Supreme Court, Bronx County, July 29, 2021

Jeff Henle for petitioner.

Darcel D. Clark, District Attorney (Johnathan Vega of counsel), for respondent.

Petitioner Alvin Suber brings the instant petition for a writ of habeas corpus challenging the denial of his motion for release on recognizance in a Bronx Supreme Court Trial Part (hereinafter bail judge) on June 10, 2021. Petitioner is charged, inter alia, with sex trafficking (Penal Law § 230.34), and seeks a writ from this court effecting his release. The court's authority in this context is not to undertake a de novo reconsideration of the bail set (People ex rel. Fischetti v Brann, 166 AD3d 29, 38 [1st Dept 2018]), but to assess whether the bail judge's denial of petitioner's application for release violated the constitutional standards concerning excessive bail and/or constitutes a decision as to bail that was fatally arbitrary. (See People ex rel. Klein v Krueger, 25 NY2d 497, 499 [1969].) Upon review, the court determines that the decision denying petitioner's application for release was fully supported by the{**72 Misc 3d at 1167} record and represents a rational, fair and sound judgment that bail is justified; this decision shall not be disturbed. (See People ex rel. Rosenthal v Wolfson, 48 NY2d 230, 232-233 [1979].) On the other hand, the court also determines that the bail judge's decision to raise bail from that previously set by the arraignment judge was not lawful, and this court thereupon restores the earlier bail.

Petitioner was arraigned on this indictment on December 20, 2020, and bail was set in the amount of $100,000 cash, $200,000 insurance company bond, and $350,000 partially secured bond (10%). The case was transferred from the Arraignment Part to the Trial Part, and on May 4, 2021, petitioner's motion to reduce bail was denied by the bail judge. Thereafter, defense counsel's investigator obtained an affidavit of C.G., the complaining witness and an alleged victim of petitioner's sex trafficking operations, in which she denied that she was the victim of sex trafficking, stating that petitioner had nothing to do with her prostitution activities, and exonerating petitioner from the various actions that would have induced or contributed to her prostitution. The case was advanced from a later date in the Trial Part to June 10, 2021, upon application of petitioner's counsel, to allow the defense to make a new bail application predicated on Ms. G.'s affidavit. Defense counsel presented the affidavit as evidence purportedly [*2]exonerating petitioner and argued that petitioner should be released from custody on his own recognizance.

The People argued strenuously that petitioner's application should be denied, asserting in part that Ms. G.'s affidavit was mendacious and coerced by petitioner and in part that there existed an unusual and extensive body of evidence, including electronic evidence obtained from telephones and social media sites, that had been provided to the bail judge along with the grand jury testimony and exhibits upon application for a protective order. The ADA argued that petitioner had been arrested in Brooklyn in April 2020 for assault on Ms. G., but the prosecution was dropped by the Brooklyn DA Domestic Violence Unit because Ms. G. withdrew the charges. The ADA argued that this action by Ms. G. had been coerced by petitioner, that Ms. G.'s withdrawal of the Brooklyn charges and her current affidavit contradicting her grand jury testimony could be understood under the "coercive control" doctrine, and that her history as a victim of petitioner was characterized by criminal abuse followed by forcible manipulation to achieve recantation.{**72 Misc 3d at 1168} Regarding the protected body of evidence against petitioner, the ADA described more than a thousand intercepted telephone calls in which petitioner advanced his sex trafficking operations, encompassing the periods of April to June 2020, when petitioner was incarcerated, and June to October 2020, after petitioner was released. Other factors cited by the ADA in support of the bail set in Arraignments included a bench warrant history, a violation of parole filed in connection with these charges, a record of violent crime, and petitioner's potential exposure to enhanced violent felony offense sentencing.

It is evident from the record that the bail judge credited the ADA's arguments in response to the G. affidavit, and with the additional benefit of having reviewed other extraordinary proof of petitioner's continuing engagement in sex trafficking proffered with a protective order application, the bail judge denied petitioner's application for release, prompting the instant petition. Thereupon, without application by the People, the bail judge also announced that bail would be increased as follows: $200,000 cash, $300,000 insurance company bond, and $350,000 partially secured bond (10%). When asked by defense counsel why bail had been increased, the bail judge cited the People's detailed and credible description of petitioner's continuing and increasing involvement in sex trafficking and his coercive conduct as to Ms. G.

This court has reviewed each of the bail judge's actions separately and provides the following analysis and conclusion as to each ruling.

