Appellate Division: Second Judicial Department

M299573

AFA/

PAUL WOOTEN, J.

2024-08020 The People, etc., respondent, v Jose Castillo, appellant. (Ind. No. 72318/2023)

DECISION & ORDER ON MOTION

Appeal from a judgment of the Supreme Court, Queens County, rendered August 14, 2024. Motion by the appellant pursuant to CPL 460.50 for a stay of execution of said judgment, and to be released on his own recognizance or, in the alternative, to fix reasonable bail.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.

"When an order pursuant to CPL 460.50 is sought as a matter of judicial discretion, the concern of the Judge or Justice to whom the application is made is to insure that the defendant will remain amenable to the order of the court determining the appeal" (People v Kern, 137 AD2d 862, 863). The factors to be considered on such application include "the defendant's character, reputation, habits and mental condition; his [or her] employment and financial resources; his [or her] family ties and the length of . . . residence in the community; his [or her] previous criminal record, if any; his [or her] previous record, if any, in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and the merit or lack of merit of the appeal and the sentence which has been imposed" (id.). "A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application" (CPL 510.30[2]). "Even though the statute recognizes that a convicted defendant is in a different position than one awaiting trial, the issue--regardless of whether recognizance or bail is sought in an ongoing criminal action or pending appeal from a judgment of conviction therein--is that of securing the defendant's future court attendance when required" (People v Kern, 137 AD2d at 863).

Here, upon consideration of the relevant factors and the likelihood of ultimate reversal of the judgment, I determine that the appellant is not entitled to release either on his own recognizance or upon the posting of bail (see CPL 460.50[1]). The appellant failed to submit sufficient documentation regarding his financial circumstances to enable an informed determination as to the appropriate amount of bail. Moreover, although the appellant has established an arguable basis for reversal of the judgment, the appellant's submissions are insufficient to demonstrate that releasing the appellant on his own recognizance or upon bail would secure his appearance upon determination of the appeal (cf. People v Kern, 137 AD2d at 864).

Accordingly, the appellant's motion is denied.

PAUL WOOTEN

Associate Justice