god damn day." Upon review of the trial transcripts, it appears that the testimony of certain of the defendant's expert witnesses amounted to unscientific speculation. Even if a jury accepts the defendant's defense at trial that he was so intoxicated as to have been incapable of forming the intent to kill his brother, he would likely be convicted of manslaughter in the first degree, an offense for which he could be sentenced to a determinate term of up to twenty-five years.
The risk of the defendant's flight is greater now than before. Having once been convicted by a jury of murder, his confidence in being acquitted must be shaken, particularly since the jury flatly rejected his defenses of intoxication and accidental ricochet. True, international borders are closed and the defendant lacks a passport, but other countries are not the only places where a fugitive can hide. Domestically, the COVID-19 pandemic has restricted the methods employed by law enforcement officers to seek out and locate fugitives. Fewer people are out and about due to staying home, thus reducing the chances that a fugitive will be spotted, making rural, suburban and urban areas more of a safe haven.
The defendant has contended that, due to his current age of seventy-eight, any sentence for a conviction longer than that already served, with credit for any good time would be a life sentence and it is clear that he is seeking to avoid any sentence beyond that already served. He has nothing to lose by fleeing and becoming a fugitive. A potential sanction for committing the offense of bail jumping in the first degree ( Penal Law § 215.57 ), a class D felony, which carries a maximum indeterminate sentence of two and one-third to seven years, is hardly a deterrent to someone the defendant's age who is facing an indeterminate sentence of at least 15, and up to 25, years to life if convicted of the murder charge, or a determinate sentence of up to 25 years if convicted of manslaughter. Also, his callous behavior towards his deceased brother reveals that he lacks any particular affection for family and that release into the custody of a family member may place the latter at risk of harm. The defendant has twice been afforded the opportunity to demonstrate to this Court true remorse and regret over his brother's death, and he has wholly failed to do so. Similarly, at the defendant's prior sentencings, no family member came forward and spoke for the deceased brother. This gives this Court pause to consider whether family members may not stand in the way of the defendant's decision to flee and go into hiding. The defendant's offer of approximately $1,300.00 cash bail is patently insufficient to secure the defendant's attendance at trial.
The defendant's concerns over contracting the COVID-19 virus if he remains incarcerated are insufficient to justify release. As reflected in the affidavit of Sheriff Reynolds, the Essex County Jail has implemented significant safeguards, applicable to inmates and staff, to protect the health and safety of inmates. All persons entering the jail are screened for temperature, and new inmates are quarantined for fourteen days. There is no infected person in the jail, nor has there been one. The defendant has his own cell, sink and toilet. Inmates are provided with masks, hand sanitizer, and cleaning products, and are mandated to clean the surfaces of their cells at least twice per day. The jail is only at fifty percent capacity, thereby making social distancing easier to practice and enforce.
For the foregoing reasons, the defendant's motion is granted to the extent that he is committed to the custody of the Essex County Sheriff until bail is posted in the amount of five hundred thousand dollars ($500,000.00) cash, two million dollars ($2,000,000.00) insurance company bail bond, or two million dollars ($2,000,000.00) partially secured surety bond with a ten percent (10%) deposit.