Opinion
CRNo.-00748-20
10-08-2020
The PEOPLE of the State of New York, Plaintiff, v. Kenneh ZEOLLI, Defendant.
HON. P. DAVID SOARES, Albany County District Attorney (Cheryl K. Fowler, Esq., of Counsel), Attorney for the People STEPHEN W. HERRICK, Albany County Public defender (Jessica M. Gorman, Esq., of Counsel), Attorney for the Defendant.
HON. P. DAVID SOARES, Albany County District Attorney (Cheryl K. Fowler, Esq., of Counsel), Attorney for the People
STEPHEN W. HERRICK, Albany County Public defender (Jessica M. Gorman, Esq., of Counsel), Attorney for the Defendant.
Eric M. Galarneau, J. On October 22, 2019, this Court granted the joint application of the People and the defense to adjourn the above captioned matter in contemplation of dismissal ("ACOD") (see CPL § 170.55 ). By letter dated July 24, 2020, the People, upon Application of Deputy Chief Assistant District Attorney Cheryl K. Fowler, moved to restore the case to the Court's calendar. The defendant, through his attorney, Assistant Public Defender Jessica Gorman, opposed the application, arguing that it was not timely. On the face of it, the defendant appeared to be correct. However, the Court invited counsel to submit memorandum of law to address the issue of timeliness and whether the ACOD was affected by the various executive orders issued by the Governor since March of 2020. The People responded by letter memorandum of Deputy Chief Assistant District Attorney Fowler dated August 19, 2020, while Assistant Public Defender Gorman filed a letter memorandum on the same date on behalf of the defendant. Having considered the position of both parties, the Court hereby issues the following Decision and Order.
CPL § 170.55 governs adjournments in contemplation of dismissals (ACOD). These adjournments, dispositional in nature, are "without date", and while the People are afforded time within which to move to restore the case to the Court's calendar, that time is not unlimited. In this case, the relevant time period is six months (see CPL § 170.55[2] ). Therefore, under CPL § 170.55[2], the People had until April 22, 2020—or six months from the entry of the ACOD—to move to restore the case to the Court's calendar. Under normal circumstances, inasmuch as the People did not move to open the ACOD until July 24, 2020, their application would have been time-barred.
We are not operating under normal circumstances, however. Since March 2020, the State of New York has been dealing with the consequences of the COVID-19 pandemic. One of the ways in which the state has coped with the crisis is through executive orders issued by the Governor. The Governor's authority for doing so derives from Executive Law § 29-a, which, as amended in March 2020, provides that:
Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster. The Governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances: fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic activity, epidemic, disease outbreak, air contamination, terrorism, cyber event, blight, drought, infestation, explosion, radiological accident, nuclear, chemical, biological, or bacteriological release, water contamination, bridge failure or bridge collapse. Any such directive must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive.
Invoking this authority, the Governor has suspended several provisions of the Criminal Procedure Law. These include the suspension of "any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process of the state". (Executive Order (EO) 202.8, issued March 20, 2020). As the parties note, the Governor continued these suspensions in a series of subsequent Executive Orders, through at least November 3, 2020 (see EO 202.14; 202.28; 202.38; 202.48; 202.55; 202.60 and 202.67). None of the subsequent orders substantially modified the tolling provisions of EO 202.8, with the exception of EO 202.48 and 202.67. As relevant to this case, therefore, at least through EO 202.48, which was effective on July 6, 2020, the time limit for "commencement, filing...of any legal action, notice, [or] motion" under the Criminal Procedure Law remained suspended.
The ACOD statute, which imposes a "specific time limit", appears to come within the ambit of the Governor's orders (see People ex. rel. Nevins v. Brann , 67 Misc. 3d 638, 122 N.Y.S.3d 874 [Sup. Ct. Queens County 2020] ). Of course, from a practical standpoint, even if the People had sought to file an application to restore the ACOD after March 20, 2020, the Court would have rejected the filing pursuant to the order of the Chief Administrative Judge of the State of New York, which indicated, that, "effective (March 20, 2020) and until further order, no papers shall be accepted for filing by ... a court in any matter of a type " not deemed essential (See CAJ Marks AO/78/20, issued Mar. 20, 2020); see Brann , supra). The restoration of ACODs were not deemed essential; thus, the Governor's executive orders would have tolled the ACOD statute.
