Opinion
0080/18
12-24-2019
The PEOPLE of the State of New York v. Karen STEININGER, Jaime Bautista, Defendants. The People of the State of New York v. Michael Mazzio, Angelo Mazzio, Salvatore Mazzio, Karen Steininger, Jaime Bautista, Defendants.
New York County District Attorney Cyrus R. Vance Jr. (Guy Tardanico and Denise Vasel, for the People) John Rapawy (for Defendants Salvatore Mazzio, Angelo Mazzio and Michael Mazzio) John Russo (for Defendant Karen Steininger) Jonathan Cartelli (for Defendant Jaime Bautista)
New York County District Attorney Cyrus R. Vance Jr. (Guy Tardanico and Denise Vasel, for the People)
John Rapawy (for Defendants Salvatore Mazzio, Angelo Mazzio and Michael Mazzio)
John Russo (for Defendant Karen Steininger)
Jonathan Cartelli (for Defendant Jaime Bautista)
Daniel P. Conviser, J. This decision addresses an issue of first impression under New York's new bail reform law: May a defendant at liberty on bail imposed prior to the law's effective date of January 1, 2020 who stands charged with only "non-qualifying offenses" for which monetary bail cannot be set under the new statute, agree to continue such a monetary bail condition after the law's effective date if the defendant prefers that to the imposition of alternative "non-monetary" conditions the court would otherwise impose (hereinafter a "transitional bail waiver"). The Court holds that such transitional bail waivers are lawful.
STATEMENT OF FACTS
The defendants here are among numerous individual and corporate defendants charged in four indictments with a wide ranging corrupt scheme involving the New York City tow truck and vehicle damage repair industries. New York City's tow truck industry is heavily regulated by the Department of Consumer Affairs and the NYPD. The indictments allege that the defendants, through deception, coercion and in some cases threatened or actual violence or intentional property damage attempted to obtain a de facto monopoly over portions of the New York City tow truck industry, inflated towing costs, defrauded insurance companies and made numerous false filings with New York City regulatory agencies. The defendants in these four indictments are charged with numerous counts of Enterprise Corruption, grand larceny, the filing of false instruments, tax fraud, conspiracy, money laundering, the possession of forged instruments, criminally violating New York's anti-monopoly statute (the "Donnelly Act") and other crimes.
In addition to the two indictments listed here (80 & 81 of 2018) the allegations in these related cases are also encompassed in indictments 82 & 83 of 2018.
At initial Supreme Court arraignments on these indictments on February 21, 2018, virtually all of the defendants either appeared with monetary bail packages which had already been agreed on with the People or had monetary bail conditions imposed which were then satisfied. Virtually all of the defendants have been at liberty, without incident, throughout the pendency of these cases pursuant to these monetary securing orders. Pretrial proceedings have taken an inordinate amount of time due to the complexity and length of the indictments, the voluminous discovery, the extensive pre-indictment proceedings which included extended wiretaps and numerous search warrants and extensive motion practice. It is anticipated that firm trial dates will be scheduled in the next couple of months for all of the defendants who have not entered guilty pleas.
On December 10, 2019, all of the defendants in these indictments appeared in court primarily for the purpose of having the court modify their securing orders to comply with New York's bail reform law (the "bail reform law") which will become effective on January 1, 2020. Although almost none of these defendants have expressed concerns about the securing orders they have been subject to, almost none are eligible to have monetary bail set on or after January 1, 2020. The Court therefore announced that it would exonerate the monetary bail in all of these cases (except one for which monetary bail continued to be a securing order option) and either release defendants on their own recognizance or impose "non-monetary conditions" pursuant to the new statute.
At the bail hearings that day, however, a recurring issue arose for some defendants: the possible preference for the continuation of their monetary bail, notwithstanding the new law, rather than be subject to the new non-monetary conditions the People or the court proposed. The court opined on that day that it was not certain whether the retention of monetary bail under those circumstances was lawful and adjourned those cases to January 7, 2020 for a final decision. The applications of the individual defendants are outlined below.
