Opinion
2005KN040974.
Decided June 21, 2006.
Defendant was arraigned on four counts of Criminal Sexual Act in the First Degree [PL 130.50(3)], one count of Sexual Abuse in the First Degree [PL 130.65(3)], three counts of Sexual Abuse in the Second Degree [PL 130.60(2)], and one count of Endangering the Welfare of a Child [PL 260.10(1)]. Defendant is twenty years old, and the alleged victim was under the age of eleven on the dates of the occurrences. Defendant resides with his uncle, and the alleged victim is the uncle's daughter who resides with her mother, visiting her father periodically. The rest of Defendant's family lives in Georgia, and Defendant is unemployed.
Based on the alleged facts of the case, the People requested the court to sign an Order of Protection for the alleged victim and to set bail at $40,000. Defense counsel requested that the court release Defendant on his own recognizance, basing its request on the fact that this is Defendant's first contact with the criminal justice system, he was recommended for release on his own recognizance by CJA, and that he has been living in New York at the same address for approximately two years. When questioned by the court, Defense counsel admitted that Defendant had nowhere to stay except with his uncle, the father of the alleged victim, and that Defendant was unemployed with no financial resources.
The court issued the Order of Protection and set bail at $10,000; this decision details the court's rationale in making such bail determination.
The granting or denying of bail lies within the discretion of the judge in felony cases. People v. Howard, 41 AD. 2d 683 (3rd Dept. 1973). In exercising such discretion, the court must rely on certain criteria set forth in section 510.30 of the CPL.
Section 510.30(2)(a) enumerates the criteria the court should consider in determining whether to set bail or to release a defendant on personal recognizance. The enumerated factors are:
(i) The principal's character, reputation, habits and mental condition;(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in the community; and(iv) His criminal record if any; and
(v) His record of previous adjudication as a juvenile delinquent . . .; and
(vi) His previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and
(vii) . . . the weight of evidence against him . . .; and
(viii) . . . the sentence which may be or has been imposed upon conviction.
In the instant case, Defendant has no prior criminal record or contact with the criminal justice system, which were significant factors in the CJA recommendation. However, the criteria that weighed most heavily in this court's determination were the nature of the offense, the penalty that might be imposed if convicted on the felony counts, and the probability of Defendant's willing appearance or flight to avoid punishment. See People v. Warden, Brooklyn House of Detention, 21 NY2d 18, 286 NYS2d 240 (1967).
Defendant has no family ties to New York except for the uncle with whom he resides; all of his other family live in Georgia. Because the court has issued an Order of Protection, Defendant cannot remain in residence with his uncle because of the alleged victim's visitations to that address, and Defendant, by his own admission, has nowhere else to live. Further, since Defendant is unemployed, he has no financial resources to obtain alternate housing.
The charges against Defendant are severe, and the penalties, upon conviction, are formidable. Based on the information provided to the court, it appears that Defendant's most significant family and social contacts are outside the state, and with no financial resources of his own there is a good possibility that he may leave the jurisdiction to avoid serious prosecution. See generally, People v. Higgins, 133 AD2d 515, 519 NYS2d 888 (4th Dept. 1987). Under these circumstances, the court could not justify releasing Defendant on his own recognizance.
The purpose of setting bail is to insure a defendant's attendance at trial. People v. Warden, 135 AD2d 421, 522 NYS2d 2 (1st Dept. 1987). "The only goal a judge may consider in setting discretionary bail is that of insuring the presence of the defendant at trial." People v. Saulnier, 129 Misc 2d 151, 492 NYS2d 897 (New York County 1985), citing Sardino v. State Comm. on Judicial Conduct, 58 NY2d 286, 289 (1983). Bail is not meant to be punitive nor a form of preventive detention, but merely to impose a financial incentive to insure that a defendant will return to the court if he or she meets the bail condition.
The policy of the law favors bail because there is a presumption of innocense and, detention prior to conviction is only justified if some legitimate purpose of the criminal process requires it. Therefore, the amount of bail set must not be more than is necessary to guarantee a defendant's presence at trial, with the reasonableness of that amount determined by the circumstances surrounding each individual prisoner. People v. Maldonado, 95 Misc 2d 113, 407 NYS2d 393 (New York County 1978).
Under the facts of the case at bar, acceding to the People's request of bail at $40,000 would appear to be excessive, considering the financial resources of Defendant. Therefore, the court determines that setting bail at $10,000 is significant and would be sufficient to insure that Defendant would return to court if he met that condition of release.
This constitutes the decision and order of the court.