Criminal Court of the City of New York, Bronx County, December 30, 2020

Darcel D. Clark, District Attorney (Anthony Perrotto of counsel), for plaintiff.

Bruce Klein for defendant.

Defendant herein stands charged with a felony sex offense against a child. He was arrested and held in on bail at a time when no grand juries were sitting in this county due to the COVID-19 pandemic. The People requested a good cause extension—of indefinite duration—of their CPL 180.80 deadline, arguing that the interests of justice precluded having the child testify at a preliminary hearing. For the reasons stated herein, a good cause extension is granted for a limited period only.

Defendant was arrested December 2, 2020, and arraigned December 4, 2020, on a felony complaint charging him with rape in the first degree (Penal Law § 130.35 [4]), and various related lesser charges, based on allegations that he engaged in sexual acts with a 12-year-old girl, a stranger whom he met in a park and took to a motel and then to his home. Bail was set,{**72 Misc 3d at 173} and the case adjourned to December 8, 2020, for the defendant to be released unless the prosecution satisfied one of the statutory requirements allowing for his continued detention. (See CPL 180.80.) The case was advanced to December 7, 2020, at the prosecution's request so they could make a good cause application to extend the defendant's detention. (See CPL 180.80 [3].)

The People's argument in court on December 7, 2020, in support of their good cause application was based on the fact that grand juries had been suspended in Bronx County due to the pandemic, and it was not known when they would resume. It was therefore, through no fault of the People, impossible to present the case to a grand jury in time to meet the 180.80 deadline. Significantly, however, the People were clear that they were not requesting an extension of time [*2]for the purpose of conducting a probable cause hearing (see CPL 180.10 [2]; 180.60), but rather, until such indeterminate future time as the People could present the case to a grand jury.^[FN1]

Good cause was granted for one week for the parties to make written submissions on the People's application to detain defendant without a preliminary hearing. The court considered the oral arguments made on the record, and after also reviewing the written submissions of the parties and the entire court file, ruled orally from the bench, with an indication that a written decision would follow.

For the reasons stated at the bench and more thoroughly herein, the People's application is granted to the extent that the People's 180.80 deadline is extended until January 8, 2021.

In New York State, felony charges can be brought by means of a felony complaint, which is a written accusation that may be based entirely upon hearsay, and even upon vague, conclusory, unattributed allegations. (See CPL 100.15.) While a felony{**72 Misc 3d at 174} complaint can initiate a criminal proceeding, it cannot serve as a basis for prosecution. (CPL 1.20 [8].) For a felony case to advance to trial, or even resolve by guilty plea, the prosecution must first obtain an indictment, an accusatory instrument that results from a vote of a grand jury who has heard testimony and concluded that there is sufficient evidence to accuse the defendant of a crime. (CPL 1.20 [3]; 190.65.)^[FN2]

A felony complaint allows a defendant to be held in custody for only a limited amount of time. A defendant cannot be held in custody beyond a maximum of 144 hours (exactly six days, to the hour) from the time of arrest on the basis of a felony complaint alone. (CPL 180.80.) The time limit prescribed by CPL 180.80 is measured in hours, not days, and appellate courts have made clear that the statute "means what it says, and cannot be made subject to judicial construction translating the given hourly time frame into a less exacting interval." (People ex rel. Arshack v Koehler, 151 AD2d 309, 310 [1st Dept 1989].) "[W]here the People seek even a brief enlargement of the applicable hourly period, they must advance 'good cause,' which does not mean the 'imminence' of an indictment, standing alone, as the basis for a routine extension until the close of the same business day." (Id.)

In order to justify continued detention beyond the limited period allowed by the statute, [*3]the People must secure a grand jury indictment, or alternatively obtain a ruling from a judge, after presenting evidence at an adversarial hearing, that there is reasonable cause to hold the defendant for up to 45 days until the case can be presented to a grand jury. (See CPL 180.60, 180.70, 190.80.) In either case, the government must demonstrate to a neutral decision-maker that it has sufficient evidence to accuse the defendant of a crime in order for the defendant to continue to be held in jail.

The one exception permitted by CPL 180.80 allows a court to continue the defendant's detention beyond 144 hours, without the commencement of a preliminary hearing or the voting of a grand jury indictment, where

"[t]he court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded disposition{**72 Misc 3d at 175} of the felony complaint within the prescribed period or rendered such action against the interest of justice." (CPL 180.80 [3].)

The People in this case urge that the interest of justice exception pursuant to CPL 180.80 (3) should be interpreted broadly—indeed, broadly enough to permit, in effect, indefinite detention.

This case occurs amidst an unprecedented public health crisis caused by the COVID-19 pandemic. On March 7, 2020, nine months before the defendant's arrest in this case, the Governor declared a state of emergency in New York in response to surging infection rates. (Executive Order [A. Cuomo] No. 202 [9 NYCRR 8.202].) Shortly thereafter, the state's Chief Judge and Chief Administrative Judge issued administrative orders limiting court operations statewide to "essential business" (see Admin Order of Chief Admin Judge of Cts AO/68/20 [Mar. 16, 2020] ["Effective 5 p.m. on Monday, March 16, all non-essential functions of the courts will be postponed until further notice"]; Admin Order of Chief Judge AO/3/20 [Mar. 17, 2020]; Admin Order of Chief Admin Judge of Cts AO/78/20 [Mar. 22, 2020]). Pursuant to the Chief Administrative Judge's order of March 16, 2020, no new grand juries would be empaneled. (AO/68/20.)

