Supreme Court, New York County, March 26, 2018

Cyrus R. Vance, Jr., District Attorney, New York City (Andrew Trueheart of counsel), for plaintiff.

The Legal Aid Society, New York City (Robert Harold of counsel), for defendant.

On March 22, 2018, at Supreme Court arraignment on the indictment, this court increased bail from a $7,500 insurance company bail bond or $7,500 cash, to a $50,000 insurance company bail bond or $10,000 cash, and imposed sua sponte a 72-hour surety hold. This opinion addresses the reasons and authority for setting the surety hold in light of a recent decision by the Appellate Division, First Department, in Matter of People of the State of N.Y. ex rel. Farbman v Simon (159 AD3d 534 [1st Dept 2018]).

The defendant stands indicted for crimes from two separate incidents. The felony complaint alleges that on February 23, 2018,^[FN2] the defendant stole earrings worth $6,000 from a jewelry store and that the earrings were recovered from the pocket of the defendant's pants when [*2]he was arrested. For this alleged incident, the defendant was indicted for two class D non-violent felonies, grand larceny in the third degree and criminal possession of stolen property in the third degree. The felony complaint also alleges that on November 28, 2017, the defendant stole a pendant worth $3,000 from another jewelry store. For this alleged incident, the defendant was indicted for a class E non-violent felony, grand larceny in the fourth degree.

The defendant is a predicate felon based upon a 2011 conviction for robbery in the third degree.^[FN3] Should the defendant be convicted of both the class D non-violent and the class E non-violent felony offenses arising from separate dates, he would face a mandatory minimum sentence of 2 to 4 years' imprisonment (mandatory minimum sentences imposed to be served{**59 Misc 3d at 868} concurrently) and a potential maximum term of 51/2 to 11 years' imprisonment (statutory maximum terms of imprisonment imposed to be served consecutively).

The defendant is 56 years old. The CJA report states that he has lived in a shelter for the past 6 months and does not know his previous address. He is unemployed. The CJA report rated defendant to be a high risk for failure to appear.

The defendant's reported criminal history begins with an arrest in 1978 for a class D felony. He failed to appear, and when he was ultimately apprehended, he was convicted of a class A misdemeanor and sentenced to 15 days' jail. He was arrested in 1979, failed to appear four times, and was convicted of misdemeanor trespass. Also in 1979 he was arrested, this time for robbery in the first degree. He failed to appear twice and was eventually convicted in that case in 1981 of his first felony, attempted robbery in the second degree, and sentenced to 11/2 to 41/2 years' imprisonment. He was released in August 1983, arrested in October 1983 for theft of services, and released. While that case was pending, he was arrested in December 1983 for robbery in the second degree and ultimately convicted in December 1984 of grand larceny in the third degree, for which he was sentenced as a predicate felon to 11/2 to 3 years' imprisonment. He was released on parole in March 1986. Shortly afterwards, in June 1986, he was arrested for his third felony, attempted second degree robbery, convicted of attempted robbery in the third degree, and sentenced in August 1986, again as a predicate felon, to a prison term of 11/2 to 3 years. He was released from that sentence in August 1990. Over the next year and a half, he was convicted of three misdemeanors.

The defendant's next felony arrest was in February 1993 for grand larceny in the fourth degree. He was convicted in September 1993 of that charge and sentenced again as a predicate felon to 11/2 to 3 years' imprisonment. He was released in February 1995 but was re-incarcerated in June 1995 for violating the terms of his parole and released on March 5, 1996. Six days later, on March 11, 1996, the defendant was arrested for robbery in the second degree. Seven days later, he pleaded guilty to petit larceny in exchange for a sentence of 10 months' incarceration. Following that conviction, defendant sustained three more misdemeanor convictions, until he was arrested in May 2000 and charged with robbery in the second degree. In November 2000, he was convicted of attempted robbery in the second degree and sentenced to three years' imprisonment. After{**59 Misc 3d at 869} a series of releases to supervision and re-incarceration, he was eventually released for the last time on that case in May 2008.^[FN4] After that release, the defendant was [*3]convicted of four more misdemeanor crimes. He was again arrested for a felony a year later in May 2009, convicted of third degree robbery in January 2011, and sentenced to 31/2 to 7 years' imprisonment. The defendant was paroled for the first time in June 2014, re-incarcerated in July 2016, and released in October 2016. After that he sustained four misdemeanor convictions until he was arrested on February 23, 2018, for the charges in this case.

In short, the defendant is a six-time convicted felon, apparently homeless and rootless, and possibly mentally ill. It appears likely that he has never appeared in court voluntarily and has failed to appear whenever he was released. The court paperwork indicates that the defendant has no known family and no occupation.

