Supreme Court, New York County, March 15, 2021

Cyrus R. Vance, Jr., District Attorney (MarLa Duncan of counsel), for plaintiff.

New York County Defender Services, New York City (Brad Sage of counsel), for defendant.

The defendant stands charged with burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (Penal Law § 155.30 [1]), offenses which do not qualify for bail (CPL 510.10 [4]). He appeared on February 11, 2021, pursuant to a bench warrant, issued when he failed to return to court on December 10, 2020. The defendant had failed to come to court when directed on several prior occasions. The People requested the court find the defendant had persistently and willfully failed to appear, and set bail. The defendant argued that the People failed to prove his absences were willful, as required under the statute (CPL 530.60 [2] [b]).

CPL 530.60 contains three mechanisms by which a defendant's securing order may be revoked.^[FN1] The mechanism relevant to these proceedings, CPL 530.60 (2) (b), authorizes a court to revoke a securing order after a hearing when there is clear and convincing evidence that a defendant at liberty has persistently and willfully failed to appear. A court is limited to considering "relevant, admissible evidence." (CPL 530.60 [2] [c].) The defendant may cross-examine witnesses and present his own "relevant, admissible evidence." The statute also explicitly permits a court to receive a transcript of grand jury testimony in lieu of a witness's appearance. Upon a finding of clear and convincing evidence, a court may revoke a defendant's securing order and issue a new order fixing bail (CPL 530.60 [2] [d] [ii]). [*2]The court took judicial notice in the instant case of its own prior proceedings (People v Byrd, 57 AD3d 442, 443 [1st Dept 2008]). The court reviewed the defendant's record of failing to appear, and gave both parties further opportunity to be heard.{**71 Misc 3d at 709} Defense counsel argued to the court that the defendant's absences were not willful, but were the result of hospitalizations and the defendant's chronic homelessness. However, he offered no admissible evidence in support of these bald assertions.

After the hearing, the court found clear and convincing evidence that the defendant had persistently and willfully failed to appear after notice of scheduled appearances and set bail in the amount of $5,000 cash, $5,000 insurance company bond, or $7,500 partially-secured bond. The court now issues the following written decision, explaining its findings of fact and conclusions of law.

Findings of Fact

The course of this case has been long and complicated by upheaval in the court process by the coronavirus pandemic. The litany of adjournments are as follows:

• January 7, 2020: After being found fit following a CPL article 730 examination, the defendant was arraigned in Supreme Court. The defendant was released under supervision and directed to return to Part 92 on January 27, 2020, to be screened for possible diversion.

• January 27, 2020: The defendant failed to appear for his diversion court assessment. Pursuant to CPL 510.50 (2), the court adjourned the matter for the defendant to appear, prior to issuing a bench warrant.

• January 30, 2020: The defendant failed to appear. The court issued a bench warrant.

• February 14, 2020: The defendant was involuntarily returned on the January 30th warrant and was rejected from the diversion program. The defendant was returned to release under supervision, and directed to return to Part 31 on February 25, 2020.

• February 25, 2020: The defendant failed to appear. The court put his attorney on notice, pursuant to CPL 510.50 (2), that a bench warrant would be ordered on February 27, 2020, if the defendant did not appear.

• February 27, 2020: The defendant failed to appear. The court ordered a second bench warrant.

• March 16, 2020: The defendant was involuntarily {**71 Misc 3d at 710}returned on the warrant. The court released him, but he was directed to return on March 19, 2020, for a hearing pursuant to CPL 530.60.

• March 19, 2020: The courts were closed, beginning March 17, 2020, due to the onset of the coronavirus pandemic. It is unknown whether the defendant made any effort to appear.

• August 10, 2020: The court calendared the case for its first appearance since March 19, 2020. The defendant failed to appear. Defense counsel stated that neither the defendant nor counsel had been informed of the new date. The court directed counsel to inform his client to appear on September 4, 2020.

• September 4, 2020: The defendant failed to appear. Defense counsel stated that he had spoken with a doctor who informed him the defendant was in the hospital. No written documentation was provided. The court directed counsel to inform his client to appear on September 29, 2020.

• September 29, 2020: The defendant failed to appear. Defense counsel had no contact [*3]with the defendant. The court found the defendant's absence willful and issued a third bench warrant.

• October 28, 2020: The defendant was involuntarily returned to court on the warrant. The court released him on the condition that he provide a valid email address for notification of court dates and contact with his attorney. The court also directed him to return on November 10, 2020.

• November 10, 2020: The defendant failed to appear. Defense counsel informed the court that the email address provided by the defendant did not work. The court found that the defendant's failure to appear was willful and ordered a fourth bench warrant.

• December 10, 2020: The defendant was not present. The court, proceeding in his absence, issued a decision on defense counsel's previously-filed omnibus motion.

• January 29, 2021: The defendant was arrested on a new offense, but not produced to court for return on the warrant. Due to pandemic-related{**71 Misc 3d at 711} court congestion, the earliest the Department of Corrections could produce the defendant was February 11, 2021.

• February 11, 2021: The defendant was returned on the warrant by the Department of Corrections. The court held the instant hearing.

It is in light of these facts that the court must consider whether the defendant has persistently and willfully failed to appear after notice of scheduled appearances.

Persistently

The Criminal Procedure Law does not define what it means to "persistently" fail to appear. Where the legislature has not defined a term, courts must "construe words of ordinary import with their usual and commonly understood meaning," using "dictionary definitions as 'useful guideposts' in determining the meaning of a word or phrase" (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 [2001]). It has long been held that where the words have "a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Tompkins v Hunter, 149 NY 117, 122-123 [1896]).

