People ex rel. Pervez v Warden, C. Vernon Bain Detention Ctr.

[*1] People ex rel. Pervez v Warden, C. Vernon Bain Detention Ctr. 2013 NY Slip Op 51259(U) Decided on August 1, 2013 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2013
Supreme Court, Bronx County

The People of the State of New York ex rel. RAHEEL PERVEZ, Petitioner,

against

Warden, C. Vernon Bain Detention Center, or any other person/ entity having custody of RAHEEL PERVEZ, Respondents.



260521-2013



Counsel for Petitioner

Larissa Payne

Jeffrey Winkler

Assistant Attorneys General

Counsel for the Respondent

Richard L. Price, J.

Petitioner, by writ of habeas corpus submitted July 18, 2013, moves for an order modifying the arraignment court's determination to remand petitioner without bail. For the reasons indicated below, the petition is dismissed.

Background and Procedural History

On June 13, 2013, petitioner was arrested and charged by felony complaint (Docket No. 2013BX034578) with grand larceny in the first degree (PL 155.42), a class B felony. Also on that date, he was arraigned in Supreme Court, Bronx County, before Justice Steven L. Barrett. After hearing extensive and detailed arguments from both the Attorney General and counsel for the petitioner, Frank Doddato, Justice Barrett remanded petitioner to custody.

On June 17, 2013, the grand jury of Bronx County returned a true bill against the petitioner, charging him with enterprise corruption (PL 460.20 [1] [a]), grand larceny in the first degree (PL 155.42), conspiracy in the fourth degree (PL 105.10 [1]), and three counts of offering a false instrument for filing in the first degree (PL 175.35).

On June 19, 2013, petitioner was arraigned on an indictment containing these charges before Justice Barrett. Petitioner, through new (and current) counsel, urged Justice Barrett to [*2]reconsider his initial decision denying bail. Justice Barrett rejected that application, and continued petitioner's remand status.

On July 18, 2013, this court received oral argument on the petition. As discussed below, petitioner, to succeed, must establish that Justice Barrett's decision denying bail constitutes an abuse of discretion. For the reasons indicated below, this court finds petitioner failed to do so.

Discussion

The New York State Constitution, while protecting a defendant's right against assigning excessive bail (People ex rel. Fraser v Britt, 289 NY 614 [1942]), requires that legislative provisions relate to the proper purposes for the detention of defendants before conviction, as must the judicial applications of discretion authorized by the legislature (People ex rel. Klein v Krueger, 25 NY2d 497 [1969], citing Foote, The Coming Constitutional Crisis in Bail, 113 U of Pa L Rev 959, 1125 [1965]). Factors to be determined as a consideration for the granting or denying of bail are: (a) the nature of the offense; (b) the penalty which may be imposed; (c) the probability of the willing appearance of the defendant or his flight to avoid punishment; (d) the pecuniary and social position of defendant and his general reputation and character; (e) the apparent nature and strength of the proof as bearing on the probability of his conviction (People ex rel. Gonzalez v Warden, 21 NY2d 18, 25 [1967], cert denied 390 US 973 [1968]; see also CPL 510.30 [2] [a][FN1]).

Going forward, it is the defendant who bears the burden of establishing facts in his petition demonstrating that Justice Barrett's denial of bail was prohibitively unreasonable and oppressive given the circumstances of his particular case (People ex rel. Morales v Warden, 166 AD2d 626 [2d Dept 1990]; People ex rel. Rothensies v Searles, 229 AD 603, 605 [3rd Dept 1930]). It is significant to note, however, that the initial determination cannot be upset absent a showing that the bail-fixing judge acted arbitrarily and improvidently, or exhibited an abuse of discretion (People ex rel. Wasmund v McCloskey, 16 Misc 2d 659 [Sup Ct New York County [*3]1959]).