Prior Proceedings Concerning Defendants
Salvatore Mazzio, Angelo Mazzio & Michael Mazzio
Salvatore Mazzio, Angelo Mazzio and Michael Mazzio are brothers who are all charged in the instant indictment with Donnelly Act violations, conspiracy and offering false instruments for filing. The highest felony charges for all three defendants are Class E felonies. The Mazzio brothers individually or jointly were the paper owners of a tow truck company and also engaged in "heavy duty" towing, that is, the towing of large trucks. Heavy duty towing is often necessary because trucks hit "low bridges" and is particularly lucrative. Michael Mazzio is also alleged to have worked with a number of co-defendants to unlawfully allocate heavy duty towing jobs in certain geographic regions of New York City and split the proceeds of that work. Upon their initial Supreme Court arraignments in these cases on February 21, 2018, this court set a securing order of $25,000 bond or cash for both Salvatore Mazzio and Angelo Mazzio and a securing order of $75,000 bond or cash for Michael Mazzio. Each defendant was then was released on insurance company bail bonds.
Securing Order for Salvatore Mazzio
At the appearance on December 10, the People asked that upon the exoneration of Mr. Salvatore Mazzio's monetary bail, he be required to surrender his passport, submit to contact or supervision by the Center for Alternative Sentencing and Employment Services ("CASES"), the designated pretrial contact and supervision agency in New York County, and notify the prosecutor in advance whenever he planned to leave the tri-state area. The People noted that Mr. Mazzio had been charged in a separate case in Queens with grand larceny involving the alleged unauthorized tow of a truck and was alleged to have been involved in bid-rigging and fraud. Mr. Mazzio's attorney, John Rapawy, asserted the Queens case would be dismissed on the next date and that Mr. Mazzio had been present at every court date in the instant case and the Queens matter without incident. Regarding his bail, Mr. Rapawy argued:
He's [the defendant] got no problem with the bail bond ... the conditions [sought by the district attorney] would be more restrictive than the conditions he's out on now. We would consent to his staying out on his current bail conditions. Transcript, pp. 4-5.
He then reiterated that Mr. Mazzio preferred his current bail conditions to the non-monetary conditions sought by the People. The Court indicated its inclination to direct Mr. Mazzio to notify the People if he planned to travel out of the tri-state area and not impose the other conditions the People sought. Mr. Rapawy then said Mr. Mazzio sometimes received towing jobs in the early morning hours which required him to travel out-of-state, to Pennsylvania, for example, and would not be able to provide advance notice of such travel to the People in such circumstances:
Right now if he's with the bail bond agency they might not restrict him in that regard. It's the least restrictive method.... If you think about it now my client is out on a bail bond. If he's allowed to do that conduct anyway, if he's allowed to move freely within the confines of the bail agreement which, Judge, has never been an issue up until today it now creates an additional layer.
It creates a more restrictive condition that needs
to be met. It's not reasonably necessary to ensure my client's appearance in court. It's going to create an issue not just with this defendant. I think it can create an issue with dozens, hundreds of other defendants.
I think it's unreasonable given that we have a track record here of almost two years into the case and there have been no problems. There have been no issues. This could create a situation, Judge, where my client's liberty, his ability to make a living have now been effected in a way that it doesn't have to be, Judge, with this particular condition. Transcript, pp. 11-12.
The Court then determined to temporarily continue Mr. Salvatore Mazzio's monetary bail pending a January 7 adjournment. Mr. Mazzio agreed that he was voluntarily waiving his right to have his bail exonerated under the new law and understood that if he failed to appear in court as directed his bail would be forfeited.
Securing Orders for Angelo Mazzio and Michael Mazzio
Mr Rapawy made a similar application for defendants Angelo Mazzio and Michael Mazzio and both defendants similarly waived their right to have their monetary bail exonerated and said they understood their bail would be forfeited in the event of a non-appearance. Their cases were likewise adjourned to January 7 to make a final determination on their securing orders.
