People ex rel. Kaufmann v Brann

[*1] People ex rel. Kaufmann v Brann 2020 NY Slip Op 20191 Decided on August 5, 2020 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 5, 2020
Supreme Court, New York County

People ex rel. Kaufmann on Behalf of Marongiu, Petitioner,

against

Brann, Respondent.



PEOPLE EX REL. KAUFMANN ON BEHALF OF ROBERTS,Petitioner,

against

BRANN,Respondent.



451514-2020



New York County District Attorney Cyrus R. Vance, Jr. (Courtney Razner, of counsel with respect to Defendant Victor Marongiu; Danielle Coffey, of counsel with respect to Defendant Jason Roberts).

New York County Defender Services (Sarah Kaufmann, of counsel, to Defendants Victor Marongiu and Jason Roberts) for the Petitioners/Defendants).
Daniel Conviser, J.

The Defendants in these two cases have both filed petitions for writs of habeas corpus based on their continued detention in Rikers Island without a grand jury indictment or preliminary hearing. Although these two cases have not been consolidated, they raise the same legal issues, are represented by the same defense attorney and are both being prosecuted by the New York County District Attorney's office. This Court has thus ruled on these two writs in this [*2]one Decision and Order.

Mr. Marongiu has been detained at Rikers Island since March 25, 2020, a period of more than four months, without any determination based on evidence presented either to a grand jury or to a judge at a preliminary hearing that there is reasonable cause to believe he committed a crime. Mr. Roberts has been detained under the same conditions since May 6th. In this Court's view, the law, the Governor's Executive Orders and the due-process principles inherent in our Constitution and Criminal Procedure Law forbid these detentions.

The Second Department, however, has recently issued two decisions which allow prosecutors to delay the conduct of preliminary hearings in the absence of grand juries for good cause for equivalent periods. This Court respectfully disagrees with these rulings and believes a series of Executive Orders issued by the Governor prohibit good cause extensions for such extended periods. However, this Court is bound to follow and has followed those decisions here. This Court also disagrees with the discretionary determinations made by the Criminal Court in both of these cases that there is good cause to delay the conduct of preliminary hearings. But, in these habeas corpus petitions, the question is not whether this Court would have reached a different conclusion than the Criminal Court. The question is whether the Criminal Court acted outside the bounds of the law in making its rulings. The Court here holds the Criminal Court did not violate the law in making its discretionary good cause determinations. For those reasons, both petitions are denied.

Facts, Procedural History and Outline of "Good Cause" Argument in People v. Marongiu

Mr. Marongiu is alleged to have "forcibly and repeatedly sexually assaulted and obstructed the breathing of his grandmother's home health aide".[FN1] The People allege that the assault occurred over a period of 1-2 hours and was a "violent, prolonged, and degrading sexual assault".[FN2] The Defendant was arraigned on March 25, 2020. He was charged in a felony complaint with Rape in the First Degree, Criminal Sexual Act in the First Degree and Criminal Obstruction of Breathing and Blood Circulation. Bail was set in the amount of $50,000 cash, $100,000 Insurance Company Bail Bond, $100,000 Partially Secured Surety Bond or $75,000 by credit card.

On May 20, Criminal Court Judge Kevin McGrath granted the People's application to allow the defendant's continued detention without an indictment or preliminary hearing until June 6. On May 29, 2020, the People asked for an indefinite extension of the Defendant's detention without either an indictment or a preliminary hearing for "good cause". As discussed in more detail infra, the People argued that since the victim would not be able to testify virtually from home, she would have to travel to the district attorney's office to provide virtual testimony, jeopardizing her safety and the safety of the vulnerable home health care patients she cared for. The People also argued that it would be inequitable to require the victim to be forced to relive the [*3]trauma of the sexual assault by testifying at a preliminary hearing.

On June 3, 2020, Judge McGrath extended his order denying the Defendant's release for an additional 30 days:

This Court's previous order, issued on May 20, 2020, denying the defendant's release, shall be extended for 30 days from the date of this order. This Court finds that the People have shown good cause as to why this Court's prior order should be extended. In this case, the reasons provided by the People in their application as to why they are unable to conduct a preliminary hearing at this time, as well as the inability to empanel a grand jury due to COVID-19 constitute such good cause.

