Supreme Court, Kings County, June 5, 2020

Eric Gonzalez, District Attorney (Gwen Barnes, Melissa Cardinale and Caryn Teitelman of counsel), for the People.

Bridgette Bissonnette for petitioner.

The defense moves this court pursuant to Civil Practice Law and Rules § 7002 (a) and (b) (5), writ of habeas corpus, challenging the pretrial detention of Jose Gonzalez-Leal (hereinafter petitioner) in violation of Criminal Procedure Law § 180.80. The People opposed this instant writ, arguing good cause for the extension of temporal limitations of CPL 180.80, pursuant to CPL 180.80 (3). Upon review of all submissions by the parties, as well as the compelling oral argument of counsel held on June 2, 2020, and June 3, 2020, this court finds as follows.

By gubernatorial Executive Order (A. Cuomo) No. 202.28 (9 NYCRR 8.202.28), dated May 7, 2020, Governor Andrew Cuomo, in pertinent part, for the first time in state history permitted virtual preliminary hearings to be conducted on felony arrests. The Governor further repealed his prior executive orders suspending the requirements of CPL 180.80 and mandated that the 144-hour requirement for the disposition of a felony complaint would resume from May 8, 2020. Therefore, the 144 hours for all arrestees' arrests at that time expired on May 14, 2020.

On May 8, 2020, the Chief Clerk for the New York City Criminal Court published a procedural directive for scheduling and conducting virtual preliminary hearings in the City of New York. Said directive requires the People to notify the Chief Clerk's Office of their readiness to proceed [*2]with a preliminary hearing and states that the Clerk's Office would coordinate and schedule the pending matter for a virtual hearing.

On May 11, 2020, the petitioner was arrested and arraigned on a felony complaint in Kings County Criminal Court. The petitioner was charged with the violation of Penal Law §§ 130.75 (1) (a); 130.80 (1) (a); and 260.10 (1), wherein it is alleged that the petitioner did engage in oral and vaginal sexual intercourse with an eight-year-old child, over the course of approximately six months. As gubernatorial Executive Order No. 202.28 was enacted three days prior to the petitioner's arrest, said Executive Order's provisions were controlling. As such, 144 hours from the petitioner's arrest expired on May 17, 2020,{**68 Misc 3d at 567} which was a Sunday. However, the practical expiration of the temporal requirements of CPL 180.80 was the close of business on Friday, May 15, 2020.

On May 13, 2020, the People moved for a good cause extension of the temporal requirements of CPL 180.80, pursuant to CPL 180.80 (3), and the defense opposed said motion on May 14, 2020.

Judge Yavinsky, of the Kings County Criminal Court, issued his written decision, finding good cause for the extension of CPL 180.80, due to the inability to empanel a grand jury as a result of the COVID-19 pandemic. Judge Yavinsky further granted leave to all parties to file further application related to the "procedure established by the Clerk of the Court in his revised May 8, 2020 'E.O. 202.28 CPL 180.80 Application and Virtual Preliminary Hearing Process.' " (People v Gonzalez-Leal, Crim Ct, Kings County, May 14, 2020, Yavinsky, J.)

Courts in New York City began scheduling and conducting virtual preliminary hearings on May 15, 2020, not only to address arrests occurring as of the date of gubernatorial Executive Order No. 202.28, but the entire backlog of cases that had entered the court system since the Governor had suspended the requirements of CPL 180.80 due to the current pandemic.

Only six days after receiving Judge Yavinsky's decision, finding good cause to extend CPL 180.80 in the instant matter, the People filed an additional motion to further extend the temporal requirements of CPL 180.80 and to forgo a preliminary hearing based on good cause, due to the sensitive nature of this particular case.^[FN*] In addition, it must be noted that as of May 20, 2020, Kings County Criminal Court had only completed three virtual preliminary hearings. It is well settled that the People cannot be held accountable or penalized for court congestion and the scheduling of backlogged matters.

Further, this court finds that a delay of only six days between the issuance of Judge Yavinsky's May 14, 2020 decision and the filing of the People's second motion to extend CPL 180.80 and forgo a preliminary hearing is reasonable in this matter, due to the sensitive facts and serious allegations.{**68 Misc 3d at 568}

"CPL § 180.80 (3) permits a court to deny release of a defendant if a timely preliminary hearing did not occur when the People present 'some compelling facts or circumstance which precluded the disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice.' " (People v Rice, Washington County, May 14, 2020, Hogan, J.)

A preliminary hearing in this case would require the eight-year-old complainant to see and testify against the person who she alleges engaged in sexual intercourse with her. This child victim would be required to identify him and be subjected to cross-examination. If a grand jury could be empaneled this child would not be placed in that situation. Through no fault of anyone, the COVID-19 pandemic does not currently allow for the empaneling of a grand jury.

Since the People cannot empanel a grand jury for public health reasons, in conjunction with the serious allegations in this case, the victim's age and the emotional trauma the child would undergo, this court finds more than sufficient facts to establish good cause to forgo a preliminary hearing. This court further finds that such a hearing would be contrary to the interests of justice. (See id.; see also People v Mead, Warren County, May 14, 2020, Hogan, J. [eight-year-old victim of sexual assault compelled to testify at preliminary hearing is contrary to interest of justice and the child's emotional welfare]; see also People v Rodriguez, Crim Ct, Queens County, May 29, 2020, Johnson, J. [a preliminary hearing would potentially harm the emotional health of a 16-year-old victim of sexual assault].)

Based on the foregoing, the petitioner's writ is hereby denied in its entirety. The People's application to further extend the temporal requirements of CPL 180.80 and to forgo a preliminary hearing in this matter, on the grounds of good cause shown, is hereby granted. Finally, this court orders the petitioner be held on the felony complaint.

This court takes notice of and commends the professionalism and erudite advocacy of the attorneys that appeared in this matter.