Defendant moves for a hearing, seeking modification of the Temporary Order of Protection (TOP) issued by this court (Rice, J.) on April 25, 2012 arguing that said TOP has resulted in the deprivation of the defendant's property rights as guaranteed under the United States Constitution, 5th and 14th Amendments, and New York Constitution, article 1, § 6. Defendant argues that due process concerns require an evidentiary hearing on the merits of the TOP. The People oppose the motion arguing that due process does not require an evidentiary hearing and the defendant has already been afforded substantial due process.

Defendant stands charged with arson in the fourth degree, a violation of New York Penal Law �150.05 (1). The pertinent facts are as follows:

On April 4, 2012, at approximately 8:38 p.m. the New Rochelle Police and Fire Departments responded to 730 Pelham Road, New Rochelle, New York, a 60-unit residential apartment building, in response to resident complaints of smoke odor. Shortly thereafter, the police arrived at defendant's residence, apartment 6F. After an investigation, defendant was [*2]charged with arson in the fourth degree.

Defendant initially appeared with counsel on April 25, 2012 and was arraigned on the charges. At the arraignment, the People requested a TOP be issued in favor of the building's residents to protect against other potential acts of arson during the pendency of the case. After hearing lengthy arguments from both sides, the Court (Rice, J.), issued the TOP with a full stay-away from the premises. The case was further adjourned to May 24, 2012 for all purposes, at defendant's request.

Defendant appeared with counsel on May 24, 2012 and again asked the Court to modify the TOP. After listening to lengthy arguments from both sides, counsel's request was denied (Rice, J.). The case was adjourned to June 12, 2012 for all purposes, at defendant's request.

Defendant appeared with counsel on June 12, 2012 and once again, requested that the Court modify the TOP to permit defendant to reside in her apartment within the building, pending resolution of her case. After hearing extensive arguments from counsel on both sides, the Court (Rice, J.) denied counsel's request to modify. Defendant scheduled a felony hearing on July 27, 2012.

On July 27, 2012, defendant appeared with counsel and the People indicated that they would not proceed with a felony hearing but would present the matter directly to the Grand Jury. Once again, defendant argued for modification of the TOP to permit defendant to return to her apartment. Afteranother extensive argument by defense counsel, the Court (Carbone, J) declined to modify the TOP. Subsequently, defendant filed the instant motion on July 27, 2012 seeking an evidentiary hearing.

A lease is a valuable property right and this case concerns the deprivation of that right. People v Garland, 69 NY2d 144 (1987). As a threshold question, the Court determines that CPL � 530.13 bears significantly on both fundamental liberty and property interests; thus calling for a due process analysis.

The first issue is to determine what type of due process is due to defendant. Legislative acts enjoy a presumption of legitimacy and the challenger thereto must establish the unconstitutionality of the statute beyond a reasonable doubt.People v Koertge, 182 Misc 2d 183 (1998). The TOP in question was issued pursuant to CPL.� 530.13, protection of victims of crimes, other than family offenses. CPL � 530.13 provides, in pertinent part, that a court may issue temporary orders of protection "for good cause shown . . . in conjunction with any securing order committing the defendant to the custody of the sheriff or as a condition of any order of recognizance or bail . . ." during the pendency of a criminal proceeding.

A review of the legislative intent of CPL � 530.13 evidences the legislature's desire to amend the CPL to expand protection already afforded to family members who are victims or witnesses of crime, to encompass victims or witnesses other than family members, in order to protect against victim and witness intimidation. The statute survives a strict scrutiny analysis insofar as the legislature has articulated a compelling interest in protecting victims and witnesses of crime during the pendency of the criminal proceeding.

Turning to a procedural due process analysis, looking at the case before us,

"Here, if governmental action or statute impacts citizens as a function of the way that government is expected to act, then only the manner in which the government is exercising its lawful duty will be analyzed. To satisfy constitutional requirements, the [*3]statute or government action must have a real and substantial relation to the subject to be obtained and the methods to obtain that subject must not be unreasonable, arbitrary or capricious." Koertge, 182 Misc 2d at 186, citing Nebbia v New York, 291 US 502 (1934).

The basic thrust of due process is notice and an opportunity to be heard. Matthews v Eldridge, 424 US 319 (1976). Due process does not require an evidentiary hearing in every conceivable case of governmental impairment of a private interest. Koertge, 182 Misc 2d at 189; USCA Const. Amends. 5, 14; McKinney's Const. Art. 1, �6.

In the case at bar, the TOP was issued at the arraignment where the defendant was represented by counsel. At arraignment, pursuant to a CPL �530.10 bail hearing, bail was set and defendant has a statutory right to

"review the legality of that bail and necessarily the issuance of the temporary order of protection which is a condition of that bail in a superior court pursuant to CPL 530.30. At such a hearing, defendant is entitled to present evidence and the court may, in its discretion order an evidentiary hearing." Koertge,182 Misc 2d at 189.

Here, the request for modification of the TOP was made at arraignment and repeated by defense counsel who proffered information as an officer of the court at arraignment and on every subsequent adjournment. The statute does provide an opportunity to be heard, but a full evidentiary hearing is at the discretion of the arraignment court.

"A fundamental principle of the law governing securing order is that a judge may not review a determination of bail or recognizance made by a judge of coordinate jurisdiction nunc pro tunc, and may only modify such a determination prospectively on the basis of new facts adduced." People v Forman, 145 Misc 2d 115 (1989)(emphasis added). Defendant offers no new facts that would trigger the necessary change in circumstance to review the initial determination of bail and bail conditions.

Accordingly, defendant's motion is denied.

The foregoing constitutes the Conclusions of Law and Decision and Order of the Court.

Dated: August 13, 2012

New Rochelle, New York

Hon. Susan I. KettnerCity Court Judge