City Court of Cohoes, November 24, 2020

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

Stephen W. Herrick, Public Defender (Jessica Gorman of counsel), for defendant.

This case requires the court to determine whether the defendant and the victim—who are neither related nor have had any discernible domestic relationship in the traditional sense—meet the criteria for being members of the "same family or household" so as to render the defendant eligible for bail under the new bail statutes (see CPL 510.10 [4] [k]). For the reasons that follow, the court concludes that they do.

Integral to the 2019 bail reforms is the concept of the "qualifying offense." These offenses are intended to bridle a court's discretion, so that, unless a crime constitutes a statutorily designated qualifying offense, courts cannot set bail, no matter how great the risk that a defendant will not return to court (see CPL 510.10 [4]). In some cases, however, the crime in question is not a qualifying offense per se, like murder or kidnapping. Rather, in this subset of cases, the crimes must, in addition to being designated by statute, be committed in some [*2]specifically prescribed scenario, such as the burglary committed in the actual "living area" of a dwelling or the felony committed by the recidivist (see CPL 510.10 [4] [a], [s]).

As relevant to this case, this subset also includes crimes that must be directed at a member of the defendant's "same family or household" as defined in CPL 530.11 (1) (see CPL 510.10 [4] [k]). To determine if these crimes constitute a "qualifying offense," courts must confront the myriad ways in which "families" have constituted themselves across the state. That is the challenge presented here. A second challenge is how—or, more specifically, what procedures or evidence is required—to answer the first. In other words, does resolution of the "qualifying offense" question require a hearing? And, if so, what kind of evidence and standard of proof is required?

The answer will often depend on the facts of the case. Here, they are as follows. On the morning of November 19, 2020, the defendant allegedly strangled the victim after she saw him{**70 Misc 3d at 610} growing enraged while changing her one-year-old son's diaper. Based on the ensuing altercation, the defendant was charged with criminal obstruction of breathing for strangling the victim (see Penal Law § 121.11) and endangering the welfare of a child (Penal Law § 260.10). He was arraigned later that day.

Ordinarily, the charges would not have rendered the defendant eligible for bail because they are not "qualifying offenses" per se under the bail statutes. However, criminal obstruction of breathing is one of the select crimes that can rise to the level of a "qualifying offense" if it satisfies the additional requirement of having been directed against a member of the defendant's "same family or household" (see CPL 510.10 [4] [k]). Specifically, CPL 510.10 (4) (k) includes, as a qualifying offense:

"criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, strangulation in the second degree as defined in section 121.12 of the penal law or unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, and is alleged to have committed the offense against a member of the defendant's same family or household as defined in subdivision one of section 530.11 of this title."

In order to determine whether criminal obstruction of breathing was a qualifying offense, the court initially reviewed the accusatory instruments and supporting depositions for evidence bearing on the "same family or household" requirement. However, the depositions revealed only that the alleged victim lived with the defendant, but was not his girlfriend, family member or sexual partner. If there were nothing more, of course, then this case would be easy to resolve: the defendant and the victim (the parties) would not be members of the "same family or household," and, as a result, bail could not be set. But the depositions hinted at a relationship beyond that of the casual friend or roommate. Hence, the need for a hearing to assess the dynamic of the parties' relationship.

That hearing was held shortly after the defendant's arraignment, at which the arresting officer was called as a witness. The officer testified that the defendant lived in a second-floor apartment in the City of Cohoes with the victim, her child, and the victim's girlfriend. According to the officer, the apartment was relatively small, with two bedrooms—one for the defendant, the other for the child—as well as a third makeshift {**70 Misc 3d at 611}bedroom contrived out of what should have been the living room area. The officer went on to note that the parties had lived at the flat for eight months, but had lived together at another location prior to that, and had known each other for a significant period of time. Although not related, the parties saw each other daily and trusted one another. In fact, the defendant was [*3]charged with the care of the victim's child, watching him at least five days a week, and at other times, as needed.