On July 2, 2020, Judge McGrath issued an identical order (except for the dates) extending the previous order until August 2. It is this Order which then became the subject of the instant petition. On July 31, Judge McGrath issued an identical order (except for the dates) extending the previous order until August 21. This will extend the Defendant's authorized confinement without the requirement for an indictment or preliminary hearing to almost five months.

Facts, Procedural History and Outline of "Good Cause" Argument in People v. Roberts

Jason Roberts is alleged to have sexually assaulted a woman after following her into her apartment building on May 1, 2020. The complainant in this case is a registered nurse who works in a hospital upstate but was in New York City at the time of the assault working at a hospital assisting COVID patients. Upon following the complainant into the building, the Defendant grabbed her, pulled down her leggings and underwear and struck her with a closed fist. The perpetrator also took the Defendant' Iphone.

On May 4, he was charged in a felony complaint with Burglary in the First Degree as a Sexually Motivated Felony, Attempted Rape in the First Degree, Robbery in the Second Degree and Sexual Abuse in the First Degree. On May 6, a securing order of $200,000 cash, $400,000 insurance company bail bond, $400,000 partially secured surety bond or $400,000 credit card payment was set and Mr. Roberts remains incarcerated on that securing order.

On May 26, Judge McGrath found good cause to deny the Defendant's release. In a brief decision, he wrote: "This Court finds that the People have shown good cause why an order of release should not be issued. In this case, the inability to empanel a grand jury due to COVID-19 constitutes such good cause." On May 29, the People submitted an affirmation in support of their request for a further extension and the Court granted a further 30 day extension on June 3, using the identical form of order issued in the Marongiu case. On July 2, the Court issued the identical form of order, extending the Defendant's detention until August 2. It is this Order which then became the subject of the instant petition. On July 31, the Court issued the identical form of order extending the defendant's detention until August 21. This will extend the Defendant's authorized confinement without an indictment or preliminary hearing to three months and three weeks.

CONCLUSIONS OF LAW

[*4]CPL 180.80 and 190.80, As Modified by the Governor's Executive Orders, Provide That Defendants May Continue to Held in Custody in the Absence of Grand Juries But That Such Custody Cannot Continue Past 45 Days Without a Preliminary Hearing

In this Court's view, it is clear that a Governor's Executive Order issued on May 7th and extended since then requires that, in the absence of grand juries, any defendant in custody on that date must be afforded a preliminary hearing within 45 days or released. Since that did not happen in these cases, the continued detention of both Mr. Marongiu and Mr. Roberts became unlawful on June 21 (45 days following the Executive Order).

Analysis of the Executive Orders

The provisions of CPL 180.80 and 190.80 have been modified by a series of Governor's Executive Orders (hereinafter "EOs"). The most relevant to consider here are EO 202.28, issued on May 7th 2020 (hereinafter the "May 7th EO") and the most recent EO 202.48, issued on July 6, 2020, (hereinafter the "July 6th EO").

The May 7th EO continued the suspension of various laws made by earlier EOs and contained two specific provisions relevant to CPL 180.80 and 190.80. The CPL 180.80 language continues the suspension of CPL 180.80 under the following terms:

Section 180.80 of the Criminal Procedure Law, to the extent that a court must satisfy itself that good cause has been shown within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision three of such section;

This provision says that so long as grand juries cannot be empaneled (the situation today in New York County) a defendant may continue to be held on a felony complaint. No requirement for a preliminary hearing is imposed. Indeed, it can be argued that this provision is unnecessary, since it illustrates a circumstance (the COVID pandemic) which might be found to constitute "good cause" under the statute for the continued detention of a defendant even without an EO. See CPL 180.80 (3) (exempting from the statutory release requirement any circumstance in which "the people have shown good cause why such order of release should not be issued").