The Temporary Transitional Bail Waiver for Defendant Karen Steininger
Karen Steininger is charged with the Class B felony of Enterprise Corruption as well as Donnelly Act and offering false instrument for filing counts. She is the brother of Defendant Daniel Steininger, who is alleged by the People to be the principal architect of the schemes alleged in these four indictments. Karen Steininger was the president of a tow truck company controlled by her brother and is alleged to have done bookeeping and management for the tow truck companies Daniel Steininger controlled. Her initial monetary bail condition was $100,000 bond or cash. An insurance company bail bond was then posted and she was released. On December 10, her counsel argued that her new securing order should be release on recognizance. The People proposed releasing her and requiring her to notify the People if she wished to travel outside the tri-state area. Her counsel argued that would be "intrusive", outlining a number of personal reasons why Ms. Steininger might want to travel outside the tri-state area with her family. The case was adjourned to January 7, 2020 for the court to consider the issue addressed here and Ms. Steininger agreed in the interim to continue her monetary bail condition and agreed that she would forfeit her bail in the event of a non-appearance.
Transcript, p. 4.
The Temporary Transitional Bail Waiver for Defendant Jaime Bautista
Jaime Bautista is charged with the Class B felony of Enterprise Corruption, Donnelly Act violations, conspiracy, money laundering and the filing of false instruments. Mr. Bautista is Daniel Steininger's brother-in-law. He is alleged to have been the manager and paper-owner of companies Daniel Steininger controlled. He also drove tow trucks. Mr. Bautista's original securing order was set at $400,000 bond or $200,000 cash which was then satisfied with an insurance company bail bond.
On December 10, Mr. Bautista's attorney said Mr. Bautista would agree to continue his current bail condition until January 7, 2020 and then speak to the CASES representative about pretrial supervision or contact, since the CASES representative was engaged in another court part when Mr. Bautista's case was called. Mr. Bautista said he understood his bail would be forfeited if he did not appear in court as directed.
CONCLUSIONS OF LAW
New York's Bail Reform Law
New York's bail reform law enacted comprehensive changes to the rules governing pretrial securing orders. The statute generally requires that courts in every case "select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court." CPL 510.10(1). Where such a "least restrictive alternative" is not a release on recognizance, courts have three options: the imposition of "non-monetary conditions", or, for certain crimes, monetary bail or remand. The statute also divides offenses into two categories: "qualifying offenses" and "non-qualifying offenses". "Qualifying offenses" are those for which bail, or remand if the offense is a felony, may be initially imposed. CPL 510.10(4) ; 530.20 (1). Qualifying offenses include the vast majority of violent felony offenses, most Class A felonies, most sexual offense and terrorism crimes and order of protection violations between members of the same family or household. If a charge is not a "qualifying offense" it is a "non-qualifying offense" for which the only permissible initial securing order other than release on recognizance is the imposition of "non-monetary conditions". Defendants charged with only non-qualifying offenses can also have bail set if they abscond under certain defined criteria or commit certain new crimes while at liberty. CPL 530.60. The defendants here all stand charged with only non-qualifying offenses.
Part JJJ of Chapter 59 of the Laws of 2019.
Under the statute, "non-monetary conditions ... may include, among other conditions reasonable under the circumstances", travel restrictions, contact with a pretrial services agency, prohibitions on the possession of weapons, pretrial services agency supervision or electronic monitoring, all subject to additional statutory restrictions. CPL 500.10(3-a). All of the non-monetary conditions proposed by the People or the court in this case were among the explicit authorized non-monetary conditions outlined in the statute.
This is only a thumbnail sketch of the bail reform law noting provisions directly relevant here. The statute made numerous other significant changes to the rules governing securing orders.
The bail reform law was enacted as part of the SFY 19-20 State Budget in April of 2019. A press release by the Assembly Speaker accompanying the legislation's passage outlined its purpose:
Wealth should not determine whether a person, accused but not convicted of a crime, will be jailed while awaiting trial. The budget reforms New York State's bail system by eliminating cash bail for most misdemeanor and non-violent felony offenses, and substituting release on recognizance or on non-monetary conditions when appropriate.... The bail system continues for higher-level cases, but this law requires judges to consider the financial resources of each defendant, as well as alternative forms of bail, such as secured or unsecured bond.