Defense counsel argues that "persistently" means multiple absences. Under this definition, the defendant has been persistently absent, even if the court discounts periods of absence that may be attributable to COVID-related confusion. On January 7, 2020, he was directed by the court to appear in Part 92 for diversion screening on January 27, 2020, and he failed to appear. After he was returned on a warrant to Part 92 on February 14, 2020, he was directed by the judge to return on February 25, 2020, and failed to do so. He was present in court on October 28, 2020, and directed to return on November 10, 2020, and failed to do so.

Moreover, dictionary definitions of "persistently" suggest that the word encompasses both repeated conduct and prolonged conduct:

• Google.com: "in a persistent manner; continuously" (OxfordLanguages, persistently [https://www.google.com/search?q=persistently&oq=persistently&aqs=edge..69i57j0l2j69i60l3j0.4253j0j1&sourceid=chrome&ie=UTF-8] [Google Search] [last accessed Mar. 4, 2021]).

• Dictionary.com: "lasting or enduring tenaciously {**71 Misc 3d at 712}[or] constantly repeated; continued" (Dictionary.com, persistent [https://www.dictionary.com/browse/persistently] [last accessed Mar. 4, 2021]).

• Oxford: "in a way that continues for a long period of time, or that is repeated frequently, especially in a way that is annoying and cannot be stopped" (Oxford Learner's Dictionaries, persistently [https://www.oxfordlearnersdictionaries.com/us/definition/english/persistently?q=persistently] [last accessed Feb. 11, 2021]).

• Merriam-Webster: "existing for a long or longer than usual time or continuously" (Merriam-Webster Online Dictionary, persistent [https://www.merriam-webster.com/dictionary/persistently] [last accessed Feb. 11, 2021]).

• Cambridge: "happening repeatedly or for a long time, or difficult to get rid of" (Cambridge Dictionary, persistently [http://dictionary.cambridge.org/us/dictionary/english/persistently] [last accessed Feb. 11, 2021]).

There are no bright-line rules for how many failures to appear, or how long a failure to appear, will satisfy the statute. For legal guidance, however, the court refers to existing criminal statutes dealing either with the word "persistent" or with the defendant's prolonged failure to appear. First, the legislature has defined a "persistent" felon as one who, under appropriate conditions, commits three or more felonies (Penal Law §§ 70.08, 70.10). It may be inferred from this that three or more failures to appear in court when directed would be persistent. Second, in enacting bail jumping statutes, the legislature has criminalized a failure to appear for 30 days or longer (Penal Law §§ 215.55, 215.56, 215.57). The court, therefore, can safely infer that an absence of 30 or more days would be longer than acceptable or "persistent." Here, the defendant was told on October 28, 2020, to return to court on November 10, 2020. He was rearrested on January 19, 2021—nearly two months after failing to appear. This is well beyond the statutory period to be held criminally liable for bail jumping.

Willfully

In enacting CPL 530.60 (2) (b), the legislature failed to define what it means for a defendant to "willfully" fail to appear in court when directed. "Willful . . . is perhaps the most conflated, confusing, and confounding of all criminal mental states" (Andrew M. Stengel, Note, Criminal Culpability's Wild {**71 Misc 3d at 713}Mens Rea: Use and Misuse of "Willful" in the Laws of New York, 4 Alb Govt L Rev 779 [2011]). The legal history of the term "willful" demonstrates "that it does not have a single meaning; rather, its meaning must be discerned by the context of the statute in which it is used" (William C. Donnino, Supp Practice Commentary, McKinney's Cons Laws of NY, Penal Law § 15.00).

The present context is the determination whether a litigant, who had notice of his obligation to return to court, nonetheless disregarded that obligation. The court analogizes this situation to "[w]ilful disobedience to its lawful mandate" (Judiciary Law § 750 [A] [3]). In such cases, "knowingly failing to comply . . . gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance" (Dalessio v Kressler, 6 AD3d 57, 66 [2d Dept 2004]; see also People v Coe, 71 NY2d 852, 855 [1988] [interpreting "wilfully" to mean "knowingly"]). On at least three occasions the defendant was personally informed of his obligation to return to court on a subsequent date. Once, the court insisted the defendant provide an email address on the record, where he could receive further notice. The defendant provided an email address to the court, which he knew was for that purpose. Defense counsel subsequently informed the court that the address was not valid. The defendant has never returned to court without being brought in by law enforcement. The court finds the defendant's knowing failure to return to court gives rise to an inference of willfulness, which was [*4]unrebutted.^[FN2]

Conclusion

After conducting a revocation hearing pursuant to CPL 530.60 (2) (c), the court finds 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 defendant failed to return to court on January 27, 2020, and February 25, 2020, despite being personally informed of those scheduled appearances in open court. Assuming, arguendo, that the People have failed to demonstrate by clear and convincing evidence that the defendant{**71 Misc 3d at 714} had notice of the scheduled court dates after the onset of the coronavirus pandemic, he was involuntarily returned to court on October 28, 2020, and personally informed of his scheduled November 10, 2020 appearance, which he failed to make. This third failure to appear lasted 80 days before the defendant was arrested for a new offense and returned to court pursuant to a bench warrant.

The court therefore orders that the defendant's securing order be revoked, and issues a new securing order, setting bail in the amount of $5,000 cash, $5,000 insurance company bond, or $7,500 partially-secured bond at 10%. This constitutes the least restrictive alternative to insure the defendant's return to court (see CPL 510.10 [1]).