City Court of Cohoes, February 9, 2024

P. David Soares, District Attorney (Jacob Sheingold of counsel), for the People.

Stephen W. Herrick, Public Defender (Ryan Larose and Kelly Vidur of counsel), for defendant.

In 2019, the New York State Legislature passed "bail reform," limiting the crimes for which bail could be set to a select category of "qualifying offenses." (See CPL 510.10 [4].) For the most part, the overhaul was comprehensive and exhaustive, and included conforming amendments throughout the Criminal Procedure Law designed to ease implementation of the reforms (see e.g. CPL 150.20 [appearance tickets]). An exception is the procedure for disposing of felony complaints following a preliminary hearing. (See CPL 180.70.) That remained intact—a court is still required to "hold" a defendant for action of the grand jury if the People establish reasonable cause to believe that a felony was committed. (See CPL 180.70 [1].) But what happens if that felony is not a qualifying offense for purposes of pretrial detention? Can a court still order a defendant to be held in jail? As it turns out, the answer [*2]depends on what the word "held" means in the context of the 2019 reforms.^[FN1]

On January 30, 2024, the defendant was arraigned on several charges, including, as pertinent here, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a controlled substance in the third and fourth degrees (Penal Law §§ 220.16 [1]; 220.09 [1]). Because the weapons charge was a "qualifying offense"—it made the defendant eligible for bail or remand (see CPL 510.10 [4] [a])—the court committed the defendant to the custody of the sheriff pending a preliminary hearing. At the hearing, the People proved up the drug charges but failed to meet their burden on the weapon charge. The defense immediately asked for a dismissal of the weapon charge and for an order releasing the defendant on the drug charges, as the drug counts did not, under{**82 Misc 3d at 1005} the circumstances, qualify for bail or remand. (See CPL 510.10 [4]).^[FN2] The court agreed and released the defendant with an electronic monitor.

The People objected. They reasoned that, in order to hold a defendant "for action of the grand jury," they were only required to prove that the defendant committed "a felony." In a sense, the People are correct. CPL 180.70 (1) provides that if "there is reasonable cause to believe that the defendant committed a felony, the court must . . . order that the defendant be held for the action of a grand jury." So, the People are right—if they prove that a defendant committed a felony, the court must order the defendant "held" for action of the grand jury.

But what does "held" mean? The People insist that it admits of only one conclusion—a defendant must stay in jail pending grand jury action. However, the People read the phrase without regard to the impact of bail reform. True, "being held" has seemingly always meant detention pursuant to a securing order. Yet that does not make "being held" synonymous with jail. In fact, article 180 of the Criminal Procedure Law does not define the phrase "held for the action of a grand jury," and, when it is mentioned, it is usually without reference to securing orders or jail. (See CPL 180.10 [1] [being held for action of the grand jury described, without elaboration, as the "primary purpose" of the "proceedings upon (a) felony complaint," which is to determine whether the defendant "is to be held" for action of the grand jury]; CPL 180.10 [2] [describing defendant's right to challenge whether there is "sufficient evidence to warrant the court in holding him for the action of a grand jury"].) By the same token, CPL 180.10 (6), which alludes to securing orders, resists the impulse to equate being "held for the action of a grand jury" exclusively with a defendant who is in jail.

There is probably sound reason for that. When the Criminal Procedure Law was first enacted, it was obvious that to "hold" a defendant meant to jail them, so the Legislature would have had no reason to spell it out. But that was prior to bail reform, at a time when a court had only two choices when it came to securing orders: release on recognizance or remand to the [*3]sheriff with or without bail.^[FN3] There was no option to release a{**82 Misc 3d at 1006} defendant with lesser restrictions—at least not statutorily, although courts could, and often did, improvise various species of conditional release. Regardless, prior to 2020, "held for the action of a grand jury" could, by statute, only mean sending a defendant to jail.