"SFY 19-20 Budget Includes Critical Criminal Justice Reform Legislation and Funding". Assembly Speaker Carl E. Heastie, April 1, 2019.
The General Ability of Criminal Defendants to Waive Rights
The question here is whether defendants can waive the prohibitions on the imposition of monetary bail which were enacted for their benefit. "[W]hen there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys". People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 (1989), citing Schick v. United States, 195 US 65, 72, 24 S.Ct. 826, 49 L.Ed. 99 (1904) ; see also, People v. Thomas, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, –––– (2019), 2019 N.Y. Slip Op. 08545 at 4. The bail reform law does not explicitly prohibit a waiver of any of its protections.
In accordance with this waiver allowance principle, criminal defendants have been held entitled to waive many categories of rights including those of constitutional dimension. Defendants may waive the right to a trial and plead guilty ( Seaberg ); waive the right to a jury trial and be tried by a judge ( People v. Duchin, 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17 (1963) ); waive the right to a lawyer ( People v. Crampe , 17 N.Y.3d 469, 932 N.Y.S.2d 765, 957 N.E.2d 255 (2011) ); waive the right to be present when prospective jurors are questioned ( People v. Flinn, 22 N.Y.3d 599, 984 N.Y.S.2d 283, 7 N.E.3d 496 (2014) ); waive the right to prosecuted by an indictment (CPL Article 195); waive the right to appeal a conviction or the excessiveness of a sentence ( Seaberg ) and waive the right to assert a double jeopardy defense ( People v. Allen, 86 N.Y.2d 599, 635 N.Y.S.2d 139, 658 N.E.2d 1012 (1995) ). Most such waivers implicate rights far more significant than the transitional bail waivers at issue here and are not statutorily authorized.
Many categories of rights may not be waived unless certain requirements are met. For example, the waiver of a right to a jury trial requires that a written waiver be executed. CPL 320.10. A defendant may not waive the right to counsel, without counsel, after that right has indelibly attached. See, e.g., People v. Harris, 177 A.D.3d 1199, 115 N.Y.S.3d 477 (3rd Dept. 2019). Waivers must also generally be "knowing, voluntary and intelligent". See People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 (2002) (imposing that requirement for a valid waiver of the right to counsel).
Defendants are also not entitled to waive certain protections. As the Court of Appeals explained in Seaberg:
Society has a recognized interest in speedy trials because trial delay may result in the loss of evidence or an accused's inability to respond to criminal charges, thereby compelling innocent persons to plead guilty out of necessity. Because of this societal interest a defendant may not waive such claims. Similarly, a defendant may not waive the
right to challenge the legality of a sentence or his competency to stand trial. These rights are recognized as a matter of fairness to the accused but they also embrace the reality of fairness in the process itself and, therefore, a defendant may not waive them. 74 N.Y.2d at 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 (citations omitted).
Closely related to these waiver rules is the appellate doctrine that an objection need not be preserved and harmless error analysis does not apply to "mode of proceedings" errors made in a trial court. "Mode of proceedings" errors are a "tightly circumscribed class" of "the most fundamental flaws" that "go to the essential validity of the process and be so fundamental that the entire trial is irreparably tainted". People v. Mack, 27 N.Y.3d 534, 540-541, 36 N.Y.S.3d 68, 55 N.E.3d 1041 (2016) (citations and internal quotations omitted). Litigation regarding such errors has been prevalent in recent years regarding the extent to which trial court errors in handling jury notes in accordance with the rules outlined in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) constitute mode of proceedings errors. See, e.g., People v. Morrison, 32 N.Y.3d 951, 84 N.Y.S.3d 819, 109 N.E.3d 1119 (2018) ; People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 (2015).
The Policy Arguments Against Transitional Bail Waivers
There are two valid, related policy arguments against allowing transitional bail waivers. The first is that such waivers would contravene the Legislature's intent to simply prohibit bail for non-qualifying offenses. The second is that such waivers would create a wealth disparity between defendants who could or could not benefit from them. That is, in almost all cases, the only defendants who might opt for conditional bail waivers would be those who were at liberty because they had been able to post bail. Indigent defendants who were completely unable to post or pledge bail would not benefit from transitional bail waivers, except in those rare cases where defendants chose to continue monetary bail conditions which would result in their continued incarceration.
