County Court, Monroe County, May 6, 2024

David Stern, Rochester, for defendant.

Sandra Doorley, District Attorney, Rochester (Armando Benitez of counsel), for the People.

Defendant moves pursuant to Criminal Procedure Law § 530.30 (1), for an order releasing him on his own recognizance. On March 8, 2024, the Greece Town Court (Crowder, J.) remanded the defendant to the custody of the Monroe County Sheriff without bail, pursuant to CPL 530.20 (1) (b), on charges of criminal mischief in the third degree, which is a non-qualifying felony offense.

Applications pursuant to CPL 530.30 (1), commonly referred to in Monroe County as a "County Court Part 1 application" or "bail application," allow defendants to ask a superior court judge to review and alter a securing order issued by a local criminal court when the local court:

"(a) Lacks authority to issue such an order, pursuant to the relevant provisions of section 530.20 of this article; or

"(b) Has denied an application for recognizance, release under non-monetary conditions or bail; or

"(c) Has fixed bail, where authorized, which is excessive; or

"(d) Has set a securing order of release under non-monetary conditions which are more restrictive than [*2]necessary to reasonably assure the defendant's return to court" (CPL 530.30 [1]).

At arraignment, defendant argued for release on his own recognizance or release with nonmonetary conditions. The People argued that the court could not release the defendant because he has two or more prior felony convictions and is now charged with a felony. There were no other circumstances to elevate this to a qualifying offense. The Greece Town Court found that it could "not order recognizance or bail when . . . the defendant has two previous felony convictions" (CPL 530.20 [2] [a] [ii]).

Defendant, now in custody and held without bail for a non-qualifying offense, brings an application for this court to review the lower court's decision to remand him without bail. The parties agree that CPL 510.10 (3) mandates that the defendant be released on recognizance or nonmonetary conditions because he is not charged with a qualifying offense. For the reasons{**84 Misc 3d at 274} that follow, the court finds that jurisdiction exists for a bail application only under CPL 530.30 (1) (b).

At the bail application on Friday, March 8, 2024, this court issued an oral decision on the record releasing the defendant on his own recognizance because he was not charged with a qualifying offense and therefore his release is mandated by CPL 510.10 (3). This written decision follows to clarify and resolve the conflict in statutory language that leads to the anomalous result in this and other similar cases.

The conflict arises in cases, like this one and many others, where a defendant is alleged to have two prior felony convictions but is not charged with a qualifying offense. The arraignment in local criminal court is governed by Criminal Procedure Law § 530.20. On one hand, the clear language of CPL 530.20 (2) (a) (ii) states that "[a] city court, a town court or a village court may not order recognizance or bail when . . . the defendant [charged by felony complaint] has two previous felony convictions" (emphasis added). On the other hand, the clear language of CPL 530.20 (1) (a) states that, for non-qualifying offenses, "the court shall release the principal pending trial on the principal's own recognizance or release the principal pending trial under non-monetary conditions, the determination for which shall be made in accordance with [CPL 510.10 (1)]" (emphasis added).

In 2019, the New York State Legislature enacted, and the Governor signed into law, a number of statutory changes, collectively known as "bail reform." CPL 530.20 (1) (a) is one of the bail reform statutes of 2019 that went into effect January 1, 2020. Notably, none of the bail reform statutes addressed the conflict between CPL 530.20 (1) (a) and 530.20 (2) (a) (ii).

Therefore, since January 1, 2020, a local criminal court judge arraigning a double predicate felon charged with a non-qualifying felony offense is confronted with one statute that says that they must hold the defendant without bail (CPL 530.20 [2] [a] [ii]) and another statute that says that they must release a defendant if they are not charged with a qualifying offense (CPL 530.20 [1] [a]).

