Opinion
Indictment No. 71903-23
07-24-2023
The People of the State of New York v. Edward Santiago, Defendant.
For the defendant: Maya Henig of the Legal Aid Society. For the prosecution: ADA Michael Del Lago of the Bronx County District Attorney's Office
Unpublished Opinion
For the defendant: Maya Henig of the Legal Aid Society.
For the prosecution: ADA Michael Del Lago of the Bronx County District Attorney's Office
JEFFREY M. ZIMMERMAN, J.
"Maybe you'll find direction
Around some corner where it's been waiting to meet you"
Phil Lesh and Robert Hunter, "Box of Rain"
Clearly, the bass player and lyricist of the Grateful Dead have never read New York's bail reform statutes. Instead of direction, the statutes provide judges with obfuscation and legislative sleight of hand. Faced with a constituency that - justifiably, but incorrectly - assumes that the purpose of bail in New York is to protect the community, but unwilling to join the 49 others states and the federal government in explicitly making that so, our legislature has instead, with each successive amendment to the bail reform statutes, allowed judges to consider more factors that actually go to a defendant's "dangerousness," while still maintaining that the only purpose of bail is ensuring a defendant's return to court.
The legislature's cynical attempt to mollify the public's concerns about safety, without expressly giving judges the tools to address them, has created a confusing mess. This opinion attempts to decode what the legislature has done by (a) figuring out what the statutory language does and does not accomplish; (b) unraveling, and attempting to harmonize where possible, drafting that appears inconsistent on its face; and (c) applying that learning to the case of Edward Santiago.
PROCEDURAL HISTORY
On April 21, 2023, defendant Edward Santiago was arraigned on two separate felony complaints. One complaint charged the defendant with, inter alia, Attempted Murder in the Second Degree (PL § 110/125/25[1]) and Criminal Possession of a Weapon in the Second Degree (PL § 265.03[1][b]), alleging that on or about February 14, 2023, the defendant "pointed a firearm and fired a shot at a group of three (3) male individuals..." The second complaint charged defendant with, inter alia, two counts of Criminal Possession of a Weapon in the Second Degree (PL § 265.03[1][b]), alleging that on April 20, 2023, the defendant, acting in concert with a co-defendant, possessed two loaded firearms: a.22 caliber pistol and a 9 mm pistol. The defendant was ultimately charged, along with his co-defendant, in a seventeen count indictment with various crimes involving attempted murder and weapons possession, stemming from the events described in the two felony complaints.
The co-defendant is charged only with the weapons possession of April 20, 2023. Defendant Santiago is charged with possessing those same weapons, as well as with attempted murder and weapons charges arising from the events of February 14, 2023.
On June 14, 2023, defendant's counsel made a bail application before me. The procedural history of defendant's bail is somewhat complicated, since separate amounts had been set on each complaint, the amount on one of the complaints was subsequently adjusted by a different judge, and the bail amounts on the two complaints were combined when the defendant was indicted. Suffice it to say that by the time the case reached me, defendant's bail was set at $335,000 partially secured bond, secured by 10% of that amount, and $135,000 cash.
Defense counsel requested that the defendant be released on electronic monitoring, based on his age (22), lack of criminal record, commendable pretrial release score from the Criminal Justice Agency, employment history, and family support. Alternatively, she requested that bail be set at $12,000 partially secured bond, secured by 10% of that amount, which is what she indicated defendant's mother could afford. The People opposed, based largely on the strength of the People's case, the seriousness of the charges, and the fact that defendant's conduct "caused serious harm to an individual or group of individuals" (CPL § 510.10[1][i]). After considering the arguments of the parties, the defendant's ability to post bail or partially secured bond, and the factors set forth in CPL § 510.10, I declined to place the defendant on electronic monitoring, but reduced the bail to $200,000 partially secured bond secured by 10% of that amount, $200,000 insurance company bond, or $100,000 cash. This written decision further explains my oral bail decision.
LEGAL ANALYSIS
1. A Very Truncated History of Bail Reform
New York's much discussed bail reform statute was signed into law by Governor Cuomo on April 1, 2019 (L 2019, ch 59, effective January 1, 2020). It was aimed at drastically curtailing the use of cash bail by eliminating it for individuals charged with most misdemeanors and non-violent felonies ("non-qualifying offenses") (CPL § 530.20[1][a]). By contrast, with respect to so-called "qualifying offenses," the legislature gave courts broad authority to determine the appropriate securing order including release on recognizance, release under non-monetary conditions, bail or, in the case of qualifying felonies, remand, provided that the court finds the defendant poses a "risk of flight" and selects "the least restrictive alternative" to ensure his return to court (former CPL § 510.10[1]). Significantly, though, the purpose of bail remained bringing people back to court: New York does not allow judges to consider the safety of the community when setting bail.
