The defendant, who is charged with Assault in the First Degree (PL § 120.10[1]), Criminal Contempt in the Second Degree (PL § 215.50[3]), and other related offenses, moves for an "Emergency Liberty Application Pursuant to CPL 180.80," seeking immediate release on his own recognizance.^[FN1] Having reviewed the motion papers, the People's comprehensive response, and the exhibits submitted, the defendant's motion is denied.

On August 22, 2025, the defendant was arraigned on a felony complaint, docket CR-026080-25NY, charging him with Rape in the First Degree (PL § 130.35[2][b]) and other related offenses. Bail was set. The defendant posted bail.

On August 31, 2025, the defendant was arraigned on the instant felony complaint charging the defendant with Assault in the First Degree (PL § 120.10[1]), Criminal Contempt in the Second Degree (PL § 215.50[3]), and other related offenses. He was remanded to custody.

Both cases involve allegations against the same complainant.

On August 31, 2025, defense counsel, both orally and via email, agreed to waive CPL 180.80 and 30.30 time through September 12, 2025, to allow for further investigation (see People's Response at ¶ 6; see People's Exhibit 1).

On September 11, 2025, the People and defense engaged in negotiations where the [*2]People agreed to join the defense in requesting a bail package involving a $100,000 bond, electronic monitoring and passport surrender in lieu of proceeding to a preliminary hearing (see People's Response at ¶ 7).

According to the People, defense counsel subsequently contacted ADA Curzer and indicated that he would no longer accept the bail package that was previously discussed (see People's Response at ¶ 8).

During a phone call later that same day, the People advised defense counsel that they were prepared to answer ready for a preliminary hearing. However, in the alternative, the People would forgo commencing the preliminary hearing on the condition that the defense agree to a change in bail conditions requiring the defendant to surrender his passport and submit to electronic monitoring but not requiring him to pay any bond (see People's Response at ¶ 9).

According to the People, defense counsel orally indicated agreement to the latter option (see People's Response at ¶ 10).

On September 11, 2025, at approximately 5:40 PM, ADA Curzer emailed defense counsel confirming the agreement they had reached over the phone, and defense counsel responded within minutes, indicating agreement (see People's Response at ¶ 12; see People's Exhibit 1).

On September 12, 2025, both parties appeared in court and jointly requested modification of bail conditions to electronic monitoring and passport surrender.

During the September 12 proceedings, Judge Lozano clearly and repeatedly explained that:

a. The Sheriff's Office would need to interview the defendant to determine eligibility for electronic monitoring;

b. Defendant would remain remanded until the Sheriff's Office approved electronic monitoring; and

c. The decision regarding electronic monitoring eligibility rested with the Sheriff's Office (see People's Response at ¶¶ 15-16; see People's Exhibit 4).

Defense counsel acknowledged understanding these requirements and expressed familiarity with the process based on "prior experience" (see People's Exhibit 4 — Pg. 4, Ln. 15). Defense counsel specifically stated in court that "once he is [found eligible] ... at that point in time, he will be released immediately," demonstrating awareness that release was not immediate but contingent on the Sheriff's approval (see People's Exhibit 4 — Pg. 6, Ln. 1-4).

The matter was adjourned to October 27, 2025.

Several hours after the case was adjourned, defense counsel contacted Judge Lozano via email requesting that the case be advanced to Monday, September 15, indicating that, "we were told that he would be released immediately if we agreed to surrender his passport and to an ankle monitor. now (sic) I (sic) spoke with the sheriff and said a interview would take a week or more. we (sic) were totally misinformed" (see People's Response at ¶ 19; see People's Exhibit 2).

On September 12, before the expiration of defense counsel's previous waiver of 180.80 time, the People responded to defense counsel's multiple emails. They explained that they had been prepared to proceed with a preliminary hearing but that, based on defense counsel's prior representations, they had dismissed their witnesses (see People's Response at ¶ 21; see People's Exhibit 3).

On Monday, September 15, 2025, defense counsel filed the instant "Emergency Liberty Application."

Pursuant to CPL 180.80, if a defendant has been held in custody on a felony complaint for more than 120 hours, or for more than 144 hours if a weekend day or holiday occurs during the period of custody, the court, on the defendant's application, must release the defendant on his or her own recognizance if a preliminary hearing has not been waived or commenced (CPL 180.80). However, this requirement does not apply when "the failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action, or condition, or occurred with his consent" (CPL 180.80[1]; see generally, People ex rel. Martinez v. Warden of Queens House of Det., 173 Misc 2d 91 [Sup. Ct. Queens Co. 1997]).

The defendant argues that his agreement to bail modification was not a knowing and voluntary waiver because the prosecution failed to disclose the Sheriff's interview requirement. This argument fails for several reasons:

First, the court record conclusively establishes that defense counsel was fully informed of all material conditions before consenting to the bail modification. The September 12 transcript shows that Judge Lozano explained the Sheriff's Office requirements three separate times during the proceedings (see People's Exhibit 4).

Second, defense counsel not only acknowledged understanding these requirements but claimed familiarity with the process. When asked about electronic monitoring procedures, counsel stated: "from what I understand based on my prior experience dealing with, you know, being in this field, they will provide accordingly" (People's Exhibit 4 — Pg. 4, Ln. 15-19).

Third, defense counsel's own statements demonstrate awareness that release was contingent: "once he is [found eligible] ... at that point in time, he will be released immediately" (People's Exhibit 4 — Pg. 6, Ln. 1-3).

The Court finds defense counsel's current claims of surprise and lack of knowledge directly contradicted by the record. A waiver need not be perfect to be valid—it must be knowing, voluntary, and intelligent based on the circumstances (ex rel. Martinez v. Warden of Queens House of Det., 173 Misc 2d at 92; and see People v. Callahan, 80 NY2d 273, 283 [1992]; and People v. Calvi, 89 NY2d 868,871 [1996]).Here, defense counsel was explicitly informed by the Court of the material conditions and chose to proceed.

The Court acknowledges that defense counsel may have initially been surprised by the practical realities of the Sheriff's approval process timing. However, the critical legal question is whether the waiver was made knowingly and voluntarily at the time it was executed. The transcript demonstrates that all material conditions were disclosed in open court before defense counsel's final consent.

Even if the Court were to find the waiver invalid, the People would be entitled to a good cause extension under CPL180.80(3). The record establishes that:

1. The People were prepared to commence a preliminary hearing on September 12, 2025;

2. Law enforcement witnesses were notified and present at the DA's office;

3. The People only dismissed witnesses after defense counsel agreed to bail modification on the record;

4. The delay in commencing a preliminary hearing was directly due to the defendant's [*3]action and agreement.

The defendant's assertion that the People possess substantial exculpatory evidence does not impact the 180.80 analysis. The existence of potentially exculpatory evidence is a matter for trial or plea negotiations, not grounds for mandatory release under the statute (see generally, People v. Weston, 66 Misc 3d 785 [Crim. Ct. Bx. Co. 2020]). Moreover, the People have represented that this evidence was already considered in their decision to agree to electronic monitoring rather than proceeding immediately to a preliminary hearing.

Based on the foregoing analysis, the defendant's Emergency Liberty Application is DENIED.^[FN2]

This is the decision and order of the court.