The May 7th EO also modified the general suspension rules of earlier EOs with respect to CPL 190.80. This is the critical provision here. The May 7th EO provides:

Section 190.80 of the Criminal Procedure Law, to the extent that to the extent that [FN3] a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint beyond forty-five days due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause pursuant to subdivision b of such section provided that such [*5]defendant has been provided a preliminary hearing as provided in section 180.80. (bold type added).

This provision is also clear. It provides that under CPL 190.80 a defendant can continue to be held in custody without grand jury action for more than 45 days, but only if a preliminary hearing has been held. No provision for a "good cause" extension is provided by this provision. But no such good cause extensions with respect to preliminary hearings are provided by the statute either. CPL 190.80, provides for a good cause extension only for the lack of grand jury action. It provides no good cause extension with respect to the requirement for preliminary hearings.

Thus, under the statute, (modified by the Executive Order provision here) an exception to the requirement for release after 45 days exists where:

(b) The people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or circumstance which precluded grand jury action within the prescribed period or rendered the same against the interest of justice. (emphasis added).

Of course, the reason CPL 190.80 does not provide any good cause extension to conduct a preliminary hearing is because preliminary hearings have no significance under the statute once 45 days have passed. Thus, there is no reason to have a good cause preliminary hearing extension under CPL 190.80.

On July 6, the Governor issued Executive Order 202.48. This EO extends for 30 days until August 6th. The July 6th EO prefaces its detailed provisions with a general directive that the Order will:

hereby continue the suspensions and modifications of law, and any directives, not superceded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to an including Executive Order 202.14, as continued and contained in Executive Order 202.27, 202.28, and 202.38, for another thirty days through August 5, 2020, except the following:

Thus, the July 6th EO continues the prior suspensions, except as otherwise modified. Those prior suspensions include provisions of the May 7th EO discussed immediately supra, which allow defendants to continue to be held in custody past 45 days, but only where a preliminary hearing has been held. The July 6th EO includes two additional modifications of the May 7th EO. It first provides:

Section 190.80 of the Criminal Procedure Law, is hereby modified to provide that the 45-day time limit to present a matter to the grand jury following a preliminary hearing or waiver continues to be suspended and is tolled for an additional 30 days.

The meaning of this provision has been subject to debate but it is clearly inapplicable [*6]here, since it speaks to circumstances where there has been a preliminary hearing or waiver, neither of which has occurred in these cases. The July 6th EO also contains this provision:

The suspension of Section 180.80 and 190.80 of the Criminal Procedure Law, as modified by Executive Order 202.28, is hereby continued for a period not to exceed thirty days in any jurisdiction where there is not a grand jury empaneled; and when a new grand jury is empaneled to hear criminal cases, then 180.80 and 190.80 of the criminal procedure law shall no longer be suspended beginning one week after such grand jury is empaneled.

Grand juries have not been empaneled in New York County. So the second part of this provision, dealing with the circumstance where grand juries have already been empaneled does not apply here. The first part of this provision is also clear. The July 6th EO generally applies for 30 days. This provision simply says that the provisions of the May 7th EO also continue for those 30 days.

Read in isolation, the proviso that the 30 day extension of the May 7th EO applies in cases where grand juries have not been empaneled might appear to be superfluous, since the July 6th EO extended all suspensions for 30 days. In the context of the entire sentence, however, the reason for the repetition of the proviso is clear. It distinguishes those cases which are extended for 30 days in accordance with the EO's general rule (those in jurisdictions where a grand jury is not yet empaneled) from cases where grand juries have been empaneled (where the previous suspensions are not continued).

The Clear Absence of Any Preliminary Hearing "Good Cause" Exception

Upon the issuance of the May 7th EO, a 45 day clock started to run for cases in which custody commenced prior to May 7th, like the two here. That 45 day clock expired on June 21. For pre-May 7th cases like the two here, defendants for whom preliminary hearings had been held could continue to be confined without grand jury action indefinitely, so long as grand juries had not been empaneled. For cases where preliminary hearings had not been held, release was required on June 21. In this Court's view then, as noted supra, both Mr. Marongiu and Mr. Roberts have been unlawfully confined at Rikers Island for the past 45 days.

