This matter is before the Court for a determination of whether Defendant can show, by a preponderance of the evidence, that funds to pay for a bail bond fee, and any collateral for the bond, are from legitimate sources, are not the product of illicit or illegal activity, and are consistent with public policy as required by CPL §520.30(1).

Defendant is charged, by Felony Complaints, with the crimes of CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE, CRIMINAL POSSESSION OF MARIHUANA IN THE SECOND DEGREE, CRIMINAL MISCHIEF IN THE THIRD DEGREE, CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE FIFTH DEGREE, and CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SEVENTH DEGREE.^[FN1]

The charges stem from allegations that Defendant, acting in concert and together with [*2]DAVID VELAZQUEZ,^[FN2] sold a substantial quantity of the narcotic drug heroin, at the Harris hospital in the County of Sullivan, on or about September 25, 2015. Upon his arrest on that charge, Defendant was found to be in possession of a quantity of cocaine and heroin, according to the charges. Following his arrest, Defendant caused damage to the State Police barracks in Liberty, New York, according to the charges. The next day, upon execution of a search warrant, two or more pounds of marihuana, together with $25,000 cash, were seized from Defendant's residence, according to the charges and the representations of the District Attorney.

Following a bail hearing, this Court set bail in the amount of $100,000.00 cash, or $100,000.00 insurance company bond, and determined that a bail source hearing be conducted before any posting of bail be accepted, based upon the nature of the charges and allegations at issue in this case. Thereafter, the Court conducted a bail source hearing on or about March 16, 2016. At the source hearing, Defendant called several witnesses to establish legitimate sources.

The Court accepts and credits the testimony of the proprietor of Binder Bail Bonds, Harris Binder, as such testimony indicated that a premium of $6,260.00 was required in connection with this bond, as well as that a house trailer, valued at $15,000.00 by the bondsman and the defendant, was accepted as collateral in connection with the $100,000.00 bond.

Regarding the payment of the bond premium, Carmen Lysiak testified that she is the sister of Defendant, and works as a nurse at the office of a local pediatrician in Monticello; she testified that she has been so employed for one year and three months. Lysiak indicated that she contributed $2,000.00, consisting of a bank account she holds for her minor child, toward the premium. She further indicated that her husband, a taxi driver, contributed $1,000.00 from a joint bank account toward this premium. Alternatively, Lysiak testified that the source of this $3,000.00 was a tax return. This Court finds this testimony to be credible, although the People argue it is inconsistent, particularly in that Lysiak testified that the money presented as premium was sourced from savings and employment, but also that the money was sourced from a tax return. Indeed, there were no bank account records submitted in connection with this testimony to contradict the testimony regarding any IRS deposits.

Anthony Franco, defendant's brother, testified that he is employed by the USDA and contributed $2,260.00 to repay Dawn Griffin for the contribution toward bail offered by Griffin.

Dawn Griffin, the mother of Defendant's child, who testified that she is no longer romantically or otherwise involved with Defendant, testified that she was approached by family members of Defendant on his behalf, and contributed $2,260.00 toward the bail premium, but could not afford to do so, and was eventually repaid by Franco.

Griffin further testified that $1,000.00 was contributed by a person purporting to be a caretaker of the trailer park and a friend of Defendant, named Rex Boyce. No testimony was adduced as to the legitimacy of the source of those funds. The People argue that, consequently, there is no preponderance of the evidence to establish that the $1,000.00 contributed purportedly by a caretaker to a mobile home park is legitimately sourced.

Defendant testified with respect to the value and ownership of the house trailer offered as collateral in connection with the bond proffered. Defendant testified that he purchased the trailer [*3]for $1500.00 approximately 15 years ago and had invested "not a lot" of money in repairs to the trailer, fixing such items as flooring, windows and carpet over the years. He further testified that his incarceration in state prison was not for a serious offense, "in his estimation."

In this bail source hearing, the Court makes no (and need not make any) determination as to the soundness of the business decision of Binder Bail Bonds to accept the 1979 house trailer as collateral in support of its issuance of a bond. People ex rel Gerard C. Savage v Horn, 56 AD3d 806, 806-807 [2008]. In Savage, the appellate court held that county court erred in disapproving bail on the sole ground that the insurance company had not required sufficient collateral. Id., at 807.

Nonetheless, this Court retains the inherent authority, granted it by the Legislature, pursuant to Section 520.30(1), to make a determination as to "whether any feature of the undertaking contravenes public policy." Emphasis added.

This Court is mindful that: "The interests of the bail bond company and the interests of the State do not necessarily coincide. The court and the surety share the ultimate objective of ensuring the defendant's return to court for trial. However, they are motivated by separate and distinct concerns. The surety is a business enterprise. Its primary concern is to be indemnified if the bail is forfeited. It is under no obligation to ensure that the bail arrangement is consistent with the public policy of the State. The court's primary concern is to ensure that the policy and laws of the State are upheld. The possibility that the State may be left in possession of undesirable funds or property if the defendant absconds is a secondary concern." People v McIntyre, 168 Misc 2d 556, 563 [NY Sup Ct 1996]. In McIntyre, Supreme Court, kings County, held that when a defendant is unable to prove by a preponderance of the evidence that the source of collateral or other funds to secure a bond are legitimate, a court may deny posting of the bond, without affecting the actual order setting bail, on grounds of public policy. Id., at 565. "The court must probe the relationships between the indemnitors and the defendant and the motives of the indemnitors in pledging the collateral [or putting up funds to pay a premium]. These considerations, albeit not necessarily factors in the surety's decision to issue a bond, are crucial from a public policy standpoint." Id., at 563. Furthermore, it is a court's obligation to inquire "if an otherwise legitimate obligor is being unwittingly used as a front to conceal illicit sources of cash in contravention of New York State's public policy." Id.

Thus, it is of paramount concern to this Court that, as provided for by statute and procedure, the bail package proffered by Defendant be consistent with public policy. It is axiomatic that the public policy of the State of New York is to ensure that defendants, particularly those charged with serious felonies such as felonies pending against the instant defendant, appear in connection with the charges against them. To that extent, this Court has determined that the sum of $100,000.00 is sufficient to ensure this defendant's appearance; the Court's responsibility in setting bail, however, does not end there.

Additionally, this Court finds that Defendant has no monetary incentive to appear in connection with the bail package as proffered, since Defendant stands to lose only a trailer he purports to have been valued, some fifteen years ago, at the sum of $1500.00.

Defendant has failed to demonstrate the existence of a legitimate source for certain portions of the premium paid; the Court cannot credit the contradictory testimony of Carmen [*4]Lysiak, nor the testimony of Dawn Griffin regarding the proffered $1,000.00 from a caretaker in support of the premium.

Thus, without making any determination with respect to the viability of the business determination of the bail bondsman, this Court does find that the bail package, including the supporting affidavits of collateral proffered in support of that package, contravenes public policy, that is, to post $100,000.00 in United States currency or a fully funded bail bond to insure the continued appearance of this defendant.

As such, this Court cannot approve the proffered bail package in this matter.

BASED UPON ALL OF THE FOREGOING, the proffered bail package is hereby disapproved, but not the decision setting bail as previously set by this Court.