Based on this evidence, the court was required to determine whether the parties satisfied the "same family or household" requirement so as to render the underlying charge bail-eligible. At first blush, the definition of "same family or household," found in CPL 530.11, did not seem to be much help. To the contrary, with its focus on the more traditional family makeup—such as persons who are related by consanguinity or affinity; legally married spouses; former spouses; and unmarried persons with a child or children in common (see CPL 530.11 [1] [a]-[d])—CPL 530.11 (1) did not appear to offer a definition of "same family or household" that would have embraced the unique circumstances of this case. However, a more expansive definition of "same family or household" is found in CPL 530.11 (1) (e). That paragraph, which was added in 2008, expanded the definition of "same family or household" to encompass "persons . . . who are or have been in an intimate relationship" regardless of whether or not they were related or had a current or prior sexual relationship (see CPL 530.11 [1] [e] [emphasis supplied]; Matter of Jose M. v Angel V., 99 AD3d 243 [2d Dept 2012]).

This broader definition of "same family or household" is clearly flexible enough to accommodate the parties in this case. Specifically, CPL 530.11 (1) (e) is intended to cover persons who are neither related by consanguinity or affinity, nor have been involved in a current or prior sexual relationship, but not so loose as to include the passing acquaintance or those engaged in "ordinary fraternization." Between these two extremes, the legislature left the issue open-ended, leaving if for "the courts to determine on a case-by-case basis what qualifies as an 'intimate relationship' " (see Matter of Seye v Lamar, 72 AD3d 975, 976 [2d Dept 2010]). Towards that end, the legislature suggested that three non-exclusive factors be considered. These include (1) "the nature or type of relationship, regardless of whether the relationship is sexual in nature;" (2) "the frequency of interaction between the persons; and" (3) "the duration of the relationship." (CPL 530.11 [1] [e].)

{**70 Misc 3d at 612}Several courts have applied these factors in the context of Family Court proceedings. In Matter of Jose M., for example, the Second Department was called upon to interpret the Family Court Act's definition of "same family or household," which tracks the definition found in CPL 530.11 (1) (see Family Ct Act § 812). At issue in Jose M. was whether the Family Court could adjudicate a case of child abuse lodged against the live-in boyfriend of the victim-child's mother. The resolution of the issue depended on whether the boyfriend had an "intimate relationship" with the child so as to bring them within the scope of the "same family or household." The Second Department concluded that he did, reasoning that the boyfriend had been a "quasi stepparent" to the abused child despite having no other familial connection to her.

While not directly on point, Jose M. is persuasive authority, given the facts of this case. Specifically, like that of the boyfriend and child in Jose M., the relationship between the defendant and the victim in this case falls between the two poles established by CPL 530.11 (1) (e). To be sure, there is no evidence that the defendant was related to, or had a sexual relationship with, the victim—a fact, it should be noted, that the statute has explicitly demoted to non-determinative status (see CPL 530.11 [1] [e]). On the other hand, the parties have known each other for a significant period of time and have had frequent and daily interactions. More importantly, the nature of their relationship is substantial. Far from being a mere roommate, the defendant has taken care of the victim's one-year-old son on a daily basis, as described above. Clearly, the parties, by their own actions, manifested an intimacy of relations that, while defying [*4]traditional notions of "family" or "household," nevertheless evince a relationship of profound substance. In any other context, the defendant would be described as a "quasi stepparent" to the victim's son (see Jose M.), and the entire household to which they belong, a "family."

This is precisely the sort of nontraditional arrangement that the 2008 amendments to CPL 530.11 (1) were designed to accommodate (see Sponsor's Mem, Bill Jacket, L 2008, ch 326). It also, by logical extension, covers the type of crimes that the bail statutes intended to make qualifying offenses through their incorporation of the "same family or household" concept set forth in CPL 530.11 (1) (see CPL 510.10 [4] [h], [k]; see also CPL 510.30 [1] [g]). Indeed, when considering the factors set forth in CPL 530.11 (1) (e), the court is led to the inescapable{**70 Misc 3d at 613} conclusion that the defendant's relationship with the victim must fall under the definition of "same family or household" so as to make the underlying offense—criminal obstruction of breathing—a qualifying offense for purposes of bail (see CPL 510.10 [4] [k]). Put another way, there is no greater trust that one can repose in another than entrusting to them the care of one's child, and the meaning of "same family or household" must account for that.

That leaves for resolution the second challenge presented by this case—the procedures to be employed in making the "qualifying offense" determinations in the first place. This second challenge can be addressed into two parts. First, does the court have the authority to convene a hearing—as it did here? And, second, if so, what standard of proof should be used?