The EOs provide no exception to these rules for "good cause" or any other reason. In this Court's view, as a policy matter, a limited exception should be provided where a necessary witness is temporarily unable to testify within 45 days and is expected to become available at a later time. It might even perhaps be appropriate for a court to create such an exception. In rare cases where a normal protective order could not adequately protect a witness, it might be permissible for an examination to be conducted ex parte or without the presence of a defendant. However, the issues raised by the People here do not come close to meeting any such standards.

The Obvious Policy Purposes of the Governor's Executive Orders

The policy reasons behind the Governor's Executive Orders in this regard are also clear [*7]and clearly rational. Defendants cannot simply be held indefinitely with no judicial determination based on evidence of reasonable cause. The Executive Orders give the People a reasonable period of time within which to conduct preliminary hearings. The Executive Orders, and now a new statute, authorize these hearings to be conducted remotely and an Executive Order also authorizes special protections for vulnerable witnesses at these hearings, both discussed infra. The Court system has been open and fully functioning with respect to these hearings and has and continues to conduct them.

The Governor's Executive Orders also ensure that pretrial detainees are afforded due-process under the 14th Amendment, even in the midst of the extraordinary challenges arising from the COVID pandemic. "Once a state has granted prisoners a liberty interest . . . due-process protections are necessary to ensure that the state-created right is not arbitrarily abrogated." Vitek v. Jones, 445 US 480, 489 (1980). The Executive Orders vindicate this constitutional principle by ensuring that the due-process right to an evidentiary ruling for pretrial detainees is provided in every case, including sexual offenses, within a reasonable time.

Two Arguments for Alternative Constructions

This Court has encountered two arguments that the Governor's Executive Orders should not be construed in accordance with their plain meaning and obvious purpose. The first is that CPL 190.80 is a statute which normally only becomes operative when a preliminary hearing has already been conducted. It is in those situations, not circumstances like those here, where the 45 day limit of the statute becomes applicable. That point is true. However, the absence of grand juries and the Governor's EOs have upended this legal landscape. CPL 180.80 is being extended in every case. The outer limit to detentions now arises under CPL 190.80 as modified by the EOs. CPL 190.80 and the EOs now provide that confinement may continue past 45 days under CPL 190.80, but only if a preliminary hearing has been held.

Construing CPL 190.80 as not being operative in this context would mean that only 180.80 would have to be considered. However, under 180.80, the requirement for indictments is stayed in all cases under the EOs until grand juries resume, with no requirement for a preliminary hearing. Thus, not reading 190.80 as modified by the EOs in accordance with its plain meaning would be mean that the People would not be obligated to conduct preliminary hearings in any cases and that defendants could continue to be held in custody until grand juries resumed with no evidentiary demonstration of reasonable cause. The Governor's Executive Orders were clearly designed to prevent that.

The second argument is that, since the EOs were intended to provide greater flexibility to hold defendants in the absence of grand juries, where the EOs do not benefit prosecutors, prosecutors may dispense with the EOs and simply operate under the Criminal Procedure Law. With respect to the issue here, the absence of Executive Orders might provide prosecutors with greater flexibility than their existence. That is because both CPL 180.80 and 190.80 provide statutory "good cause" exceptions and, where such exceptions are applicable, do not require preliminary hearings, even after 45 days. CPL 180.80 (3); 190.80 (b). Thus, were the People to simply operate under these statutes, and if good cause not to obtain an indictment was found based on the absence of grand juries, the People would be free to hold defendants in custody [*8]indefinitely until grand juries resumed, without conducting preliminary hearings in any case.

There are two problems with this argument. First, as a policy matter, the good cause exemptions in the Criminal Procedure Law were apparently enacted to address problems which might arise in obtaining indictments in individual cases. The drafters of these statutes likely did not contemplate that a global pandemic would provide good cause to not obtain indictments in any case and allow every defendant to be held in jail indefinitely until grand juries resumed. The 45 day limit in the EOs addresses this problem by requiring preliminary hearings.

Compliance with the Governor's Executive Orders is also not optional. That is why they are called "Executive Orders" rather than, for example, "Executive Options".

