People v McDermott

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[*1] People v McDermott 2006 NY Slip Op 51498(U) [12 Misc 3d 1189(A)] Decided on April 25, 2006 Criminal Court Of The City Of New York, Kings County Gerstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 25, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York


Charles McDermott, Defendant.


Michael J. Gerstein, J.

Defendant was originally arrested on February 1, 2006 under docket number 2006CK000373, and charged with menacing in the second degree (PL § 120.14(1)), menacing in the third degree (PL § 120.15), criminal possession of a weapon (a baseball bat) in the fourth degree (PL § 265.01(2)), and other related charges. The Court issued temporary orders of protection as a condition of Defendant's release on bail.

The defendant was re-arrested on April 6, 2006 under docket number 2006CK001228, and charged with criminal contempt in the second degree (PL § 215.50(3)), a class A misdemeanor, based on allegations that he violated one of the temporary orders of protection issued under the prior docket number by repeatedly ringing the complaining witness's doorbell, entering her home, and refusing to leave.

Defendant has a substantial criminal history. He is a predicate felon, having been convicted of felonies on three separate occasions, one of which was for a violent felony, robbery in the second degree (PL § 160.10). Each conviction resulted in a substantial term of imprisonment. He also has had five misdemeanor convictions, including criminal possession of a controlled substance in the seventh degree (PL § 220.03).

On the date of Defendant's arraignment on the instant arrest for criminal contempt, the complaining witness was present in court. The Assistant District Attorney assigned to this case reported to the Arraignment Judge that she had personally witnessed Defendant threaten the complaining witness in the courtroom by stating twice to the complaining witness, "You're dead." These allegations presumably caused the Arraignment Judge to conclude that there existed a high risk that Defendant would not appear for future court dates, particularly considering that Defendant and the complaining witness reside in the same building, a small walk-up containing few apartments. Defendant was remanded by the Arraignment Judge for bail to be ordered at the next court appearance, so that the People's allegations could then be taken into account.

This Court makes no finding as to whether Defendant in fact threatened the complaining witness at arraignment, but considers the Assistant District Attorney's report to be relevant in [*2]assessing the likelihood that Defendant would return to court for future appearances. The mere fact that the People alleged that the threat was made may cause Defendant to fear that he would be sentenced to a longer term of imprisonment, and such fear is among the factors the Court considers when determining a defendant's risk of flight. CPL § 510.30(2)(a).

On April 12, 2006, Defendant indicated to the Judge then presiding that he would consider pleading guilty if promised a sentence that would involve treatment via the Treatment Alternatives for Dually Diagnosed Defendants program ("TADD")[FN1]. Defendant advised the court that he had previously been under psychiatric treatment which involved both psycho-pharmaceuticals and therapy sessions, but had ceased treatment several years ago. The Court adjourned until April 18, 2006, to allow time for TADD to evaluate Defendant and determine his eligibility for the program, and the Judge presiding set bail at $50,000 cash or bond.

On April 18, 2006, the defendant was produced before the court in order to post bail by means of a $50,000 bond. A representative from TADD was present, who informed the court that TADD had not yet fully evaluated Defendant, and had been under the mistaken understanding that the People would consent to a sentence involving outpatient rather than inpatient treatment. TADD advised the Court that Defendant would need to be evaluated by both a psychiatrist and a physician to determine his suitability for the program. At that time, the People alleged that there had been changed circumstances since bail had been set, which may be grounds for the Court to reconsider the bail determination. Before deciding whether to approve the posted bond, the Court adjourned until April 20, 2006, in order to hold a hearing on whether there had been changed circumstances subsequent to the previous bail order.

Amending the Bail Order with Defendant's Consent

On April 20, Defendant was once again produced before the court. Defendant represented to the Court that if released on bail, he would no longer be living in the same building as the complaining witness, but would reside with a relative at a different location. With Defendant's consent, the Court amended the bail order to include the following three conditions:

(1) Defendant is to report each business day to TADD at 175 Remsen Street, Suite 600, Brooklyn, New York, or to any agent whom TADD should designate, for purposes of expeditious assessment of Defendant's suitability for a sentence incorporating treatment via TADD. See People ex rel. Tanuzzo v. New York City Dept. of Correction, 174 AD2d 443, 571 NYS2d 230 (1st Dept. 1991) (Defendant required to report to the New York City Police Department each day as a condition of bail); Application of Maringolo, 303 F. Supp. 1398 (S.D.NY 1969) (Defendant required to report daily to the Immigration and Naturalization Service).

(2) Defendant is to immediately resume his course of treatment and therapy with his psychiatrist, Dr. London, at Lutheran Medical Center, where Defendant had been previously [*3]undergoing treatment. Should Dr. London no longer be available to provide treatment, Defendant is to immediately undertake treatment with a psychiatrist designated by the Department of Psychiatry of Lutheran Medical Center. Defendant is to fully comply with such treatment as Dr. London or the designated psychiatrist should deem appropriate. See People ex rel. Bryce v. Infante, 144 AD2d 898, 535 NYS2d 215 (3rd Dept. 1988) (Defendant required to resume his course of treatment and therapy with his psychotherapist as a condition of bail).[FN2]

(3) Defendant is to comply with the temporary order of protection, extended as of April 20, 2006, requiring that Defendant avoid all contact with the complaining witness, until the next time Defendant shall be required to appear before the Court, and with any future orders of protection that may be issued by the court. CPL § 530.12(1); CPL § 530.13(1).[FN3]

Alternative Grounds for Amending the Bail

The Court may "for good cause shown" revoke an order of recognizance or bail at any time. CPL § 530.60(1). In a case such as this where the highest charge alleged is a misdemeanor, the defendant has the right to recognizance or bail, and the court must issue another such order.[FN4] CPL § 530.20(1); CPL § 530.60(1).