Many issues have been raised in the public forum about bail. A Judicial Task Force has recommended abolishing both cash bail and traditional bail bonds for defendants charged with misdemeanors and certain non-violent felonies (see NY's Justice Task Force Calls for Bail Reform, NYLJ, Mar. 21, 2018, available at https://www.law.com/newyorklawjournal/2018/03/21/nys-justice-task-force-calls-for-bail-reform/). A recent trial-level court opinion held that it is unconstitutional to set cash bail that a defendant is not able to post (see Matter of People ex rel. Kunkeli v Anderson, 59 Misc 3d 238 [Sup Ct, Dutchess County, Jan. 31, 2018, Rosa, J., index No. 90/2018]).

Nevertheless, this court must apply the statutory law now in effect. Under current law, bail may be set, in the court's discretion, as necessary (and only as necessary) to ensure a defendant's appearance, taking into account the factors identified in the statute: the defendant's character and mental condition; employment and financial resources; family and community ties; criminal record; prior record; bench warrant history; the strength of the People's case; and the defendant's sentence exposure (see CPL 510.30 [2]). Application of these factors plainly warrants bail here, as the defendant's character appears to be poor, and he has no known employment or financial resources; he has a long criminal record; he has a bench warrant history; the People's case appears strong as the contraband{**59 Misc 3d at 870} was found in the defendant's pocket immediately after the theft; and his sentence exposure is high. Given the high likelihood of flight in view of these factors, even release with supervision would be inadequate to ensure this defendant's appearance. Supervision would need to be round the clock, seven days a week, in other words, custodial.

When setting bail, this court must consider not only the amount of bail, but the form of bail. Any form of bail other than release (either with or without supervision), however, requires financial resources. No statutory form of bail exists that does not involve a commitment by the defendant or suretor to pay money—either immediately, in the future, or both. Thus, a suretor or the defendant may put nothing down but promise to pay a sum in the future if the defendant absconds (a recognizance bond), put down a percentage of the full sum promised if the defendant absconds (a partially secured bond), or put down property that will be forfeited if the defendant absconds (a fully secured bond). Or an insurance company may promise to pay an amount should the defendant abscond and accept collateral from the defendant or others to secure that promise (an insurance company bail bond) (see CPL 500.10, 520.10).

Whenever a form of bail involves financial resources, either immediately or in the future, the law permits the prosecution and the court to examine the sufficiency of those resources if certain conditions are satisfied. CPL 520.30 sets out the conditions upon which the court may, at the request of the prosecution, examine the sufficiency of any proposed bond. The statute applies only after a bond has been posted. Once the bond is posted, the prosecution may ask for [*4]a hearing to examine the source of the bail funds if there is reasonable cause to believe that the person posting the funds is not the rightful owner or that any funds are the fruits of criminal or unlawful conduct. Although no inquiry takes place until after a bond is posted, and CPL 520.30 does not on its face apply before any bond is posted, the practice of the courts in this County has been to exercise discretion to order a "surety hold" when the court finds it appropriate. That order bars the Department of Corrections from releasing a defendant for either 48 or 72 hours after bail is posted so that the prosecution can decide whether to approve the bond or request a hearing. Often such a hold is imposed at the request of the prosecution; sometimes, as in the instant matter, the order is made sua sponte. No statutory authority governs the issuance of such a hold.{**59 Misc 3d at 871}

Recently, in Farbman, the Appellate Division, First Department, affirmed a bail set by a trial court and held that it would "waive" the requirement of a surety examination because "the requirements for ordering a surety inspection were not met" (159 AD3d at 534).^[FN5] The Appellate Division cited CPL 520.30 (1) as setting forth those requirements. Farbman thus stands for the proposition that a court has authority to impose or not to impose a surety hold based upon a consideration of the factors set out in CPL 520.30 (1), which are the factors that would allow the prosecution to request a hearing after bail is posted and that the court would be required to consider at any such hearing. In choosing to "waive" the hold, Farbman acknowledged, at least implicitly, that it also would have had the authority to impose or affirm the hold. In so doing, however, the court ruled explicitly that any decision about whether to waive or not to waive the surety hold should be based upon a consideration of the factors in CPL 520.30 (1). These factors include any appearance that any funds used for bail are the source of criminal or unlawful activity, and the background, character, and reputation of anyone undertaking the obligation.

This court therefore concludes that it has the authority to exercise its discretion to order a surety hold for the prosecution to determine whether or not to make an application pursuant to CPL 520.30, after any bail is actually posted, if the facts before this court raise reasonable concerns in view of the factors set forth in that statute. Here, no representation has been made about who would post bail for the defendant. The defendant himself, should he post as a principal, appears to be of bad character and potentially to have access to the proceeds of crime. In view of the absence of any representations about who might post bail legitimately, this court must question whether anyone—now unknown—who steps forward on the defendant's behalf as an obligor is also of questionable character, also has access to the proceeds of criminal activity, or has been promised reimbursement by the defendant with the proceeds of criminal activity. Accordingly, this court has concluded that it has the legal authority to impose a surety hold.