According to Judge Marks, "essential matters" were limited to arraignments, bail applications, proceedings involving temporary orders of protection, re-sentencings of detained and incarcerated defendants, and "essential sex offender registration act (SORA) matters" (CAJ Marks AO/78/20 eff Mar 20, 2020).
As noted above, these suspensions remained in effect by virtue of the Governor's subsequent executive orders. This includes EO 202.48, which, although it specifically exempted the Criminal Procedure Law from the continuing suspensions of law, did so only to the extent that that the CPL "require[d] a personal appearance" and there was "consent". (See EO 202.48). This caveat obviously excluded the restoration of ACOD's, which requires an application, not a court appearance. Accordingly, under the Governor's executive orders, because CPL § 170.55 did not require a court appearance, it remained suspended up to, and potentially beyond, July 6, 2020. As a result, the People have urged that, under the executive orders, the July 24th application to restore the ACOD would have been timely.
EO 202.48 is very difficult to interpret. In its opening "therefore" clause, the order continues the suspensions set forth in EO 202.8 but makes them subjection to a number of exceptions—one of which involve CPL statutes that require personal appearances and there is consent from the defendant. In other words, if a CPL provision requires a personal appearance, and the defendant consents to it, then that provision is no longer suspended. The EO then goes on to list a number of specific statutes—CPL 30.30, for example—that would remain suspended despite the personal appearance caveat. However, as noted above, an ACOD restoration does not "require" an appearance and, under the "therefore" clause of EO 202.48, would appear to remain suspended.
The defense, however, suggests that the executive orders do not apply to ACODs. Specifically, the defendant points to language in the executive orders that, he claims, limits the scope of the orders to the extent necessary to "prevent, hinder, or delay action necessary to cope with the" pandemic. In the defendant's view, because the suspension of ACODs does nothing to inhibit the action needed to address the pandemic, it would not be covered under the Governor's orders.
The language cited by the defendant is in the prefatory section of the executive orders and is not necessarily binding on what follows. However, his argument does allude to a larger issue with the orders. The prefatory language in these executive orders is lifted directly from the statute that authorizes them which, as noted above, provides that the governor may suspend statutes to the extent that compliance with them would impair action necessary to cope with the disaster in question. (Exec. L § 29-a). Such a conferral of power obviously implicates separation of powers concerns, as Exec. Law § 29-a grants the Governor broad latitude in suspending laws that may affect other branches of government (see Bourquin v. Cuomo , 85 N.Y.2d 781, 628 N.Y.S.2d 618, 652 N.E.2d 171 (1995) ; Soares v. Carter, 25 N.Y.3d 1011, 10 N.Y.S.3d 175, 32 N.E.3d 390 (2015). That is true in this case, where the suspended law in question ( CPL § 170.55 ) affects the ability of courts to control their own calendar (See People v. Johnston, 67 Misc. 3d 267, 121 N.Y.S.3d 836 [Cohoes City Ct. 2020] ).
However, the Governor's authority to issue these orders does not exist in a vacuum. It is a creature of statute, and, as such, is confined to the parameters established by the statute. That being the case, it is clear that Exec. Law. § 29-a imposed several restrictions on the exercise of the Governor's authority. These include, as pertinent here, the requirement that any suspension order "shall specify the statute...to be suspended and the terms and conditions of the suspension". (See Exec. L 29-a(2)(c)). As pertinent here, Exec. L. § 29-a[2] provides:
2. Suspensions pursuant to subdivision one of this section shall be subject to the following standards and limits, which shall apply to any directive where specifically indicated:
..
b. no suspension or directive shall be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid the disaster effort;
c. any such suspension order shall specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension;
...
d. any such suspension order or directive shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary;
As the statute makes clear, specificity is one of the lynchpins to the legislative grant of executive authority (see Exec. L. § 29-a[2][c] ). To underscore this point, the statute also mandates that the suspension provide for the "minimum deviation from the requirements of the statute consistent with the goals of the disaster action deemed necessary". In other words, Exec. Law § 29-a requires that the suspension of law be narrowly tailored to achieve the action necessary to avert the crisis in question.