On March 20, 2020, the Governor issued an executive order suspending "any specific time limit . . . prescribed by the procedural laws of the state, including but not limited to the criminal procedure law" for 30 days. (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8].) This suspension was subsequently extended, in 30-day increments, several times, although with some modifications. With respect to CPL 180.80 specifically, on May 7, 2020, the continued tolling of CPL 180.80 was limited

"to the extent that a court must satisfy itself that good cause has been shown within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision three of such section." (Executive Order [A. Cuomo] No. 202.28 [9 NYCRR 8.202.28].)

The May 7, 2020 extension also modified the continued tolling of CPL 190.80{**72 Misc 3d at 176}

"to the extent that a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint beyond forty-five days due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision b of such section provided that such defendant has been provided a preliminary hearing as provided in section 180.80." (Id. [emphasis added].)

These provisions have been extended and remain in [*4]effect currently. (See Executive Order [A. Cuomo] Nos. 202.87 [9 NYCRR 8.202.87], 202.90 [9 NYCRR 8.202.90].)

Pursuant to the Chief Judge's phased reopening plan for the courts, and in keeping with decreasing infection rates, grand juries ultimately resumed beginning July 13, 2020, in some parts of the state. In Bronx County, the first grand jury since March was empaneled on August 10, 2020. However, due to a subsequent rise in infection rates, grand juries were again suspended in Bronx County in late November 2020, and none were sitting at the time of defendant's arraignment in this case.

The requirement enunciated by CPL 180.80 that a defendant not be held longer than 144 hours unless an indictment is obtained or a probable cause hearing held, although a statutory rule, gives effect to a vital constitutional right. The Fourth Amendment requires a determination of probable cause as a prerequisite to extended restraint of liberty following arrest. (Gerstein v Pugh, 420 US 103 [1975].) Whatever procedure a state may employ, be it grand jury or adversarial hearing or other judicial determination, and whatever specific time period in which the state requires this be done—in New York, 144 hours—the state "must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint." (Id. at 125.)

Even while acknowledging the challenges that CPL 180.80 imposes upon prosecutors, the Court of Appeals has affirmed that such challenges provide no cause to diminish a defendant's legal rights. The Court explicitly refused to "give legal effect to the practical difficulties the prosecution may encounter in satisfying its obligations under CPL 180.80." (People v Evans, 79 NY2d 407, 414 [1992]; see also People v Coaxum, 164 Misc 2d 458, 461 [Sup Ct, Bronx County 1995].)

Although CPL 180.80 rights are statutory, the statute gives effect to the core constitutional principle that the government{**72 Misc 3d at 177} may not deprive a person of liberty without due process of law. It is a deeply rooted and cherished principle of American law that no one may be subject to indefinite detention without being formally charged. (Cf. Ajayi v I.N.S., 962 F2d 13 [9th Cir 1992] [table; text at 1992 WL 92785, 1992 US App LEXIS 23441 (1992)] [detention without charge in home country recognized among grounds for asylum]; Mulanga v Ashcroft, 349 F3d 123 [3d Cir 2003] [same].) A felony complaint is not a formal charging document. (CPL 1.20 [8].)

The law does, however, allow flexibility in the interests of justice. The People persuasively elucidate the damage that is likely to be suffered by a child who is made to testify at an adversarial proceeding, subject to cross-examination, in front of the man who has reportedly raped her. While such testimony would of necessity happen at trial, months or a year in the future, to require it only days after the child has allegedly been rescued from her abductor and reunited with her family would be inhumane and contrary to the spirit of our laws meant to protect child victims.

However, so, too, would we subvert the spirit of our laws if we allowed an allegation of a shocking and inflammatory nature to upend one of our most sacred constitutional principles by allowing a person to be held in jail, indefinitely, without one shred of evidence being shown to an impartial body. In a case of child sexual abuse, therefore, where there is no grand jury empaneled within the 180.80 window, a good cause extension may be granted if the People can [*5]identify a definite date by which either a grand jury is reasonably expected to be empaneled, or by which additional evidence (such as DNA evidence, for example) is expected to be available that could vitiate the need for the child's testimony at a hearing.^[FN3] Barring such an anticipated date within a reasonable time, the People would have to evaluate whether the complainant in the particular case is individually able to withstand the preliminary hearing process, with or without accommodations,^[FN4] or the court would have to consider whether a modification of the securing order (CPL 510.30) would be appropriate.{**72 Misc 3d at 178}

In this case, the People initially asked for a good cause extension for an indefinite period of time and had no information as to when a grand jury might be empaneled or when the forensic evidence would become available. Within a few days, however, by the time they submitted their written argument on December 13, 2020, the People were able to affirm that at least one grand jury was expected to be sworn on January 4, 2021. While this court would not countenance an indefinite detention, it is not unreasonable, under all of the circumstances here, to allow the People a good cause extension until January 8, 2021, which would be equivalent to the CPL 180.80 deadline from the time the new grand jury is sworn.^[FN5]