Opinion
1863/2020
02-24-2021
The PEOPLE of the State of New York, v. Frederck WATSON, Defendant.
ADA Melissa Carro, NY County DA's Office Anne Dean, Neighborhood Defender Service of Harlem
ADA Melissa Carro, NY County DA's Office
Anne Dean, Neighborhood Defender Service of Harlem
April A. Newbauer, J. In this bail application, the defendant seeks to lower the percentage of the partially secured bond amount set at criminal court arraignment from ten percent as that amount of cash will not enable the defendant's family to post a bond. For the reasons stated below, the application is granted.
Defendant Frederick Watson was originally charged with attempted murder, a qualifying offense ( CPL § 520.10(4) ), in connection with an incident on October 15, 2020 in which Watson allegedly shot an individual in the leg as he was running away. Pursuant to CPL § 530.20(1)(b), the arraignment court set bail at $25,000 cash, $100,000 insurance company bond and $75,000 partially secured bond with a ten percent surety. A grand jury subsequently indicted Watson for that offense.
At the supreme court arraignment, the defense has sought to lower the percentage deposit or otherwise change bail conditions to facilitate Watson's release. The defendant is 63 years old and has no felony or warrant history. He suffers from a chronic condition that makes him at high risk for severe complications from Covid, a factor to be considered in determining bail conditions. See People v. Garcia, 70 Misc. 3d 206, 133 N.Y.S.3d 208 (Sup. Ct. N.Y. Co. 2020). Further, he is eligible for electronic monitoring should he be released.
Under the 2019 bail reforms, a court must set either an unsecured or a partially secured surety bond as one of at least three forms of bail. CPL§ 520.10(2)(b). A ‘partially secured bail bond’ is defined as a bail bond secured only by a deposit of a sum of money not exceeding ten percent of the amount of the undertaking. CPL § 500.10(18). A reduction in the percentage is not a revision that would require a change in legal circumstances unless a prior court of concurrent jurisdiction had conducted a meaningful inquiry to set the percentage. See People v. Mohammed, 171 Misc. 2d 130,138, 653 N.Y.S.2d 492 (Sup. Ct. Kings Co. 1996) (Record must indicate that court making securing order complied with CPL 510.30 ). If a court does not consider "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." CPL § 510.30(1)(f), then the bail determination is not complete. The overarching purpose of the new bail statute is to adopt the least restrictive means to insure a defendant's return to court. To do so, a court setting bail would need to consider a proposed obligor's liquid assets versus other collateral and assets that make up the bond. A criminal court arraignment part is ill-equipped to make this determination. The sheer volume of arraignments assigned to any judge, the dearth of information available at the complaint stage to the defendant's attorney, and the compressed nature of arraignment proceedings make it highly unlikely that most judges are in a position to evaluate potential obligors and their financial circumstances so to set an appropriate individualized percentage for a partially secured bond. A considered view of financial circumstances is more within the capability of the comparatively less burdened superior court. Cf. People v. Sidell, 37 Misc. 3d 1213(A), 964 N.Y.S.2d 62(Crim.Ct., Qns. Co. 2012).
Since the revised bail statute became effective, arraignment courts have generally chosen to order partially secured bonds at the highest percentage the statute allows in order to comply with the new statute, rather than unsecured bonds or partially secured bonds with any lower percentage. This phenomenon appears to be a reflexive approach to compliance with the new requirement. Perhaps it is a function of the limitations on the arraignment court's ability to engage in considered decision making, as noted above, but perhaps other factors are also at play. Another increasingly common practice is for the arraignment court to mandate that multiple obligors sign a partially secure bond, without taking into account the personal circumstances of any potential obligor. These developments may signify courts’ reluctance to ‘let go’ of the prior bail laws with which they were familiar and comfortable and acknowledge the framework and perspective inherent in the 2019 bail laws. It is thus incumbent on a reviewing court to scrutinize the original reasons for the bail conditions and circumstances under which an arraignment court set a partially secured bond at ten percent.
Changing the terms of a partially secured bail bond is not synonymous with approving the bond. A court considering a bail bond proffer retains broad latitude to consider the background, character and reputation of any person or persons who attempt to indemnify a bond. People ex rel. Prieston v. Nassau County Sheriff's Dept., 34 N.Y.3d 177, 114 N.Y.S.3d 275, 137 N.E.3d 1100 (2019). With a partially secured bond at any percentage, the court has discretion to determine whether an individual obligor's posting provides sufficient incentive for the defendant to return to court. The court's inquiry is more than a consideration of the amount of cash deposited, but also the obligor's ability to fulfill the terms of the bond and the relationship of the obligor to the defendant. Courts view with favor obligors whose liquid assets may be limited, but whose sway over the defendant may be great. See People v. Robinson, 69 Misc. 3d 553, 131 N.Y.S.3d 810 (Sup.Ct. Bx. Co. 2019) (when bail posted by family or close friends, defendant motivated by loyalty to return to court).
In this case, the defendant's application to change the bail conditions was made at the superior court arraignment, initiating a de novo assessment. See CPL §§ 10.20 ; 530.40. The defense provided additional information about Watson's background and immediate family, including a domestic partner and a sister who is employed as a health care worker but unable to meet the ten percent cash threshold, or even a five percent threshold for the partially secured bond. After a hearing, the defense application is granted to the extent that percentage necessary to partially secure the bond is lowered to two percent coupled with electronic monitoring. Other conditions of bail remain in place. This constitutes the decision and order of the court.