This exact conflict was considered and decided in People ex rel. Bradley v Baxter (79 Misc 3d 988 [Sup Ct, Monroe County 2023]). That case originated as a CPLR article 78 proceeding at the Appellate Division, Fourth Department seeking a writ of habeas corpus on the ground that petitioner's pretrial detention for a non-qualifying felony was prohibited. However, after{**84 Misc 3d at 275} the petitioner was released, the Appellate Division found that the exception to the mootness doctrine applied and converted the matter to a declaratory judgment action and transferred the matter to the Supreme Court, Monroe County.

In Bradley, the Supreme Court thoroughly and thoughtfully addressed the conflicting [*3]statutes, the principles of statutory interpretation, and the legislative history of bail reform in making its declaratory judgment. The Supreme Court concluded that "the double predicate rule [CPL 530.20 (2) (a) (ii)] must be interpreted to apply only to qualifying offenses" (id. at 1003). I agree.

I find Bradley to be persuasive in my analysis of the legislative intent behind the enaction of bail reform. This analysis also aligns with the finding of the Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge of the Courts of the State of New York that examined the double predicate statute's original legislative intent. That report states that the "Legislature never intended that these courts be stripped of the jurisdiction to set bail unless a defendant[']s prior felony convictions could be used for life imprisonment sentences" (2022 Rep of Advisory Comm on Crim Law & Pro to Chief Admin Judge of Cts of St of NY at 156-157). Eligibility for sentencing as a persistent felony offender makes an offense "qualifying" under CPL 510.10 (4) (s). Therefore, the Advisory Committee on Criminal Law and Procedure's detailed finding regarding the legislative intent and the ambiguity in CPL 530.20 (2) would also resolve the conflict between the provisions in the same way as the Supreme Court found in Bradley.

The only indication of a resolution of the conflict in the text of the statute appears in CPL 530.20 (1) (b) where the Legislature—in reference to qualifying offenses—specifically included the language that

"the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, order non-monetary conditions in conjunction with fixing bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff" (emphasis added).

The language of "unless otherwise prohibited by law" regarding qualifying offenses is conspicuously absent from {**84 Misc 3d at 276}CPL 530.20 (1) (a) that deals with non-qualifying offenses. I find that this conspicuous absence of that provision for non-qualifying was a choice by the Legislature that prohibitions from release such as the double predicate rule should not apply to non-qualifying offenses, which is the same distinction that the Legislature made throughout the rest of the statute.

In evaluating the conflict between the two statutes, I also consider the practical implications of resolving the conflict.

To interpret CPL 530.20 (2) (a) as overriding CPL 530.20 (1) (a) would mean that a defendant charged with a non-qualifying offense who has two or more prior felony convictions when arraigned in a lower court is required to be remanded to the custody of the sheriff in the lower court, but then on a bail application to superior court pursuant to CPL 530.30 (1) would require the superior court to release the defendant either on their own recognizance or under nonmonetary conditions.

A process that requires a lower court to hold and a superior court to release creates an absurd lack of judicial economy and cannot have been the intent of the Legislature when enacting bail reform. Therefore, the public policy of judicial economy and the interest of justice both argue in favor of resolving this issue by finding that the "double predicate rule" applies only to defendants charged with qualifying offenses.

For all these reasons, the court finds that lower courts have the jurisdiction, authority, and discretion to release on recognizance or under nonmonetary conditions when a defendant is charged by felony complaint with a non-qualifying offense and has two prior felony convictions.

This court expressly concurs with the reasoning and adopts the rulings of the New York State [*4]Supreme Court Justices in People ex rel. Bradley v Baxter (79 Misc 3d 988 [Sup Ct, Monroe County 2023]) and Parker v Hilton (2024 NY Slip Op 32652[U] [Sup Ct, Oswego County 2024]), and the court has considered and declines to follow People v Arroyo (79 Misc 3d 1213[A], 2023 NY Slip Op 50612[U] [Rochester City Ct 2023]).

Accordingly, it is ordered that the defendant's application is granted pursuant to CPL 530.30 (1) (b).