The legislature continued to amend the bail law in subsequent years, generally in response to criticism from some quarters that the relaxed rules had led to increased recidivism. These amendments have colloquially been referred to as bail reform "rollbacks." In 2020, a number of new crimes were added to the list of "bail qualifying offenses," including various sex trafficking crimes, all crimes involving the death of another person, various crimes involving strangulation, various assault charges, certain vehicular assault charges, and certain crimes involving sex offender registration and harm to children. (CPL § 510.10[4]). Additionally, these amendments authorized bail for any felony charge committed while the defendant was on probation or post release supervision, any felony committed by a persistent felony offender, and most crimes involving "harm to an identifiable person or property" committed while the defendant was released while charged with a similar "harm" crime. Id.
The retrenchment continued in 2022, when the "harm on harm" provision was clarified to include additional theft crimes (CPL § 510.10[4][t]). Additionally, two firearm offenses were added to the list of "bail qualifying" crimes (CPL § 510.10[4]); judges were expressly allowed to consider whether a charge "is alleged to have caused serious harm to an individual or group of individuals" when setting bail, formerly CPL § 510.30[1][i], now found in CPL § 510.10[1][i]; and judges were required to consider a defendant's prior use or possession of firearms when making bail determinations, formerly CPL § 510.30, now found in CPL § 510.10[1][h].
The 2023 amendments to the bail reform statute added no new "bail qualifying offenses," the legislature apparently having run out of "dangerous" crimes to place into that category. Instead, the most notable change to the bail law was the removal of the requirement that a court select the "least restrictive alternative" when making a securing order determination. This change was heavily hyped by the governor, who claimed that it would give judges "more authority to set bail and detain dangerous defendants." (See Jesse McKinley, Grace Ashford & Hurubie Meko, New York Will Toughen Contentious Bail Law to Give Judges More Discretion, New York Times [April 28, 2023], available at https://www.nytimes.com/2023/04/28/nyregion/bail-reform-ny.html). However, the ultimate purpose of bail remained not community safety, but making sure defendants show up: judges were instructed to set bail "that will reasonably assure the [defendant's] return to court" (CPL § 510.10[1]).
Of course, all of these nearly annual changes to the bail statute were done after extensive legislative hearings in Albany, where noted experts in criminal law were invited to share their penological insights about the purpose of bail and their complex mathematical models about the effects of bail reform; stakeholders from all corners of the criminal justice system provided detailed accounts of how bail reform might affect fairness and crime rates; and legislators asked thoughtful and probing questions before they deliberated with their staffs and colleagues.
JUST KIDDING!! None of that happened. Instead, each of these significant changes to laws that have potentially great effect on the liberty of defendants and the safety of the community were passed as part of the state's budget, a uniquely opaque Albany process that involves glomming obviously non-budgetary items - such as bail reform - onto the passage of legislation required for the state to keep operating. (See Emmanuel Arnaud & Beulah Sims-Agbakiaka, New York Bail Reform: A Quick Guide to Common Questions and Concerns, 106 Cornell L Rev Online 1, 2 [2020]). The result is that bail reform was passed - and then amended - with little thought and even less open debate. (Id. at 2, n. 4). The courts are left to interpret an evolving area of the law that was dictated largely by political expediency rather than policy enlightenment, and burdened with much ambiguity and internal inconsistency.
2. What Does the End of "Least Restrictive" Mean?
Short answer: not much. The Governor's fixation on removing the "least restrictive means" requirement seemed rooted in her belief that judges somehow didn't understand all the tools in their bail toolbox, and that removing this language would give judges more flexibility to use those tools . (See Denis Slattery, New York Budget Talks Inch Forward as Hochul, Legislative Leaders Reach Tentative Bail Agreement, New York Daily News [April 17, 2023], available at https://www.nydailynews.com/news/politics/new-york-elections-government/ny-budget-hochul-legislature-bail-negotiations-20230418-mxsfsnnpszeo3je2vkm23bqtzq-story.html ["I'm going to make sure we have bail laws that give judges the discretion that I believe they should have,' Hochul said earlier this month. 'I want to let judges know their responsibilities and make sure that they're accountable.'"]) She was wrong, though: elimination of this language is largely meaningless in the bail context. Even before the "least restrictive means" language was added to the bail statute in 2019, judges were effectively bound by this restriction, since to do otherwise would have been plainly unconstitutional. "[When] the government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more" (State ex rel. Barrett v. Koehler, 132 A.D.2d 491 [1st Dept. 1987], quoting United States v Salerno, 481 U.S. 739, 754 [1987]). Even unencumbered by the "least restrictive means" requirement, a judge simply can't say, "I think $50,000 bail is enough to ensure this defendant's return to court, but you know what? I'm going to set $100,000."