It could be argued, however, that the executive orders, at least as applied in this case, elude these specificity requirements. After all, the suspension of the "criminal procedure law" identifies not a specific statute —as Exec. Law § 29-a[2][c] requires—but, potentially, an entire chapter of state law. It has also persisted for over six months. That is neither specific, nor is it a "minimum" deviation from the affected statute. The criminal procedure law contains hundreds of individual laws, some of which, to be sure, are obviously covered by the executive orders, such as the laws dealing with statutes of limitation, or the time within which the People must be ready for trial (see CPL §§ 30.10, 30.20 and 30.30 ). However, whether the orders apply to other statutes in the CPL often requires a more nuanced analysis, forcing courts to consider facts and circumstances extrinsic to the order itself, which necessarily entails a drawing of inferences that is antithetical to the precision and predictability required for the just enforcement of laws. This uncertainty also runs the risk that the Governor's orders will be inconsistently applied—a prospect that the legislature undoubtedly sought to avoid by requiring that the executive orders retain a degree of specificity. Indeed, it is not hard to imagine disagreements among courts as to which statutes are covered by the executive orders, and which or not—with the result being that some laws would be suspended in one jurisdiction, but not in another (see People v. Bright , 71 N.Y.2d 376, 382[, 526 N.Y.S.2d 66, 520 N.E.2d 1355 1988] (statutes must not permit arbitrary or discriminatory enforcement); see People v. Stephens , 28 N.Y.3d 307, 314, 44 N.Y.S.3d 352, 66 N.E.3d 1070 [2016] ).
The Court is aware of contrary court decisions, rendered at the outset of the pandemic, which held that EO 202.8 was sufficiently specific. (See People ex. rel. Nevins v. Brann , 67 Misc. 3d 638, 122 N.Y.S.3d 874 [Sup. Ct. Queens County 2020] ; People ex. rel. Hamilton v. Brann , 2020 N.Y. Slip Op. 50392 [U], 2020 WL 1695541 [Sup. Ct. Bronx County, April 2, 2020] ). The earlier decisions are undoubtedly well reasoned. Given the onset of the pandemic, rapid and unprecedented action was necessary; and, under the circumstances, the executive orders were as specific as they could reasonably be. Thus, EO 202.8, which initially suspended enforcement of the Criminal Procedure Law, may have arguably been specific in March 2020, given the onset and unpredictability of the pandemic. In addition, it coincided with, and incorporated by reference, the Administrative Order of the Chief Administrative Judge, which limited court appearances to "essential matters"—meaning that the court system would not address matters not deemed essential (see People ex. rel. Nevins v. Brann , supra at 645, 122 N.Y.S.3d 874 ). Given the dire circumstances of March 2020, this Court will not second guess the "specificity" of an order hashed out in the throes of a crisis.
That said, specificity is not an absolute term; often, it is a function of the time and the crisis. Thus, what was "specific" in March 2020 was not "specific" in July, let alone today. That is not because the crisis has ended —the disease is still very much with us, and may be with us for some time—but because our state has taken measures to adapt to it. This is evidenced by the ways in which the courts have evolved new practices and protocols to reduce the risk of transmission, including the use of virtual appearances where necessary. This, in turn, has allowed courts to open up and allow for more personal appearances —thereby abating one of the primary justifications for the suspension of criminal procedure laws, which was the need to eliminate traffic in and around courthouses (see People ex.rel. Nevins v. Brann , at 646, 122 N.Y.S.3d 874 ). In other words, at the outset of the crisis, courts had no option but to drastically reduce operations; now, with the appropriate protocols in place, courts can, and have, operated in the new and ongoing reality of the pandemic.