To be sure, the function of the habeas court is limited to inquiring whether or not the nisi prius court denied bail without reason or for reasons insufficient in law, or by setting excessive bail (People ex rel. Shapiro v Keeper of City Prison, 290 NY 393 [1943]). "Within constitutional limits the nisi prius criminal court has the sole nonreviewable discretion to fix or deny bail" (Klein, 25 NY2d at 502). The reviewing court may neither substitute its discretion for that of the nisi prius court (Brown, 190 AD2d 836), nor make a de novo determination (People ex rel. Rosenthal v Wolfson, 48 NY2d 230 [1979]).[FN2]

Only where it appears that the constitutional or statutory standards inhibiting excessive bail or the arbitrary refusal of bail are violated may the reviewing court modify or reverse the nisi prius determination, and only if it is unsupportable by a rational basis (People ex rel. Klein v Krueger, 25 NY2d 497, 499 [1969]; People ex rel. Brown v Bednosky, 190 AD2d 836 [2d Dept 1993]). All a reviewing court does is ensure that the nisi prius court's exercise of discretion did not invade the defendant's constitutional rights (People ex rel. Rao v Adams, 296 NY 231, 234 [1947]; People ex rel. Richards v Warden of City Prison, 277 AD 87, 89 [1st Dept 1950]), or constitute an "improvident" edict (Matter of Jacobsen, 278 AD 945 [2d Dept 1951]; see also People ex rel. Lobell v McDonnell, 296 NY 109 [1947] [finding $250,000 bail excessive under constitutional restriction]).

In evaluating whether such exercise of discretion was predicated on a rational basis, it is important to note that the rubric of abuse of discretion is so deferential to the original court that courts have disparaged the standard as "too elastic" to be helpful and "follow[ing] too easily upon a conclusion previously reached" (Klein, 25 NY2d at 502). That being said, such a standard is indeed necessary.

Assessing a bail order's reasonableness is to be determined by "properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused" (United States v Mulcahy, 155 F 2d 1002 [2nd Cir 1004]). In that sense, such discretion, though considerable, is "judicial" not "pure or unfettered," and "calls for a fact determination not a mere fiat" (Lobell, 296 NY at 111 [1947]). Thus, the habeas court must decide whether the nisi prius court made its determination "without reasons, or for reasons insufficient in law; whether the bail setting court's decision was arbitrary or improvident; whether the bail was set excessive, in violation of statutory standards" (People v Mohammed, 171 Misc 2d 130, 139 [Sup Ct, Kings County 1996, Rivera, J.]). Accordingly, where there exists a record reflecting that the court considered the factors set forth in CPL 510.30 (2) (a), it cannot be said the court abused its discretion by setting or increasing bail (People ex rel. Meyer v Commissioner of Dept of Correction of City of NY, 119 AD2d 472 [1st Dept 1986]).

Here, petitioner's claim that Justice Barrett's determination denying him bail was arbitrary and irrational is belied by the record. At his arraignment on June 13, 2013, the Attorney General [*4]requested $5 million bail with an examination of surety. Noting the existence of $3.7 million dollars in untraceable funds, $540,000 of which was from the recent sale of his home, the Attorney General argued that the petitioner is a serious flight risk. Further supporting such contention, the petitioner was in the process of transferring approximately $70,000 in cash withdrawals from his account to an illegitimate company in his wife's name at the time of his arrest. Noting the significance of such transactions, the Attorney General pointed out that petitioner's father, who is a suspected co-conspirator, engaged in a similar course of conduct immediately before he fled to Pakistan. Indeed, when investigators arrived at the petitioner's house to arrest him, they observed its contents packed in boxes.

In response, petitioner's prior counsel, Frank Doddato, argued that the petitioner was not a flight risk because he is a United States citizen, and a long-time resident of Suffolk County with a pregnant wife and three children. He further represented that the petitioner is neither a citizen of Pakistan, nor has a Pakistani passport. In support, Mr. Doddato noted that in August of 2012, the petitioner traveled to Pakistan and returned despite the knowledge that he was under investigation. This, apparently, led him to argue "if that's not an argument for a lower amount of bail, I don't know what is. . . If he was going to flee, he could have fled by now" (see Respondent's Exhibit 1, p. 8, l. 13-15; p. 9, l.1-20).

In assessing the risk of petitioner's flight, Justice Barrett twice considered the relevant factors enumerated in CPL 510.30 (2) (a), first on June 13, and again on June 19. What strikes this court is not only the specificity of such consideration, but his clearly articulated reticence over setting high bail or denying it altogether. Noting the persuasiveness of the arguments presented by both parties at the June 13 arraignment, Justice Barrett observed that counsel's arguments relied on what he termed "a presumption of rationality." Commenting that while the presumption of innocense "exists without question," Justice Barrett stated that "the presumption of rationality, does not, in my experience, exist very frequently" (see Respondent's Exhibit 1, p. 11). Then, with clarity and specificity, Justice Barrett articulated the basis for his decision denying bail.

[T]here is, in my judgment, overwhelming danger of flight presented by the State with respect to predominantly the following factors: the most important is the liquidation of assets and the conversion of property and other real and personal assets into transferable assets.