[1] Regarding that component of the decision that denied petitioner's application for release based on the G. affidavit, the bail court correctly viewed the recantation with suspicion. In content, it was written in a robotic fashion that suggested that Ms. G. was taking dictation, speaking as if she were checking off each box in a list delivered by the investigator. But even more compelling is the history of Ms. G.'s relationship with petitioner. Having brought an assault charge against petitioner in Brooklyn prior to this case, she was persuaded to drop those charges and force a termination of that prosecution. Our case fits a similar pattern and supports the People's proposition that petitioner exercised "coercive control" over Ms. G. negating the force of her recantation. Whereas a true recantation affidavit can constitute a fundamental change in the prospects of conviction for a prosecutor, and alone may be sufficient to warrant a reduction of bail or release on recognizance, the recantation{**72 Misc 3d at 1169} in this case merely raises a credibility issue for an ultimate factfinder. It is hardly clear that the resolution will be in petitioner's favor; more likely petitioner's hand in manufacturing this document will be evident. In this respect, therefore, the bail judge correctly determined that the G. affidavit did not [*3]strongly suggest petitioner's innocence or the likely failure of the People's case at trial. Moreover, the bail judge was apprised by the ADA that petitioner had greatly expanded his sex trafficking operations during the past year, both from jail and after his release, and that this was well documented and supported by phone calls and social media posts. Finally, the bail judge was made aware of petitioner's criminal history, involving bench warrants, violence, and coercion, also contributing to the unavoidable conclusion that he posed a significant flight risk if released. Bail was clearly indicated. Petitioner's application for release was properly denied and this aspect of the writ is dismissed.

The second component of the bail judge's decision pertains to his raising petitioner's bail after hearing the arguments on petitioner's motion for release. Initially, there is a question as to the parameters of raising bail on an individual who remains incarcerated because he has been unable to make the bail previously set. Under CPL 530.60, there are specified circumstances when the People may seek to raise bail when a criminal defendant is at liberty. There are no comparable provisions that authorize the People to seek a bail increase with respect to an incarcerated defendant—to modify the securing order holding defendant to make it more secure. Notwithstanding the absence of statutory inclusion of a right to seek an increase in bail, this court concludes that there is an inherent judicial power to maintain the integrity of court orders such as bail or any other expression of legitimate judicial authority. When the People present reliable information establishing that circumstances directly relating to bail have significantly changed in a manner that reflects an enhanced flight risk and reveals that the original order setting bail no longer reflects accurately the risk of flight, a judge may entertain a bail application by the People. (See e.g. People ex rel. Rosenthal v Wolfson, 48 NY2d 230, 233 [1979]; People ex rel. Manceri v Doherty, 192 NYS2d 140, 142 [Sup Ct, Kings County 1959].) As this is not a function of a statutory CPL provision, but rather of inherent judicial authority, the decision to entertain such an application and to act on it is not dependent upon whether defendant is incarcerated{**72 Misc 3d at 1170} or at liberty, but upon a determination that the current bail is inadequate to ensure defendant's future court attendance.

[2] In utilizing this inherent authority to hear the People's bail application for an incarcerated defendant and thereupon to raise bail, the court must ensure that it has created a record in support of its actions that is both transparent and demonstrative. Thus, it must be clear that the action taken relates to achieving the dual statutory requisites—that it is necessary to ensure defendant's continuing presence and that it constitutes the least restrictive alternative toward achieving that objective—pertaining to setting bail: "With respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal's return to court when required." (CPL 510.30 [1].) When a court is prepared to grant the People's application to raise bail as to a defendant who remains incarcerated on the original bail, the record must be clear as to why an increase satisfies that standard. The existence of a documented and significant change in circumstances, e.g., the disclosure of previously unknown facts related to the commission of the crime charged, can lay the groundwork for the People's application, but there must be accompanying explanatory details that demonstrate that a bail increase is necessary to ensure his/her presence in court and still constitutes the least restrictive alternative. Because bail was increased here in a peremptory manner, with no record made as to the inadequacy of the original bail or as to the requirement that the new bail was necessary and met the least restrictive alternative mandate, the record fails to establish a legitimate basis for increasing the bail.

Furthermore, raising bail upon application of the People requires an actual application by the People; the court must remain neutral and not act as an advocate. Increasing bail on the court's own motion is not encompassed within the inherent authority principles noted above, as entertaining a motion is quite distinct from sua sponte judicial intervention. While the People's arguments in defense of bail were powerful and persuasive, those arguments were made to support the bail set by the arraignment judge in December 2020. The People expressly did not make any request to raise petitioner's bail, and the ADA was content to oppose petitioner's effort to reduce the bail. Although defense counsel had the opportunity to present{**72 Misc 3d at 1171} his arguments in favor of defendant's release by reducing or eliminating the original bail, he did not have the opportunity to oppose the raising of bail, as he was not noticed as to that issue, and was neither heard nor accorded the opportunity to present evidence against that action. It may well be that defense counsel would have had no additional ammunition to respond effectively to the People's argument had he been given that opportunity, but the right to be heard under these precise circumstances emanates from due process, and the measure of whether a defendant has been accorded his due is not the content of his/her argument but his/her right to make it. Consequently, while this court can fully appreciate the perspective of the bail judge who heard the defense bail application and more particularly the People's overwhelming response, the decision sua sponte to raise the bail cannot be defended. Should the People believe that a bail increase now is in fact warranted, as meeting both the necessity and least restrictive alternative requirements, they are free to initiate such an application, with notice to the defense, under the judicial authority noted above.

Based on the foregoing discussion, this court declines to order a reduction of bail or petitioner's release on recognizance, but also directs that petitioner's bail set by the arraignment judge is to be reinstated: $100,000 cash, $200,000 insurance company bond, and $350,000 partially secured bond (10%).