Opinion
06-20-2018
The PEOPLE of the State of New York, Plaintiff, v. Scott PERNESKY, Defendant.
For the People: SANDRA DOORLEY, ESQ., Monroe County District Attorney By: JENNIFER HYATT, ESQ., Assistant District Attorney, 47 S. Fitzhugh Street, Rochester, New York 14614 For the Defendant: TIMOTHY DONAHER, ESQ., Monroe County Public Defender By: CAMPBELL ROTH, ESQ., Assistant Public Defender, 10 N. Fitzhugh Street, Rochester, NY 14614
For the People: SANDRA DOORLEY, ESQ., Monroe County District Attorney By: JENNIFER HYATT, ESQ., Assistant District Attorney, 47 S. Fitzhugh Street, Rochester, New York 14614
For the Defendant: TIMOTHY DONAHER, ESQ., Monroe County Public Defender By: CAMPBELL ROTH, ESQ., Assistant Public Defender, 10 N. Fitzhugh Street, Rochester, NY 14614
Christopher S. Ciaccio, J.
This matter comes before me by way of an application to reduce bail pursuant to Criminal Procedure Law § 530.30(1)(c), which allows a "superior court holding a term" to fix bail or an order of recognizance when the lower court has "fixed bail which is excessive." Defendant was charged in Gates Town Court with Tampering with Evidence, in violation of Penal Law § 215.40(1), in connection with the fatal overdose of his girlfriend. Bail was fixed by the lower court in the amount of $ 19,000.00 cash or $ 39,000.00 insurance bond.
The application was heard on Friday, June 22, in chambers, not in court, with no reporter. Present were counsel for the defendant and an assistant district attorney. The Court signed an Order releasing the defendant to what is called "electronic home monitoring," in other words, an ankle bracelet, and directed him to be confined to home.
Later that day I heard, as I was preparing to go home and was listening to the evening news (I recall that I also received a text from home) two facts reported in the media that I did not recall having been made apparent at the bail application conference. One was that the defendant was wanted by Gates Police for a period of 78 days in connection with the overdose death of his girlfriend, and two, that he was wanted in connection with his involvement in that death, facts which, if credible, could have impacted my assessment of the defendant's risk of flight.
That gave me the impetus to review the relevant bail statutes and case law. I now state the following.
For the 27 years I practiced in this court, and for the nearly four and one-half years I have been on the bench, it has been the practice in Monroe County Court that bail applications pursuant to CPL § 530.30, where the defendant seeks a hearing because the lower court has denied bail or set an excessive bail, have been done in chambers.
That is a mistake, and the practice is now at an end, at least in my court.
It is a mistake for several reasons.
One, the informality of chambers, as opposed to a courtroom, does not lend itself to precise, accurate and adequate recitation of the facts by counsel, or to a carefully considered and prudential, exercise of judgment.
For example, in this case, I should have been provided, as required by CPL § 530.20, with a copy of the defendant's Criminal Justices Services report of his criminal history. Here, I was given no copy, although counsel did refer to a report, and had it in hand, but that is not the same as receiving a copy in advance and having the opportunity to scrutinize it. To compound the error, I neglected to ask for a copy.
The sheer beehive of activity that is the typical Friday of a Part One judge also tends to obscure and deflect the court's and perhaps the parties' focus on the facts and issues. On any given Friday (or any day of the week, for that matter) a Part One judge signs multiple bail bonds, reviews and signs search warrants, signs various orders, conducts other bail applications as well as hearings, and decides other matters as well. All of this, again, does not lend itself to a good decision-making process.
More important, though, my review of the governing statutes leads me to conclude that a bail application in chambers, without the defendant and without a reporter, i.e., off the record, is not authorized.
CPL § 510.30 states that the defendant "shall" be advised that his release is conditional. That can't happen if he isn't present.
CPL § 510.40 states that the Court "must" direct the defendant to appear at the next court date. That also can't happen if he is not there. And that next court date, if the case has been waived to the grand jury, might be months away. The better course of action, here, would be to give him a court date before the county court, simply to check on the defendant's status, until the matter is indicted.
If bail is denied, a defendant has recourse to a habeas corpus review of the lower court proceeding. That review is limited to the transcript or record of the proceeding (see People v. ex rel Rosenthal v. Wolfson , 48 NY2d 230, 233[1975] ). If there is no transcript, there is nothing for the higher court to review.
CPL § 510.20(2) states that upon the bail application, "the principal must be accorded an opportunity to be heard and to contend that an order of recognizance or bail must or should issue, that the court should release him on his own recognizance rather than fix bail, and that if bail is fixed it should be in a suggested amount and form."
In a chambers application, the defendant is denied this statutory right to be heard. Counsel might assert that the principal's appearance is satisfied by the presence of his counsel. I disagree. The defendant may well have testimony to offer with respect to the "statutory criteria (that) governs exercise of the court's discretion (see CPL § 510.30 )," (Peter Preiser, Practice Commentaries, McKinney's CPL 530.30, 2018 ), such as his character, reputation, family ties, etc.
Beyond the defendant's statutory right to be present at the hearing, he has a due process right as well to be present at all critical stages of his case. Although there is a 1995 Second Department case that says otherwise ( People v. Latif , 212 AD2d 548, 548, [2d Dept 1995] ), it has been rarely cited, and in any event, has been superseded by the import, if not the explicit ruling, of the Court of Appeals decision in Hurrell-Harring v. State , 15 NY3d 8 (2010), in which the Court wrote "There is no question that ‘a bail hearing is a critical stage of the State's criminal process’ " ( Higazy v. Templeton, 505 F.3d 161, 172 [2d Cir 2007] [internal quotation marks and citation omitted] )(Hurrell-Harring v. State at 20).
Bail hearings, no less than arraignments, "encompass matters affecting a defendant's liberty and ability to defend against the charges" ( Hurrell-Harring v. State , 15 NY3d 8, 21, 930 NE2d 217, 223–24 [2010] ).
In accord then with the principles laid out in Hurrel-Harring , I hold that where the bail application is not on the record, and worse, where the defendant is not present, while not so critical as to cause a reversal of a conviction, nonetheless the defendant has been denied due process and fundamental fairness.
Finally, a bail application conducted in chambers denies fundamental fairness not only to the defendant, but to the victim and to the public, both of whom have a right to be present at all proceedings, and who have a right to know what the court has decided and why it decided the way it did. That couldn't be more apparent than in this case.
Accordingly, because in my view the applicable statutes and considerations of due process and fundamental fairness mandate that any bail application be held in court, with the defendant present and on the record, and because here the defendant wasn't present and no transcript was generated, the application for a bail reduction and the subsequent order reducing bail are a nullity, and the Order releasing the defendant is rescinded .
The defendant will be given the opportunity, in person and with counsel, to make a full and complete application for a bail, in court, with a reporter recording the proceeding.
I add that aside from the court's failure to follow what is the implicit directive of the statute, a new hearing would be justified if facts unknown to me were in fact available, were subsequently made apparent to me, and were deemed to be relevant and credible. "Changes in relevant facts, of course, may require reconsideration of a bail determination, if there be pertinent evidence which was not submitted to the bail-fixing court in the first instance" (see People v. ex rel Rosenthal v. Wolfson , 48 NY2d 230, 233[1975] ). Rosenthal does not necessarily authorize the court reopening the hearing on its own, but here, the court's duty to guarantee fundamental fairness compels action to correct the confusion sown by what transpired Friday.
Accordingly, the bail order of June 22, 2018 is RESCINDED . Defendant is to be held pending a bail hearing.
The above constitutes the Decision and Order of the Court.