These valid arguments against allowing transitional bail waivers, however, are largely mitigated by a number of contrary considerations. The first is that prohibiting bail waivers would negate a different fundamental tenet of the bail reform law: the least restrictive alternative rule. That is because of the conflict between that rule and the prohibition on monetary bail for non-qualifying offenses. The Least Restrictive Alternative Rule vs. the Prohibition on Monetary Bail
Every securing order under the bail reform law is subject to the least restrictive alternative rule. It is a common misperception, however, that where monetary bail is an available option under the statute, a court which does not order release on recognizance must first consider whether non-monetary conditions should be imposed and then, only if non-monetary conditions are insufficient, proceed to consider monetary bail. The statute nowhere creates such a hierarchy since monetary bail may be a less onerous securing order than non-monetary conditions. See CPL 510.10(4). Numerous examples of such circumstances can be imagined.
A defendant given the choice, for example, of an unsecured surety bond of $10,000 which did not require the posting of any money or, alternatively, travel restrictions and supervision by a pretrial services agency might well see the unsecured surety bond as the less restrictive and preferable option. Even where money would have to be paid under a monetary bond, a defendant might prefer that to the imposition of non-monetary conditions.
Without an ability to waive the right to not have monetary bail imposed, however, defendants charged with non-qualifying offenses where a monetary bail condition was in fact the least restrictive alternative would be prohibited from having that least restrictive alternative imposed on them. That option would only be available for qualifying offenses: crimes the Legislature obviously thought were generally more serious and often more appropriate for more restrictive securing orders, including remand.
That principle is on display here. The tentative choice the Mazzio brothers have expressed is obviously rational. Since they have already paid premiums to bail bond companies and, presumably, intend to appear in court as directed and therefore not risk any of the collateral supporting their bonds, the continuation of their monetary bail will likely not require them to do anything, other than appear in court as directed. On the other hand, the travel notification condition sought by the People would impose an additional liberty burden, albeit a relatively modest one. Given these two options, these defendants may prefer the least restrictive alternative: the continuation of their monetary bail.
Additional Responses to the Policy Argument
The policy arguments against bail waiver are also mitigated by a number of other features of the statute and the cases here. First, the bail reform law didn't establish a public policy which prohibits monetary bail. It eliminated monetary bail in certain circumstances. On the one hand, the statute prohibits monetary bail from initially being imposed, even for some very serious crimes. For example, no narcotics crime, even a Class A-1 felony subject to a determinate sentence of up to 30 years, may have monetary bail imposed with the single exception of the Class A-1 felony of "Operating as a Major Trafficker (PL 220.77). The Class C violent felonies of residential burglary and Robbery in the Second Degree, where that robbery crime is elevated to a second degree level because the robbery is "aided by another", are not eligible for the initial imposition of monetary bail. That is true even if such defendants are charged as "persistent violent felony offenders" subject to mandatory indeterminate sentences of 16 - 25 years to life imprisonment upon conviction.
The proviso that bail cannot be "initially" imposed in these descriptions is provided since bail for non-qualifying offenses can be imposed where a defendant "persistently and willfully failed to appear after notice of scheduled appearances in the case before the court" or commits certain new crimes at liberty, if such circumstances are demonstrated by clear and convincing evidence through an evidentiary hearing if requested. CPL 530.60.
CPL 510.10(4)(d) ; 530.20(1)(b)(iv). Class A-1 felony narcotics crimes are subject to determinate sentence ranges of between 8 and 30 years, with the range depending upon the defendant's criminal history. See PL § 70.71.
CPL 510.10(4)(a) ; 530.20(1)(b)(I).
The definition and sentencing ranges for "persistent violent felony offenders" are provided by PL § 70.08. In exempting residential burglaries and "robbery aided" crimes from the definition of qualifying offenses, the bail reform law did not provide any exception to those exemptions for persistent violent felony offenders.