Turning to the first question, the court notes that CPL 510.10 (4) is largely silent on the subject of a hearing. However, it is impossible to ignore that a hearing is implied in CPL 510.10 (4) (k) as a necessary incident to determining whether a crime is a "qualifying offense"—in fact, in this case, a "qualifying offense" could not have been determined without an evidentiary hearing. Under the circumstances, it is clear that the rules of statutory construction must afford some leeway in effectuating the legislative intent, despite the generally applicable proscription against using construction to cure an omission in a statute. (See McKinney's Cons Laws of NY, Book 1, Statutes § 364; see also Stief v Hart, 1 NY 20 [1847].) It was, in other words, incumbent on the court, under the circumstances of this case, to have either convened the evidentiary hearing, or invalidated the statute by its inaction. The court chose to do the hearing.

In this regard, it should be noted that the legislative silence on the issue of evidentiary hearings is not dispositive. Courts do not require leave from the legislature, whether express or implied, to conduct hearings. Instead, courts retain the inherent power to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases" (see Link v Wabash R. Co., 370 US 626, 630-631 [1962]), including "those reasonable and necessary steps . . . [required] to enable it to perform efficiently the judicial function for which it has been constituted" (People v Green, 170 Misc 2d 519, 523 [Sup Ct, Bronx County 1996]). That means, as relevant here, the power to fill in any "gaps of express law and to respond to problems, especially evidentiary and procedural, that come up in carrying out their adjudicative duties" (id. at 523-524, quoting Felix F. {**70 Misc 3d at 614}Stumpf, Inherent Powers of the Courts 37 [1994]). This includes the power to convene hearings to resolve factual disputes (see id.).

The same inherent authority also enabled the court to devise a suitable standard of proof—the second procedural question raised above. That, too, was required because of the silence of CPL 510.10 (4) (k). Fortunately, another of the qualifying offenses—this one dealing with a crime involving harm to an identifiable person or property committed while the defendant was at liberty on a similar offense—identifies "reasonable cause" as an appropriate standard of proof (see CPL 510.10 [4] [t]; see People v Brown, 69 Misc 3d 229 [Orange County [*5]Ct 2020]). By analogy, that benchmark seems apt here.

But it is more than analogies that compel the court's conclusion here. "Reasonable cause to believe" is the standard by which the sufficiency of all substantive crimes is measured (see CPL 100.40 [sufficiency of informations and complaints], 190.65 [indictments]). And, aside from containing an additional element that is appended by the bail statutes, that is precisely what a "qualifying offense" is—a substantive offense with an extra requirement. As such, it is appropriate to apply the same standard used in assessing the sufficiency of the underlying substantive crime—the standard of "reasonable cause to believe"—to the court's "qualifying offense" determinations. It is the simple, and obvious solution.

Moreover, as a practical matter, the court notes that the statutory definition of "reasonable cause to believe" permits the use of hearsay evidence unless otherwise provided—meaning that courts, in the often harried environment of an arraignment part, may rely on hearsay statements contained in supporting depositions to make their qualifying offense determinations (see CPL 70.10 [2]). In other words, courts need not always conduct a full-fledged hearing with testimony and witnesses, as was required under the circumstances present here (see e.g. People v Garcia, 67 Misc 3d 511 [Crim Ct, Bronx County 2020] [hearing not required under CPL 530.60 to determine whether bail could be set on a defendant at liberty on a qualifying offense]). In many cases, a simple review of accusatory instruments and depositions should be enough.{**70 Misc 3d at 615}^[FN*]

In any event, the "qualifying offense" determination having been made, the court turns next to the issue of bail. The court is mindful of the factors set forth in CPL 510.30 for setting bail, including, as pertinent here, the charges facing the defendant, his prior criminal record, his activities and history, and his limited financial resources (see CPL 510.30 [1] [a], [b], [c], [f]). The court is also aware of the mandate to abide by the least restrictive method for ensuring the defendant's return to court (CPL 510.30 [1]). However, evidence of the defendant's three prior felony convictions and prior probation delinquency convinces the court that bail is the least restrictive method for securing the defendant's return to court notwithstanding other factors militating in favor of his release on lesser restrictions. Therefore, the court, bearing in mind the defendant's limited financial circumstances, sets bail in the amount of $1,000 cash, $1,000 insurance company bond, or $2,000 partially secured surety bond with a 10% deposit.