City Court of Albany, April 20, 2020

P. David Soares, District Attorney, Albany (Bryanne Perlanski of counsel), for plaintiff.

Stephen W. Herrick, Public Defender, Albany (Beau Melita of counsel), for George Fuller and others, defendants.

Tina Sodhi, Conflict Public Defender, Albany (Francisco Calderon of counsel), for Ray-Son Butler, defendant.

William T. Little, Albany, for Taequan Stanley, defendant.

O'Brien & Wood, Albany (Adam Eggleston of counsel), for Bahkee Green, defendant.

Paul Edwards, Albany, for Zaquan Woody, defendant.

Defendants George Fuller, Bahkee Green, Kenneth Foster, Zaquan Woody, Edward Proper and Lee Williams were arraigned on various felonies and remanded to the Albany County Jail without bail and have remained incarcerated since their arraignments.^[FN2] Defendants Taequan Stanley, Hassan Guishard and Ray-Son Butler likewise were arraigned on various felony charges and bail was set. These three defendants were unable to make bail and have remained incarcerated since their arraignments.^[FN3] Normally, when a defendant is charged with a felony and sent to jail, a judge must set a preliminary hearing, depending on the circumstances, either within 120 or 144 hours{**68 Misc 3d at 199} from the time of arrest (CPL 180.80). In this way, the defendants can test whether the People have real and sufficient evidence to justify their continued detention pending action of the grand jury—but these are not normal times.

On March 7, 2020, Governor Andrew Cuomo issued Executive Order No. 202 (9 NYCRR 8.202), which declared a state disaster emergency in connection with the novel coronavirus (COVID-19).^[FN4] Two weeks later on March 20, the Governor issued Executive Order (Cuomo) No. 202.8 (9 NYCRR 8.202.8), which temporarily suspended a number of statutory provisions. In particular, Executive Order No. 202.8 temporarily suspended "any specific time limit for the commencement . . . of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law." This Order was set to expire on April 19.

An initial question arose: did Executive Order No. 202.8 apply to preliminary hearings. This court held that it did (see People v Hemmingway, Albany City Ct, index No. CR 626-20 [finding that "(CPL 180.80) falls squarely within th(e) Executive Order's plain language"]). Consequently, the court set preliminary hearings for the defendants within 120 hours after the expiration of Executive Order No. 202.8. Thus, all defendants had hearings scheduled for the week of April 20.

Subsequent to the court setting the preliminary hearings, the Governor issued a new Executive Order (Executive Order [Cuomo] No. 202.14 [9 NYCRR 8.202.14]). This new Order extended the suspension of preliminary hearings through May 7. Overlaying the Governor's orders are administrative orders issued by Chief Administrative Judge Lawrence K. Marks. On March 22, Judge Marks issued Administrative Order of the Chief Administrative Judge of Courts AO/78/20 limiting criminal courts to five essential functions; conducting a preliminary hearing was not one of them. Thereafter, on April 13, Judge Marks expanded his Order which allowed certain routine criminal{**68 Misc 3d at 200} and civil matters to be remotely heard and decided. However, nothing changed that would permit a city court to conduct a preliminary hearing under CPL 180.60.

Based upon these orders, the People have moved the court to adjourn the defendants' preliminary hearings. The People argue that Executive Order No. 202.14 requires another adjournment for the same reasons the court set forth in Hemmingway. It would seem that the People have an unassailable argument.

Defendants disagree. First, they say this case is different because the extended Order means prolonged incarceration, something that was not considered by prior courts. In addition, defendants raise a new issue. Defendants argue that New York, by enacting CPL 180.80, vested them with a protected liberty interest. Defendants are right about this (Wolff v McDonnell, 418 US 539, 558 [1974] [noting that "a person's liberty is . . . protected, even when the liberty itself is a statutory creation of the State"]). When a person has a vested liberty interest the government may not deprive him of the interest without due process of law (see also Vitek v Jones, 445 US 480, 488-489 [1980] [concluding that "(o)nce a State has granted prisoners a liberty interest, (the Supreme Court has) held that due process protections are necessary to insure that the state-created right is not arbitrarily abrogated" (internal quotation marks omitted)]).

The guarantee to due process is found in the Fourteenth Amendment to the United States Constitution. Due process has two aspects: procedural due process and substantive due process. Procedural due process, at a minimum, affords a person the opportunity to be heard "at a meaningful time and in a meaningful manner" when the government attempts to deprive him of life, liberty, or property (Hamdi v Rumsfeld, 542 US 507, 533 [2004] [citations and internal quotation marks omitted]). In contrast, substantive due process is not about the type of hearing required by a deprivation; rather, substantive due process questions whether the government has the authority to make the deprivation at all (see Washington v Glucksberg, 521 US 702, 719 [1997] [concluding that the Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them' "], quoting Daniels v Williams, 474 US 327, 331 [1986]).

