Supreme Court, Nassau County, February 20, 2020

Madeline Singas, District Attorney, Mineola (Kelly Gans of counsel), for plaintiff.

Geoffrey Prime, Mineola, for defendant.

The defendant, Joseph J. Chensky, is charged with grand larceny in the fourth degree (credit card) under Penal Law § 155.30 (4) and grand larceny in the fourth degree (value over $1,000) under Penal Law § 155.30 (1). Both are class E felonies. The charges stem from an incident that occurred on or about December 3, 2019, at a Stop and Shop, in the City of Long Beach, County of Nassau, New York State. On January 15, 2020, the defendant was arrested by the Long Beach City Police for the two E felonies and as they were "non-qualifying offenses" he was issued a desk appearance ticket (DAT) directing his appearance before a Long Beach City [*2]judge for the following day, January 16, 2020. The DAT specifically stated that, "upon your failure to appear as above directed, a criminal summons or a warrant for your arrest may be issued." The defendant did indeed appear in Long Beach City Court on January 16, 2020, and at that time the People filed the two felony complaints currently before this court. The defendant then consented to have the case transferred to this court, the Nassau County Superior Criminal Court, and he was informed that his case would be on the calendar for January 27, 2020. Defendant Chensky was released on his own recognizance (ROR) and given the appropriate admonishment, which once again stated that a future failure to appear would result in a warrant of arrest in accordance with People v Parker (57 NY2d 136 [1982]).

On Monday, January 27, 2020, the defendant failed to appear before this court. Defense counsel requested time to reach out to the defendant and his extended family and the court granted the application and calendared the next court date for February 3, 2020. It is significant to note that, while the new statute only provides a delay in the issuance of a bench warrant for 48 hours (see CPL 510.50 [2]), this court provided the defendant with a full week, eight days counting his first failure to appear.{**67 Misc 3d at 375}

On February 3, 2020, defendant Chensky failed to appear again. Defense counsel notified the court that he had personally reached out to the defendant and his extended family. The People requested a bench warrant and one was issued by the court forthwith. After the issuance of the bench warrant, defendant failed to voluntarily surrender and was thereafter arrested and brought before this court on February 7, 2020.

As a result of the defendant's failure to appear twice, and not voluntarily surrendering once the bench warrant was issued, this court determined by clear and convincing evidence that the defendant persistently and willfully failed to appear after notice of scheduled appearances pursuant to CPL 530.60 (2) (b) (i), and monetary bail was set. The following are the conclusions of law and reasons for the court's determination.

Under the newly enacted Bail Reform Act of 2019 (L 2019, ch 59, § 1, part JJJ), numerous crimes, such as the two felonies charged herein, are considered "non-qualifying offenses" where bail, at least initially, is not an option for the court. However, a defendant at liberty can have bail set, even if they otherwise could not have had bail set, "when the court has found, by clear and convincing evidence, that the defendant: . . . persistently and willfully failed to appear after notice of scheduled appearances in the case before the court" (CPL 530.60 [2] [b] [i]). The degree of proof is "clear and convincing" evidence. This standard is one of an intermediate nature, being more than mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt. (People v Dilillo, 162 AD3d 915 [2d Dept 2018].)

The key to determine if monetary bail can be set resides in the meaning of the words "willfully" and "persistently." Neither of these words are defined in the statute and as such trial courts are required to develop and adopt an independent approach for an appropriate interpretation.

As a general rule, words used in the Penal Law and Criminal Procedure Law are to be given their usual ordinary and commonly accepted meaning. (People v King, 61 NY2d 550 [1984]; People v Munoz, 207 AD2d 418 [2d Dept 1994].) The language of a statute is generally constructed according to its natural and most obvious sense and plain meaning, without resorting to artificial and/or forced construction. (Van Amerogen v Donnini, 156 AD2d 103 [3d Dept 1990].)

There is little, if any, guidance as to the definition of "willfully" and "persistently" although New York's Bail Reform Law: {**67 Misc 3d at 376}A Bench Book for Judges (Hon. Daniel Conviser) is of some assistance here. An appropriate definition for "willfully" is construed as a "conscious disregard" (People v Smith, 34 AD2d 524, 525 [1st Dept 1970]). Under federal interpretation, the term "willfully" means "voluntary, intentional violation of a known legal duty." (United States v Pomponio, 429 US 10, 12 [1976].) While, as a general rule, defendants will not miss their court dates, here the defendant has failed to appear in court on three separate occasions. He has therefore continuously disregarded his legal duty to appear in court for his charged crimes, even though he was advised on more than one occasion of the seriousness of this legal responsibility.

Although the defendant was notified by way of Parker warnings by the Long Beach City Court, he failed to appear on the court scheduled appearance date (Jan. 27, 2020) even though he was admonished to appear on the court record. He thereafter failed to appear on the following date (Feb. 3, 2020), although notified. A warrant was therefore issued and the defendant did not voluntarily appear to surrender. There was no indication on the record by the defendant or counsel that anything other than a willful disregard was the reason for his failure to appear on the scheduled appearance dates or thereafter.

Thus the defendant's failure to appear in court can be determined to be willful and was an intended violation of the legal duty and obligation to come to court as directed.

As to the word "persistently," there is no specific definition in the Penal Law or Criminal Procedure Law, but there are case law and statutes that are helpful and can be of assistance. For example, persistent has been defined as "existing for a long or longer than usual time or continuously." (Merriam-Webster Online Dictionary, persistent [https://www.merriam-webster.com/dictionary/persistent]; People v Velazquez, 58 AD3d 646 [2d Dept 2009]; People v Morse, 62 NY2d 205 [1984].)

Also, the one statutory area where there is some definition of "persistent" is the persistent felony offender statute, under Penal Law § 70.10 (1) (a). Under the statute, a persistent felony offender must have two prior felony convictions in addition to the defendant's current one, in other words, three felony convictions. Therefore, at least under the persistent felony offender statute, three incidents are a key to determine where it might be viewed as "persistent." (People v Ramos, 45 AD3d 702 [2d Dept 2007].){**67 Misc 3d at 377}

In the instant case, the defendant failed to appear on two scheduled court dates, and failed to voluntarily return to court following the issuance of a bench warrant. These three failures to appear, in the spirit of the law, can determine that the defendant's lack of court [*4]attendance was persistent. Certainly this interpretation would be consistent with the statute, and avoids an absurd result, where the defendant would be released and possibly rearrested on a continuous basis. (McKinney's Cons Laws of NY, Book 1, Statutes § 145; Matter of Rivera v Erie County Bd. of Elections, 164 AD2d 976 [4th Dept 1990].)

Accordingly, it is the holding of this court, by clear and convincing evidence and proof, that the defendant was notified and willfully failed to appear to court, and that failure was persistent due to failures to return to court. The defendant shall be classified as an absconding defendant and the court may now have bail set under CPL 530.60 (2) (b) (i).

As a result of the defendant's conduct, and the concern of this court regarding the likelihood of the defendant's "risk of flight," this court holds that bail is required to "reasonably assure the principal's [defendant] return to court" (CPL 500.10 [3-a]). Bail is set at $10,000 cash, $30,000 bond and $300,000 unsecured surety bond. (CPL 520.10 [2] [b].) The court will, of course, revisit this statute at a later date upon request of counsel.