It is conceivable that the elimination of the "least restrictive means" requirement could expand the ability of judges to set additional non-monetary restrictions, such as placing released defendants in drug treatment or mental health programs. (CPL § 500.10[3-a][f]).
This does not, however, mean that a judge in New York must set bail that a defendant can make.It is true that judges setting bail are required to consider a defendant's financial circumstances, and ability to post bail or partially secured bond; but that doesn't mean that the bail ultimately set must be attainable. Were that the case, there would, by definition, be nobody held in pretrial detention. Sometimes, as with the defendant in this case, the amount a defendant can afford to post - here, $1,200 - is plainly insufficient to incentivize his return to court. Therefore, the two amounts - what a defendant can afford to post, and what bail is ultimately set - need not be congruent.
At oral argument, defendant's counsel, when asked whether "a court could rationally find that an amount of bail a family can make is not enough to ensure [a defendant's] return to court," responded, "I believe that's when remand is permitted. If you're setting monetary bail, the monetary bail should be an amount that the family can make." [Tr. 20.] This seems counter-intuitive to me, and violative of the constitutional limitations set forth in Koehler and Salerno. While it's true that bail and remand are different beasts, it can't possibly be constitutional for a judge to say, "I think $50,000 bail is the minimum that can ensure this defendant's return to court, but since I don't think he can make that, I'm going to remand him instead."
3. The Legislature Plays a Dangerous Game
The recent history of bail reform legislation in New York created a glaring incongruity: while New York continues to be the only state in the country where judges cannot consider community safety in setting bail, almost all the bail law "rollbacks" were expressly related to dangerousness. The amendments added more violent crimes, crimes involving danger to children, sex crimes, and crimes involving "harm" to the list of bail eligible offenses, and expanded the circumstances under which judges could set bail for defendants who committed crimes while already released on pending charges, probation or parole. Although nobody really knows - or wants to know - exactly how the sausage is made in Albany, you don't need to get inside the casing to see that the legislature is trying to have it both ways: they want to mollify those critics who believe that bail reform is letting more dangerous people out to do dangerous things, while still limiting the purpose of bail to making sure people come back to court, foregoing the "public safety" rationale that's a third rail for the more progressive members of the legislature. (See Nicki Reisman, Stewart-Cousins says 'dangerousness' in bail law non-starter for legislative leaders, Spectrum News 1 [February 16, 2022] available at https://spectrumlocalnews.com/nys/central-ny/ny-state-of-politics/2022/02/16/stewart-cousins-says-dangerousness-non-starter-for-legislative-leaders.)
See Grace Ashford & Jonah E. Bromwich, New York's Bail Laws Reconsidered, New York Times [March 29, 2022] available at https://www.nytimes.com/2022/03/29/nyregion/bail-reform-hochul-ny.html.
The legislature's "drift toward dangerousness" is not entirely new. In 1981, the legislature added CPL § 530.60(2), which allowed a court to revoke an order of recognizance or bail for a defendant who, while at liberty on a felony charge, committed a Class A felony, a violent felony, or certain crimes of witness intimidation (see prior version of CPL § 530.60[2][a] [ineffective Dec. 31, 2019]). This change, which was somewhat controversial at the time, reflected a small move toward the use of bail as a preventative measure (People v. Torres, 112 Misc.2d 145, 151 [Sup Ct, NY County 1981] [noting that the change was "motivated by the concept that potential harm to the community, and not only the possibility of flight, should influence the initial decision to permit pretrial release"]).
I have absolutely no view - nor would it be appropriate for me to voice one - on whether judges should be allowed to consider community safety when setting bail. My sole concern is figuring out what, exactly, the legislature is saying on this point.
CPL § 510.10[1] requires a court to consider certain information that the legislature deems relevant to "reasonably assure the principal's return to court" before setting bail. Some of these factors - e.g., "the principal's previous record with respect to flight to avoid criminal prosecution" - are aimed directly at whether the defendant is a good bet to come back to court. Others - "the principal's history of use or possession of a firearm," or "whether the charge is alleged to have caused serious harm to an individual or group of individuals" - would seem to be factors more appropriate in the 49 other states (and the federal courts) that allow judges to consider community safety when setting bail.