That changed with the 2020 reforms. The reforms narrowed the category of offenses eligible for bail but expanded the options for conditional release, including securing orders that entailed the imposition of "non-monetary conditions," such as electronic monitoring. Further, in recognition of the profound restrictions inherent in some forms of conditional release, the Legislature explicitly required preliminary hearings for defendants released on electronic monitors. (See CPL 510.40 [4] [d].) The upshot is that the phrase "held for the action of a grand jury"—which had previously meant defendants in jail—now includes those who were released with electronic monitors, which embraces all felonies, whether bail eligible or not (see CPL 500.10 [21]). Bail reform thus gives the person released to electronic monitoring the same right to a preliminary hearing as the detainee stuck in jail. For resolution of the issues presented in this case, that means that both are considered "held." It also means that to be "held" does not necessarily mean being detained in jail, as the People contend.

The enlargement of what it means to be "held" in custody refocuses the dilemma posed at the outset of this decision—namely, how are felony preliminary hearings to be resolved in light of the 2019 bail amendments? Specifically, may a court order a defendant "held" in jail pending grand jury action irrespective of whether the offense qualified for bail or remand, or must it abide the categories of bail eligible offenses set forth in CPL 510.10 (4)? The answer appears to be the latter. If so, that means that, when conducting a preliminary hearing, a court cannot simply determine that the defendant committed a felony and dispatch him or her to the custody of the sheriff accordingly. It must now conduct a two-part inquiry. First, it must decide whether the defendant committed a felony. If the answer is no, then the court must release the defendant on his or her own recognizance (ROR) and dismiss the charge, as had been the case before bail reform. (See CPL 180.70 [4].) On the other hand, if the court determines that the defendant committed a{**82 Misc 3d at 1007} felony, then the court must order the defendant "held for the action of a grand jury." (CPL 180.70 [1].)

That does not end the matter, however. The second part of the inquiry requires effectuating "held for the action of a grand jury" in the context of the bail-eligibility of the felony that was proved. If the felony qualifies for bail or remand, then the court must, as under pre-bail reform law, commit the defendant to the sheriff. (CPL 180.70 [1].) If, however, the felony offense does not qualify for bail, then the court must fix an appropriate non-carceral securing order, such as electronic monitoring, ROR, or release on conditions.^[FN4]

What a court cannot do is what the People urge in this case—order the defendant to remain in jail on a charge for which pretrial detention was not authorized in the first place. That is not meant to disparage the People's position. After all, the plain wording of CPL 180.70 seems to suggest that, in determining whether a defendant should be "held for the action of a grand jury," any felony will do. The flaw in the People's argument is that bail or remand eligibility remains the province of title P of the Criminal Procedure Law (i.e., CPL arts 510, 520, 530), as most courts have conceded (but see People v Johnston, 67 Misc 3d 267 [Cohoes City Ct 2020]).^[FN5] Further, while felony hearings are designed as a check on the authority to keep a defendant in jail pending grand jury action (see Matter of Pelton v Crummey, 156 AD3d 1305, 1306 [3d Dept 2017]), they do not supplant title P as the sole arbiter of bail eligible offenses. In other words, the outcome of a preliminary hearing cannot transmute a charge that does not qualify for pretrial detention into a charge that does. As such, where, as here, the{**82 Misc 3d at 1008} only charge proved at a preliminary hearing is a "non-qualifying" offense, a court cannot simply commit the defendant to the sheriff's custody, blithely ignoring the fact that the felony proved at the hearing was not eligible for remand or bail. Rather, it must "hold" the defendant in light of the bail statutes, which means that, for "non-qualifying" offenses, the court must either release the defendant on recognizance or conditions, or require the defendant to wear an electronic monitor (see CPL 500.10 [21]).

Once the impact of bail reform is acknowledged, the resolution of this case becomes academic. Here, the People failed to prove the qualifying offense (the gun charge) but satisfied their burden with respect to the non-qualifying offense (the drug charges). Therefore, the gun charge must be dismissed (see CPL 180.70 [4]). On the drug charge, however, the defendant is ordered held for action of the grand jury. Further, given that the drug felonies do not qualify for bail or remand, the court cannot permit the defendant to remain in jail but may, under the circumstances, order the defendant to be released with an electronic monitor. Given the defendant's criminal history and the nature of the offenses as set forth during these proceedings, the court has determined that electronic monitoring is appropriate. That was, and remains, the order of the court.

"[w]hen a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff."