Supreme Court, Columbia County, March 3, 2022

McCabe Coleman Ventosa & Patterson PLLC, Poughkeepsie (Steven K. Patterson of counsel), for petitioner.

Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.

The petitioner, Richard Moon, through his counsel Steven K. Patterson, brings this writ of habeas corpus seeking his immediate release pursuant to CPL 510.20 and 530.30 (1) (c), vacating the remand order of the Columbia County Court as excessive, and for an order releasing the petitioner on his own recognizance or a less restrictive alternative.

Moon was charged with criminal possession of a controlled substance in the first degree, a class A felony, in violation of Penal Law § 220.21; conspiracy in the second degree, a class B felony, in violation of Penal Law § 105.15; and two counts of criminal possession of a controlled substance in the third degree, a class B felony, in violation of Penal Law § 220.16 (1). Moon did not appear at his arraignment on June 7, 2021. He appeared on June 21, 2021, without counsel, was arraigned, and entered a plea of not guilty. He was then released on his recognizance, subject to non-monetary conditions, including: a travel restriction which provided "Not to leave Columbia County or any contiguous county without permission of the Court or the Department of Probation." On July 7, 2021, Moon appeared in court, but was unable to retain counsel and the court assigned counsel for him. On August 9, 2021, his counsel requested an adjournment of the next scheduled appearance, and the matter was adjourned to August 16, 2021. Moon's counsel appeared on August 16, 2021, and Moon did not. On August 25, 2021, defendant again failed to appear but it was reported to the court that he was in a substance abuse facility in Pennsylvania.

Following the issuance of a bench warrant, Moon was apprehended and remanded to the Columbia County Jail on September 30, 2021. On December 13, 2021, he appeared in court, with counsel, and his bail request was denied.

Moon's present counsel, who appeared with him in court on February 2, 2022, now makes this application for a writ, asserting that the remand order was excessive and that he should have been released on his own recognizance or bail. Counsel argues that not only was it error for the court to conclude that defendant "persistently and wilfully" failed to appear in court, such a finding was impermissibly made without a hearing, citing{**74 Misc 3d at 874} to CPL 530.60 (2) (c), and People ex rel. Lord v Columbia County Sheriff (73 Misc 3d 581 [Sup Ct, Columbia County 2021]).

The remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging (People ex rel. Mack v Reid, 113 AD2d 962 [2d Dept 1985]). Here, Moon is entitled to a writ of habeas corpus, as his securing order was revoked without a hearing as required by CPL 530.60 (2) (c). Although the District Attorney argues that the Judge "found" good cause to believe that defendant had persistently failed to appear, that finding must be supported by a hearing at which time defendant could present his own evidence. The statute further provides that if it is determined that defendant "persistently . . . failed to appear" a new securing order shall be made and the "court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court" following an evidentiary hearing (CPL 530.60 [2] [b] [i]; [d] [ii]; People v Leyva, 72 Misc 3d 1033 [Sup Ct, NY County 2021]).

On this record, in the court's view, to order an immediate release would be to disregard Moon's admitted violation of the terms of his June 21, 2021 release on recognizance. Accordingly, the court grants the writ with a conditional order of release unless a hearing is held in County Court on or before March 8, 2022, and is expeditiously concluded (People ex rel. Thorpe v Von Holden, 63 NY2d 546, 555-556 [1984]).

Accordingly, it is ordered, the writ is conditionally granted, with a hearing to be held in County Court on or before March 8, 2022, and if it is not so held the court directs the release of Richard Moon on his own recognizance.