As the need for draconian measures has ebbed, concerns about the relative lack of specificity in the executive orders have returned to the forefront. These concerns cannot be dismissed as some isolated concept, devoid of statutory context. The reason that the legislature requires specificity in the executive orders is so that it correlates with the other restrictions imposed on the Governor's authority, such as the requirement of necessity--i.e., that "no suspension or directive be made which is not in the interest of the health or welfare of the public and which is not reasonably necessary to aid in the disaster effort" (See Exec. L. 29-a(2)(b)). The current regimen of executive orders related to the Criminal Procedure Law does not comport with these restrictions because the statutes in question are often insufficiently articulated. This lends itself to over-inclusivity—suggesting that, unless specifically exempted, a particular CPL statute would be covered by the letter of an executive order even if it does nothing to advance its aims. In fact, the surest way for determining whether an EO had applied to a particular statute is when a successor EO exempts the statute from future coverage. This happened, for example, with CPL § 30.30, which was specifically excluded from continuing suspension by EO 202.67, issued on October 5, 2020. However, it is not enough to advise the public what laws were suspended after the suspension has been lifted. Specificity in hindsight is not specificity at all.
For example, EO 202.60 specifically revived CPL § 170.70, which involves the release of a defendant upon failure of a prosecutor to properly convert a misdemeanor complaint to an information. The statute, however, had never been mentioned in any of the previous EO's, but was presumably covered under the broad language cited in EO 202.8.
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These are not idle concerns. Whenever laws are suspended, rights are ignored. And while courts grapple with these issues, justice is delayed to victims, and people accused of crime languish in jails. This is true even with ACODs, as the executive orders prolong the period within which the specter of criminal prosecution will hang over the heads of those accused of wrongdoing. That is why reasonable precision is needed in any executive order suspending the operation of laws, especially our criminal laws. Indeed, the ambiguity in these orders raises problems of vagueness (see, eg., People v. Golb , 23 N.Y.3d 455, 991 N.Y.S.2d 792, 15 N.E.3d 805 [2014] ; People v. Bright , 71 N.Y.2d 376, 526 N.Y.S.2d 66, 520 N.E.2d 1355 [1988] ), and if a statute, which creates and adjusts the rights of citizens, can be struck down as vague, then so too can an order purporting to suspend a statute, which often has a similar substantive impact on the allocation of the rights of citizens in a free society. (See People v. Bright , 71 N.Y.2d 376, 526 N.Y.S.2d 66, 520 N.E.2d 1355 [1988] (striking down loitering statute as unconstitutionally vague); see also Connally v. General Contr. Co. , 269 U.S. 385, 389, 46 S.Ct. 126, 70 L.Ed. 322 [1926] ).
In other words, at some point, the flexibility borne of necessity must yield to the precision required of law. In this regard, it is worth noting that, during earlier times of crisis in this state's history, the executive orders issued by the Governor were more specific in identifying the affected statutes than the executive orders in the current crisis (see People ex. rel. Nevins v. Brann , at 648, 122 N.Y.S.3d 874 ). And while these earlier orders were issued in response to crises that were more confined in scope and duration than the COVID-19 pandemic, and therefore would have offered limited insight on dealing with the burgeoning crisis of March and April 2020, that is no longer the case. As noted, New York's courts have acclimated themselves to the "new normal" of COVID-19 --and with the normalization of court services comes the need to insist on stricter adherence to the restrictions imposed in the Executive Law.
Bearing this in mind, the Court agrees with the defendant that it must interpret the executive orders in accordance with the restrictions of Exec. L. § 29-a. An "act of the legislature is the voice of the People speaking through their representatives" (see New York State Bankers Assoc., Inc., at 10, qtg., Matter of Sherrill v. O'Brien , 188 N.Y. 185, 199, 81 N.E. 124 ) and, inasmuch as the legislature has defined the conditions for the issuance of disaster oriented executive orders under Executive Law § 29-a, its will must be respected. Here, the executive orders, as applied to ACOD's, must therefore be read so as to comply with the specificity requirements set forth by the legislature in section 29-a of the Executive Law (see People v. Stephens , supra at p. 312, 66 N.E.3d 1070 (statutes should be construed so as to avoid constitutional issues if such a construction is possible)).