On the other hand, Class A and Class B misdemeanor sex offenses, and Class A misdemeanor order of protection violation charges concerning a member of the defendant's family or household can have bail initially imposed without monetary limitation, subject to the least restrictive alternative rule. The highest possible sentence for a Class B misdemeanor is a definite sentence of three months.
CPL 510.10(4) ; 530.20(1).
PL § 70.15(2).
Second, the bail reform law requires that monetary bail be imposed upon a defendant's voluntary request in one circumstance: where the defendant requests "nominal" bail, or what is commonly called "dollar bail", in order to receive jail time credit for a case while the defendant is incarcerated on a securing order in a different matter. CPL 510.10(5) ; 530.20(d). The bail reform requires monetary bail to be imposed in such cases for the same reason the defendants seek transitional bail waivers here: to benefit them. As noted supra , moreover, the statute authorizes monetary bail to be imposed upon any defendant charged with a non-qualifying offense who absconds or commits certain new crimes while at liberty under the statute's defined parameters.
As noted supra, the bail reform law was also designed to significantly reduce disparities based on wealth and reduce pretrial incarceration in any case where a court chose to set monetary bail. That is evident in two provisions. First, where monetary bail is imposed under the statute and the court chooses to specify a bail form, the law newly requires that three bail forms be set and that one such form be either an unsecured or partially secured surety bond set by the court. CPL 520.10(2)(b). This requirement allows defendants, in every case where monetary bail is set, to attempt to obtain a bond from a friend, relative or acquaintance without paying a premium to an insurance company. An unsecured surety bond does not require the posting of any money while a partially secured surety bond cannot require the posting of more than 10% of the amount of a bond by a suretor. See CPL 500.10(15) ; (18); (19). These provisions were obviously designed to reduce the number of defendants with bail conditions who would be unable to post bail and would therefore remain incarcerated pending trial.
Second, the statute newly requires that a court imposing monetary bail must consider the defendant's "individual financial circumstances" and their "ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured or partially secured bond". CPL 510.30(1)(f).
Thus, transitional bail waivers would not be engrafted on a statute which simply outlawed a pernicious monetary bail system. It would be incorporated into a system where bail was permissible under numerous circumstances, and where the inequities the Legislature believed had been pervasive under the prior monetary bail system had been reformed. Transitional bail waivers would thus not denigrate a "larger societal value" which would counsel against allowing them even when they clearly benefitted defendants. See People v. Allen, 86 N.Y.2d 599, 603, 635 N.Y.S.2d 139, 658 N.E.2d 1012 (1995). Finally, what is at issue here is not the question of whether bail may be newly imposed after January 1, 2020 for a non-qualifying offense with the defendant's consent. That is not a question which is before this court. The question here is whether a monetary bail condition may be maintained at a defendant's request when it was previously imposed.
It is also evident that none of the considerations the Court of Appeals outlined in Seaberg which prohibit the waiver of certain specified defendant rights are at issue here. Transitional bail waivers would not "result in the loss of evidence or an accused's inability to respond to criminal charges, thereby compelling innocent persons to plead guilty of necessity" as the Court said would occur if speedy trial claims could be waived. They would not implicate "fairness to the accused" or "the reality of fairness in the process" as the Court held would occur if a defendant consented to an illegal sentence or waived the right to have his or her competency to plead guilty assessed.
Appellate courts, rather then trial courts, determine whether an error claimed on appeal fits within the narrow class of "mode of proceedings" errors. This Court, however, does not believe there is a tenable argument that a transitional bail waiver could be defined as a "mode of proceedings" error under the standards outlined by the Court of Appeals.
The Danger That Transitional Bail Waivers May Not be Voluntary
Another objection which can be made to allowing transitional bail waivers is that they may be coercive. That is, a judge intent on forcing a defendant charged with a non-qualifying offense at liberty to continue monetary bail might tell the defendant that if they did not consent to a transitional bail waiver, the court would impose onerous non-monetary conditions like home confinement, travel restrictions, electronic monitoring and supervision by a pretrial services agency, all designed to force the defendant to agree to continue monetary bail. But the fact that it is possible for a defendant to involuntarily waive a right he or she is entitled to is a concern which must be scrutinized in every waiver. It is why waivers must be "knowing, voluntary and intelligent".