The court will not address the procedural due process aspect, as the issue has been previously decided and, in the court's{**68 Misc 3d at 201} opinion, correctly so (see People ex rel. Hamilton v Brann, 67 Misc 3d 1205[A], 2020 NY Slip Op 50392[U] [Sup Ct, Bronx County 2020]; People v Hood, 67 Misc 3d 1204[A], 2020 NY Slip Op 50384[U] [Poughkeepsie City Ct 2020]). Defendants have had the opportunity to be heard on the People's motion to adjourn their hearing. Moreover, they possess other methods to redress their incarceration. A defendant may, at any time, ask the court to reconsider a securing order based upon a change in circumstances (CPL 510.20 [1]). Further, a defendant may seek de novo review by a supreme court justice of a securing order set by a criminal court judge (CPL 530.30 [1]), or petition for a writ of habeas corpus when the constitutional or statutory standards prohibiting excessive bail or the arbitrary refusal of bail have been violated (People ex rel. Ryan v Infante, 108 AD2d 987, 988 [3d Dept 1985]). Therefore, the court concludes that the defendants' right to procedural due process has not been violated by Executive Order Nos. 202.8 and 202.14.

The court will address the substantive due process issue. The arena of substantive due process is complex and lacks consistent descriptions of legal standards. The inescapable reality is that no single theory of section 1 of the Fourteenth Amendment of the US Constitution yields clear answers in every case, and "[n]o formula could serve as a substitute, in this area, for judgment and restraint" (Poe v Ullman, 367 US 497, 542 [1961, Harlan, J., dissenting]). However, the Supreme Court has articulated a general outline to review a law's compliance with substantive due process—

"Government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable to judicial invalidation. . . . More fundamental rights may receive more robust judicial protection, but the strength of the individual's liberty interests and the State's regulatory interests must always be assessed and compared" (McDonald v Chicago, 561 US 742, 879 [2010, Scalia, J., concurring]).

To that end, the court will compare the relative interests involved here. Beginning with the defendants' interest, they have a substantial stake in having a preliminary hearing—their freedom hangs in the balance. With respect to the State's{**68 Misc 3d at 202} regulatory interest, restricting court access helps stem the spread of a potent disease—this concern seems like a compelling one. Certainly compelling enough to temporarily halt judicial proceedings, except for the most essential matters.^[FN5]

Defendants argue the government's concern is more illusory than real. They maintain that the courts have the technology to conduct evidentiary hearings remotely. It seems, as defendants contend, the time required for the courts to shift from personal appearances to video appearances has come to fruition. Now, the court system has sufficient technology and ability to conduct virtual evidentiary hearings—according to defendants, it is done in Albany County Family Court with remote witnesses and exhibits. So, the argument goes, there is no reason why what is done for litigants in family court cannot be extended to defendants in criminal court. Simply put, the defendants want what other litigants have—a virtual evidentiary hearing.

Defendants' argument has true force. Mr. Stanley has been incarcerated 25 days; if an adjournment is granted, he will have been confined more than 50 days without a judge determining if there is reasonable cause to hold him. All the while, virtual hearings are being conducted in family courts. Thus, in the court's opinion, while there is no problem with the government's justification for restricting access to the courts, the problem lies with who is given access and who is denied.

When the government grants benefits to some and denies them to others based upon some classification, the classifications must bear a relationship to the purpose served by the law (see Cleburne v Cleburne Living Center, Inc., 473 US 432 [1985]). Of course, granting of a privilege to some and denying it to others is the inherent nature in all laws. No regulation is{**68 Misc 3d at 203} required to have a perfect fit between its means and its ends (Board of Trustees of State Univ. of N. Y. v Fox, 492 US 469 [1989]). The question here is whether the fit is too imperfect between which matters get virtual hearings and which do not.

While the court might be inclined to suspect that the Executive Order is unconstitutional as applied to CPL 180.80, it will not and cannot override the Order from Judge Marks. Courts operate through a system. Judge Marks has been empowered and entrusted to administer the court system and allocate its limited resources. No individual judge may audaciously cloak himself with the power to reorder court resources. Thus, the court holds that a preliminary hearing under CPL 180.80 is a nonessential judicial activity in accordance with Judge Marks's Order and no hearing can be held while it is in effect.

One last thing needs to be said. Suspension of civil liberties always seems well advised in a crisis. People focus on fighting the battle, in this case a virus, and collateral damage on liberty is an afterthought that can be dealt with later and condemned in retrospect by history (see e.g. Korematsu v United States, 323 US 214 [1944]). So may be the case here. New York is in the midst of a terrible pandemic. Financial, material and intellectual resources are being diverted to protect the health of our people and rightly so. The Governor and the Chief Administrative Judge are making tough decisions without perfect clarity on how to best combat this disease. Indeed, dealing with COVID-19 is an exercise in adaptation.

Still courts need to be mindful that at some point the delay for prisoners becomes intolerable. The court is sure from the defendants' perspective it already has. Nevertheless, for the reasons stated above, the People's motion for an adjournment is granted. Executive Order No. 202.14 which suspends the time frames of the CPL expires on Thursday May 7, 2020. On May 7, the preliminary hearing clock starts ticking again. Therefore, the Clerk is directed to schedule defendants' preliminary hearings within 144 hours from May 7, 2020, so that defendants' hearings under CPL 180.60 may be conducted within the time frame required by CPL 180.80.