The good cause shown must relate to the defendant's risk of flight, which is the only valid justification for setting bail. People ex rel. Weisenfeld v. Warden, New York Detention Facility, 37 NY2d 760, 761, 337 NE2d 140, 140, 374 NYS2d 631, 631 (1975) ("Relevant factors in granting or denying bail are the nature of the offense, probability of conviction, and severity of the sentence which may be imposed, all increasing the risk of flight or unavailability for trial." (citations omitted)); People ex rel. Mordkofsky v. Stancari, 93 AD2d 826, 827, 460 NYS2d 830, 832 (2d Dept. 1983) ("[T]he legitimate object of the bail system is to secure the attendance of a defendant in a criminal case."); People v. Saulnier, 129 Misc 2d 151, 153, 492 NYS2d 897, 899 [*4](Sup. Ct. NY Co. 1985) ("[T]he only goal a judge may consider in setting discretionary bail under the current statutory scheme is to ensure the presence of defendant.").

At the April 20, 2006 appearance before the Court, the People conceded that there had been no changed circumstances sufficient to justify revocation of the bail order. However, the TADD representative present in court on that date informed the Court that TADD had not completed their evaluation of Defendant and had not yet determined whether he would be eligible for the program, as they had been expected to do by the previous court date. While TADD had completed an initial interview, Defendant had yet to be seen by a psychiatrist and a physician, both of which are required as part of the process to determine Defendant's eligibility for the TADD program. TADD further reported to the Court that it could take several weeks before Defendant could be seen by their designated psychiatrist, and additional time before the psychiatrist would be able to complete a report.

Had the Defendant not consented to amending the bail order to include the above conditions, the Court may have deemed TADD's inability to evaluate Defendant's eligibility for the program by the expected date as good cause for reevaluating the bail order. Bail was ordered with the understanding that TADD would evaluate Defendant by the next court date, as Defendant was considering pleading guilty to a sentence consisting of treatment via TADD. TADD's inability to complete its evaluation of the defendant, together with the mistaken belief that outpatient treatment would be acceptable to the People, increased the likelihood that Defendant would face a term of imprisonment if found guilty of the alleged offense. It is generally accepted that a defendant who finds himself facing a potentially harsher sentence than he had anticipated has a higher risk of flight to avoid criminal prosecution.

Approval of the Bond

When bail is posted, the Court must examine the bail to determine whether it complies with the original order fixing bail. If the posted bail does not comply with such order, or if "some factor or circumstance which in law requires or authorizes disapproval thereof"exists, the court need not approve the posted bail, and need not issue a certificate of release. CPL § 510.40(3).

The Court, at its discretion, may also conduct an inquiry into the sufficiency of the bail posted pursuant to CPL § 520.30(3) before approving or disapproving bail. The court may inquire into any matters it considers appropriate to the determination of the reliability of the obligors, the value and sufficiency of any security offered, or whether any feature of the undertaking contravenes public policy. Id.

Upon examination of the posted bond, and the People having no objection, the Court signed its approval and issued a certificate of release. The People were directed to immediately notify the complaining witness that Defendant was being released on bail.

Accordingly, the defendant was released on bail consisting of fifty thousand dollars ($50,000) posted bond and on the conditions outlined above, pending his next court appearance on April 26, 2006.

The foregoing is the decision and order of the court.

Dated:April 25, 2006

Brooklyn, New York [*5]



J.C.C. Footnotes

Footnote 1:TADD is available for mentally ill defendants, including those diagnosed with schizophrenia, depressive disorders, bipolar disorder, and other diagnoses. Defendants with severe mental illnesses accompanied by substance abuse may be eligible for inpatient treatment via TADD.

Footnote 2:The Court intends to schedule dates for Defendant to periodically appear in court during the time while TADD is undertaking its assessment. These updates will provide Defendant with the opportunity to request modification of the bail conditions, or to object to any course of treatment proposed by his psychiatrist. The sole consequence should Defendant refuse treatment would be a hearing and, absent a showing of incapacity, potentially the revocation of bail, thus satisfying the requirements of due process and Defendant's right to refuse treatment. See In re K.L., 1 NY3d 362, 806 NE2d 480, 774 NYS2d 472 (2004) (Respondent could not be forcibly medicated without a showing of incapacity, but could be hospitalized for examination); Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976) ("The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner'").

Footnote 3:Such orders are generally extended at each court appearance.

Footnote 4:The Court notes that had the People chosen to indict Defendant with felony charges based on the alleged incident at arraignment, Defendant would no longer have been entitled to recognizance or bail as a matter of right, and the Court would have the power to remand Defendant to the custody of the sheriff. CPL § 530.20(2); CPL § 530.60(1).