An involuntary transitional bail waiver would obviously not result in a defendant's incarceration (since it would presumably be chosen only by a defendant at liberty on bail) and any abuse of such an authority would also be amenable to a number of possible avenues of review. Nor do judges have any interest in coercing defendants to continue monetary bail. The judges charged with implementing new securing orders to comply with the bail reform law are focused on effectuating the intent of the Legislature.
Finally, whatever theoretical concerns might exist about involuntary transitional bail waivers, it is obvious those concerns are not implicated here. The defendants here understand the securing order options which are best for them. They are not being coerced or duped. They are represented by effective attorneys. They are not being offered potentially coercive non-monetary conditions. They are simply being asked to notify the prosecution if they plan to travel outside the tri-state area, a notification which would not impose any restriction on such travel unless the People sought such a new restriction by making a new application to the court. These defendants may simply, rationally and reasonably prefer a less restrictive alternative. The bail reform law mandates their entitlement to that. The Bail Forfeiture Problem
There is finally the practical issue of bail forfeitures. Where a defendant who has posted bail does not appear for a scheduled court date without sufficient excuse, the court must direct that the bail be forfeited. The court may discharge any such forfeiture if the defendant appears before the case's final adjournment. These provisions were not modified by the bail reform law. See CPL 540.10. Transitional bail waivers would call these provisions into question, since a defendant who failed to appear while subject to a transitional bail waiver might argue that the bail could not be forfeited because it had not been lawfully imposed, even if the defendant had agreed to the monetary bail condition.
This is a legitimate concern and should be considered by any court which contemplates a transitional bail waiver. The defendants here, however, in addition to waiving their right to not have bail imposed also waived their right to contest a bail forfeiture in the event of a non-appearance. In this Court's view, just as a defendant may waive the right to not have bail imposed, he or she may also waive the right to contest the legality of a bail forfeiture where that challenge was based on an argument that the bail condition the defendant agreed to was unlawful. It is also important to recognize that regardless of how such an issue might ultimately be resolved after litigation, a defendant at least potentially subject to a bail forfeiture who had agreed to a transitional bail waiver would still have a strong incentive to appear in court as directed.
The Possible Waiver of the "Three Bail Forms" Requirement
In the event any of these defendants seek and the court approves a transitional bail waiver a second question which will arise will be whether any of the defendants would also waive their right to have three bail forms imposed, with one being an unsecured or partially secured surety bond. In this Court's view, the same considerations which allow the waiver of the right to not have monetary bail imposed would also support the view that a defendant could waive the right to have three forms of bail imposed. In any event, this issue would likely be academic for these defendants. Having already paid a premium and not being subject to liberty restrictions other than the obligation to appear in court as directed, it would be unlikely these defendants would seek to have their existing monetary bail exonerated and then seek a new bail condition. The Court will address this issue in each case if it determines to grant a transitional bail waiver at any of the defendants' request.
Conclusion
The issue here illustrates the difference between the general policies written by legislatures and the adjudication of individual cases by our courts. The Legislature has drawn lines based on important public policy principles to significantly reduce unnecessary pretrial incarceration and disparities in criminal justice outcomes based on wealth. But courts do not directly address abstract principals: they adjudicate the cases of the real people before them. As Justice Holmes famously opined in "The Common Law" in articulating a related principle: "the life of the law has not been logic; it has been experience". Courts are grappling every day with the real world challenges of the sweeping changes the Legislature has enacted in our pretrial securing order systems. As we focus on implementing every word of these statutes in accordance with the Legislature's intent, we must also abide by the general principle that every individual defendant is entitled to be subject to the least restrictive securing order which will reasonably assure his or her return to court. For all of those reasons, this Court holds that transitional bail waivers are a lawful securing order condition. With respect to each of these cases, the Court will consider such transitional bail waivers as one securing order option if such waivers are sought by any of these defendants.