County Court, Essex County, May 19, 2022

Gerard V. Amedio, Saratoga Springs, for defendant.

Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for plaintiff.

Application by the defendant for release on his own recognizance or on reasonable bail while an action is pending in local criminal court (CPL 510.30).

The court has considered the following papers: notice of motion dated May 12, 2022, [*2]and unsworn application of Gerard V. Amedio, Esq., dated May 12, 2022, with copies of two pending felony complaints charging the defendant with the crimes of assault in the second degree (Penal Law § 120.05 [2]), a class D violent felony, and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), a class D felony, all in support of the motion; and an affirmation of Michael P. Langey, Esq., dated May 16, 2022, with exhibits consisting of the supporting depositions of Jonathan W. Ordway and the alleged victim, Zachary M. Morgan, dated May 10 and 11, 2022, respectively, and the report of the defendant's criminal history prepared and maintained by the New York State Division of Criminal Justice Services, all in opposition to the motion.

The charges arise out of an incident alleged to have occurred on May 10, 2022, in the town of Moriah, Essex County, New York, when defendant is claimed to have used a shovel to strike Morgan in the back of the head causing physical injury or serious physical injury to Morgan, after which the defendant fled the scene without rendering aid to Morgan. There is no allegation by his attorney that the defendant contacted emergency personnel so that aid could be dispatched.

The defendant apparently was arraigned in local criminal court and remanded to the custody of the Essex County Sheriff without bail due to his criminal history of two prior felony convictions, one in 2005 for the class E felony offense of driving while intoxicated and the second for attempted burglary in the second degree, a class D violent felony, in 1997. No copy of the local criminal court securing order has been furnished.{**76 Misc 3d at 293}

CPL 530.30 authorizes a superior criminal court to issue a securing order upon application of a defendant when a criminal action is pending in local criminal court and certain circumstances exist, one of which is that the local criminal court lacks authority to order the defendant's release on recognizance with or without non-monetary conditions or on bail because the defendant has two prior felony convictions (CPL 530.20 [2] [a]; 530.30 [1]). In considering any application for a securing order, a "court must, on the basis of available information, consider and take into account information about the [defendant] that is relevant to the [defendant's] return to court, including," inter alia, the defendant's activities, history and criminal conviction record, if any, as well as the charges against him/her (CPL 510.30 [1]).

Initially, the application here must be summarily denied due to the failure of defendant's counsel to provide a supporting affidavit or affirmation. The unsworn statement of counsel is a nullity. The practice of law has not descended and regressed to a state in which court orders are obtained merely by the asking through unsworn correspondence to the court lacking factual information justifying judicial action. Court orders are serious matters which require justification from factual circumstances expressed in sworn form. This is no less true for securing orders (CPL 500.10 [5]) which require a balancing of a defendant's liberty against the public interest. Indeed, the CPLR requires that court orders in civil actions and proceedings be obtained by a motion, defined as "an application for an order" (CPLR 2211), which includes "supporting affidavits" (CPLR 2214 [b]), and the CPL requires a defendant's pretrial motions to include affidavits as well (see CPL 255.20 [2]). It is axiomatic that applications in a criminal action for other court orders, whether by a defendant or by the prosecution, require or permit no less of [*3]a standard for judicial consideration and action.

Moreover, defense counsel's filing of a notice of motion providing the prosecution with a response time of only one business day between the date of filing and the return date does not afford the prosecution reasonable opportunity to investigate the defendant's "activities and history" (CPL 510.30 [1] [a]). Although the Criminal Procedure Law does not contain provisions similar to those in CPLR 2214 (b) setting forth the minimum required time for which notice must be furnished to the opposing party or attorney prior to the return date so that{**76 Misc 3d at 294} responsive papers may be served prior to the court's consideration and decision, a period of one day to respond to a motion is patently unreasonable and insufficient notice unless set by a court in an order to show cause based upon sworn allegations of fact justifying a real need for expedited judicial intervention and a truncated response time for the opposing party. No such facts have been presented here.

Finally, the unsworn application here is deficient in providing information on the defendant's activities, history, and individual financial circumstances (CPL 510.30 [1] [f]).

For these reasons, the application must be and hereby is denied.