Accordingly, the Court determines that the executive orders, starting with EO 202.8, were reasonable under the circumstances during the onset of the pandemic (see People ex. rel. Nevins v. Brann , 67 Misc. 3d 638, 122 N.Y.S.3d 874 [Sup. Ct. Queens County 2020] ; People ex. rel. Hamilton v. Brann , 2020 N.Y. Slip Op. 50392 [U], 2020 WL 1695541 [Sup. Ct. Bronx County, April 2, 2020] ). This, as noted above, was a time of crisis, with little time for combing through law books to identify individual statutes that needed to be suspended in order to cope with the pandemic. At that time, broad strokes were necessary (See People ex. rel. Hamilton v. Brann , 2020 N.Y. Slip Op. 50392 [U], 2020 WL 1695541 [Sup. Ct. Bronx County, April 2, 2020] ). However, much of that changed by July 6th --the date of EO 202.48. Since then, courts in this district have become more operational. Grand Juries have resumed in many counties, as have pretrial hearings and other court appearances, and it is hoped that jury trials will soon follow. If normal court operations can occur, albeit adjusted to the reality of COVID-19, there is no reason why a statute limiting the time within which the People must move to restore an ACOD to the Court's calendar should remain suspended. Indeed, continuing to suspend ACODs in these circumstances would not qualify as the kind of "minimum deviation from the requirements of the statute " contemplated by Exec. Law. § 29-a. Therefore, the Court holds and determines that the governor's executive orders, since July 6, 2020 (the date of EO 202.48), do not pertain to ACOD's.
The Court acknowledges that its selection of July 6, 2020 as the date when the executive orders stopped pertaining to ACOD's seems arbitrary. However, as noted above, there is a sound basis for selecting this date. Further, the Court is not picking a date so much as it is determining that, after that date, there is less justification for relaxing the restrictions imposed by Exec. Law § 29-a. In other words, the selection of the date is a by-product of the judicial interpretation of a statute, which leads to the conclusion that, as of July 6, 2020, with courts having had adjusted to the reality of the pandemic, the executive orders could no longer be considered sufficiently "specific" as it relates to CPL § 170.55. Even with that said, the fact that a court's interpretation can be questioned as arbitrary reinforces the need for greater specificity in the executive orders. When judicial interpretation can be mistaken for legislating, it erodes confidence in our courts. Greater specificity is the remedy needed here, as this would promote confidence in our laws, and in the ability of our state to administer justice fairly, even in the midst of a pandemic.
That leaves one final issue. While it is true that the six-month period under CPL § 170.55 was suspended from March 20, 2020 through July 6, 2020, that still left the People with thirty-two days to move to restore the case to the Court's calendar. Thus, the People's application of July 24, 2020 remains timely. Of course, the suspension only affords the People additional time to make an application to restore the ACOD. The final decision to do so rests with the Court, which "may", but is not required, to restore the case to its calendar, and whose discretion is tempered by the requirement that it make a finding that to "restore the case to the calendar" be based "upon a determination that dismissal of the accusatory instruments would not be in the furtherance of justice" (see CPL § 170.55 ). The Court has not had the opportunity to make that statutorily imposed requirement, which would involve a consideration of the factors set forth in CPL § 170.40. Nor, aside from the People's application, does the Court have all the facts necessary to make the determination. Accordingly, the matter will be scheduled to hear arguments of counsel as to why the above captioned case should be restored to this Court's calendar. At that appearance, counsel should be prepared to argue the factors set forth in CPL § 170.40.
Finally, the Court emphasizes that its decision is not intended to denigrate either the severity of the crises or the efforts of those who have striven to contain it. Theirs was, and is, an unenviable task, which should not be questioned lightly. There are, however, other concerns that must also be acknowledged, including the rights of citizens to know what laws are, and are not, in effect. This is a right essential to all people in a free society, who, knowing what is permitted and what is proscribed, can go on with their lives, adjusting their actions and expectations accordingly. Colloquially, this would be referred to the right of normalcy, and, while that right cannot always be perfectly guaranteed, it is a right that we must do our utmost to respect, even as we labor in the shadow of a pandemic.
The foregoing shall constitute the decision and order of the Court.
So ordered.