The actions of his father are instructive and I will not indicate at this time that they are not persuasive, they are in fact points that I think are well taken by the attorney general.

Not also to be ignored is the size of the alleged theft in this case and the possibility that the defendant will face, if indicted, class B felony offense charges, and thereupon mandatory state prison upon conviction. All of these factors lead me to think that there is (a) a very grave and demonstrated danger of flight, and (b) many incentives to flight.

I'm not confident, that should the defendant flee, his presence in this jurisdiction from Pakistan would be a matter easily accomplished.

For those reasons I will remand the defendant. I feel that remand is appropriate here [*5]because any number that I put on the case at this point is arbitrary. One million, two million, five million, three hundred thousand, whatever the number is, it doesn't meet the claim that's being made which is the defendant is a very, very, highly likely flight risk.

And in my judgment thereupon, given what we've heard here and the possibility, if there are other assets that are not known about and that ultimately an individual could reasonably conclude that their own liberty is worth the loss of enormous amounts of money. I believe that at least until such time until I see what the grand jury does in this case I'm giving the defendant a remand status. (see Respondent's Exhibit 1, pp. 11-12).

On June 19, 2013, petitioner was arraigned on the indictment. The Attorney General not only argued that the petitioner was now under indictment, but also that he faced three counts of offering a false instrument for filing, conspiracy, and enterprise corruption in addition to the original charge of grand larceny in the first degree. The record of that proceeding is replete with specific factual support for charges contained in the indictment. Moreover, the Attorney General represented that likelihood of extradition from Pakistan, where the petitioner has familial ties, is minimal at best.

Current counsel responded by minimizing the petitioner's role (and maximizing the role of others, i.e., the petitioner's father), and noting the non-violent nature of the charged offenses. And, while neither disavowing nor contradicting Mr. Doddato's June 13 arguments, he inferred that they were deficient because of having been compelled to respond impromptu to the Attorney General's well-prepared application. Such is the position of all defense counsels at an arraignment. Mr. Doddato could have, had he elected to do so, reserved a formal bail argument. The fact is, however, as Justice Barrett noted, Mr. Doddato argued for bail, and did so persuasively.

Interestingly, aside from representing that the petitioner had not purchased airline tickets or visas, which directly addresses the risk of petitioner's fight, the gravamen of counsel's June 19 argument was twofold: it challenged the veracity of the Attorney General's allegations, and implored Judge Barrett to set bail because of petitioner's poor health, potential loss of vision, and difficulty preparing for trial while housed in the "bing facility" (the functional equivalent of solitary confinement used as either protective custody or punitive segregation). Counsel did, of course, offer to surrender his passport and assets, and agree to home confinement and electronic monitoring. But given the potential for unknown or unaccounted for liquid assets, and a familial connection to Pakistan, such conditions would hardly insure his return from should he succeed in fleeing there.

As the arraignment records clearly demonstrate, Justice Barrett eloquently communicated the basis for his determination that denying bail was necessary and appropriate pursuant to the criteria enumerated in CPL 510.30 (2) (a). Accordingly, petitioner's argument that his decision was an abuse of discretion is not only unpersuasive, it is entirely untenable. Petitioner, by this proceeding, merely reasserted the same arguments previously presented, albeit more strenuously. But regardless of how cogently and articulately did so, it is simply not a basis in law to disturb the nisi prius court's determination denying petitioner bail.

This constitutes the decision and order of the court. [*6]

Dated: August 1, 2013

E N T E R

________________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1: Criminal Procedure Law § 510.30 (2) (a) provides:

(a) With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required. In determining that matter, the court must, on the basis of available information, consider and take into account:

(i) The principal's character, reputation, habits and mental condition;

(ii) His employment and financial resources; and

(iii) His family ties and the length of his residence if any in the community; and

(iv) His criminal record if any; and

(v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and

(vi) His previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and

(vii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and

(viii) If he is a defendant, the sentence which may be or has been imposed upon conviction.

Footnote 2: To the extent that petitioner's claim can be construed as incorporating a change of circumstances, this court notes that such an assertion is not reviewable on a habeas petition. As thoroughly noted, the habeas court's review is restricted to the nisi prius court's record; under no circumstances may it go beyond (Wolfson, 48 NY2d 230 [1979]). In the event petitioner believes a change of circumstances argument is viable, he must return to the nisi prius court for a de novo application.