So, what are judges supposed to make of a legislative scheme that requires them to set bail for the sole purpose of ensuring a defendant's return to court, but also requires them, in making that determination, to consider factors that clearly go to dangerousness? The language of the bail reform statute, and amendments thereto, focusing almost entirely on making bail available for more dangerous crimes and criminals, leads to only one inescapable conclusion: yes, judges can consider dangerousness, but only as it goes to likelihood to return to court. This may seem oddly inconsistent, given the ongoing debate in New York about the ultimate purpose of bail, but it's the only way to harmonize the language of the statute, as courts are required to do. (People v. Diaz, 62 A.D.3d 157, 165 [2d Dept. 2009], quoting Friedman v. Connecticut Gen. Life Ins. Co., 9 N.Y.3d 105, 115 [2007] ["where possible, [the court] should harmonize [all parts of a statute] with each other... and [give] effect and meaning... to the entire statute and every part and word thereof"] (internal quotation marks and citations omitted)).
In order to harmonize the language, we also have to accept another truism: the legislature is instructing us that dangerous people, or people who have done dangerous things, are less likely to return to court. That's the only conceivable reason for including prior gun use, and the harm done by the instant charge, as factors to be considered in a bail statute expressly limited to ensuring a defendant's return to court. Since we're not allowed to consider those factors in order to guarantee the community's safety, they can only be relevant as indicators of a defendant's likelihood to return to court. And clearly, the legislature wasn't allowing us to consider prior gun use in order to find that somebody who had used firearms in the past is more likely to return to court.
I used to sometimes say, when releasing a defendant on his own recognizance, that I was constrained to do so because "the legislature doesn't allow me to consider dangerousness." I now realize that language was imprecise; I should have said that "the legislature doesn't allow me to consider safety to the community." Because I very much can, and apparently must, consider dangerousness. When the legislature requires me to consider factors relating to dangerousness when setting bail, and annually amends the bail statute to make more violent people and crimes bail eligible, while at the same time insisting that all of this is about returning to court, it is expressly saying that dangerous people who do dangerous things are less likely to return. There is no other conclusion that can logically be drawn.
Of course, judges are not machines; I like to think we were made judges because somebody trusts our judgment and discretion. I don't have to set bail on somebody because he used a gun in the past: there might be mitigating circumstances surrounding his prior gun use, or details about his roots in the community that outweigh the prior violence. The statutory framework still affords judges a very large amount of discretion in setting bail.
4. The Case at Bar
Considering the arguments of counsel, and the factors set forth in CPL § 510.10[1], I find that the defendant is clearly a risk of flight, and that bail is necessary to ensure his return to court. He is charged with committing violent felonies on two separate occasions, both involving the possession of loaded firearms, and one involving shooting a firearm at three individuals he was chasing. Based on the evidence described to me, the People appear to have a very strong case: the alleged shooting is captured on video. If convicted of these crimes, the defendant is facing mandatory state prison time. He therefore has a strong incentive to flee rather than seeing this case through. I have also considered, as I'm required to do, the amount of bail the defendant can post, and I don't think it's sufficient to ensure his return to court.
Even on the "mere possession" charge, there is circumstantial evidence that the weapons the defendant is accused of possessing had been recently fired.
One factor I'm required to consider - whether the charged conduct is alleged to have caused "serious harm" to an individual or group of individuals - also cuts against the defendant's application and deserves special mention. The defendant is charged with firing a loaded weapon at three men. Defense counsel argued that because these bullets didn't hit their targets, nobody was "seriously harmed." The People argued that "serious harm" is distinct from "serious physical injury," a term that the legislature has defined in other contexts, and about which a rich body of caselaw has developed. (See, e.g., People v. Tucker, 91 A.D.3d 1030 [3d Dept. 2012]). I agree with the People. Had the legislature intended to limit this factor to situations where injury was actually caused, they could easily have done so. However, they chose to use a more expansive term that, on its face, encompasses not only physical injury, but mental injury and psychological trauma as well. (See, e.g., People v. Blanco, 75 Misc.3d 1207 (A) [Crim. Ct., NY County 2022] [mere messages and phone calls in violation of order of protection constitute "harm" despite lack of physical injury]). If you shoot live, deadly bullets directly at somebody, you have caused them "serious harm," whether or not your aim was good.
I'm also required to consider the defendant's "activities and history." He does have strong family ties - he had family members in court when this bail application was argued - and no adult criminal record. Balancing this with the seriousness of his offenses, the penalties he faces if convicted, and the harm caused by his actions, I believe that the amount of the bail previously set is higher than necessary to secure his return, and some downward adjustment of his bail is warranted. Accordingly, defendant's bail is reduced to $200,000 insurance company bond, $200,000 partially secured bond secured by 10% of that amount, or $100,000 cash.
This constitutes the decision and order of this Court.