The Second Department's Recent Decisions

The Second Department in two recent, brief decisions, however, has construed the law differently and allowed defendants to be detained, without a preliminary hearing, for periods longer than 45 days. Although these decisions do not recount any of the underlying facts in these cases, a factual record has been provided to the Court by the People, allowing the Court to partially understand how the Second Department has construed the Executive Orders outlined here.

In People ex rel. Rolls v. Brann, 2020 NY SlipOp 03922 (2nd Dept July 15, 2020) the Court dismissed a petition for a writ of habeas corpus by issuing this ruling:

The petitioner has not demonstrated that the detention of Essence Wilson pursuant to a felony complaint is illegal. Under the circumstances of this case, the People demonstrated good cause for the delay in conducting a preliminary hearing or obtaining an indictment. We note that grand juries are scheduled to begin reconvening in Kings County on August 10, 2020. Disposition of this felony complaint or a preliminary hearing thereon should occur no later than August 17, 2020. (citations omitted).

Submissions by the People indicate the Defendant in this case had been held since April 29 without an indictment or a preliminary hearing, a period which extended for 77 days until the Court's July 15 order. Moreover the Second Department prospectively authorized this period of detention to extend until August 17, or a total period of 110 days, a little less then four months. Although the Second Department did not explain how they construed the Governor's Executive Orders, therefore, it is clear they implicitly rejected the construction outlined by this Court here. In this Court's view, as outlined supra, the detention of the Defendant in Rolls became unlawful on June 21, not August 17th.

The Second Department issued the virtually identical ruling in People ex rel. Gelormino v. Brann, 2020 NY SlipOp 04133 (2nd Dept July 20, 2020), with the sole differences in the rulings, (other than that they were different cases in different counties), being the direction that a disposition of the felony complaint occur by August 20th rather than August 17th and that, in the absence of such a disposition, a preliminary hearing would have to "commence" rather than "occur" by that date:

The petitioner has not demonstrated that the detention of Rajsean Anderson pursuant to a felony complaint is illegal. Under the circumstances of this case, the People demonstrated good cause for the delay in conducting a preliminary hearing or obtaining an indictment. We note that grand juries are scheduled to begin reconvening in Richmond County on August 10, 2020. Disposition of this felony complaint or a preliminary hearing thereon should commence no later than August 20, 2020. (citations omitted).

Submissions by the People indicate that the Defendant in this case had been held without grand jury action or a preliminary hearing since April 23. Thus, he was held for 88 days without any evidentiary demonstration of reasonable cause by the date of the Court's order on July 20th and may be held for at least 119 days (4 months) in the absence of grand jury action so long as a preliminary hearing has been commenced by that date.

COURT'S ANALYSIS OF THE PEOPLE'S "GOOD CAUSE" ARGUMENTS

The Minimal Burdens Imposed in Preliminary Hearings

Preliminary hearings impose minimal burdens on the People. The standard of proof is reasonable cause, rather than clear and convincing evidence or proof beyond a reasonable doubt. The People are also not required to demonstrate reasonable cause to believe the crimes they have charged in a felony complaint have even been committed, so long as they provide reasonable cause to believe some felony was committed. CP 180.70 (1). Hearings are generally brief and "should be completed in one session". CPL 180.60 (10). Courts are not required to provide any factual or legal findings upon determining reasonable cause and typically issue summary rulings.

Although generally only non-hearsay evidence is admissible, the preliminary hearing statute also allows certain reports and statements admissible in grand jury proceedings to also be admissible. CPL 180.60 (8). A new statute authorizes preliminary hearings to be conducted virtually in every case, without either party's consent. (Chapter 123 and Chapter 126 (Part D) of the laws of 2020.) Such authority has also been provided by the Governor's Executive Orders. Not surprisingly, given these minimal burdens, most preliminary hearings quickly result in findings of reasonable cause. In Marongiu, the People would present the testimony of one witness at the hearing, the complainant, a healthy adult woman in her forties who lives in New York City. In Roberts, the People would present multiple witnesses.

The People's Common Arguments Regarding Preliminary Hearing Practice

In both Marongiu and Roberts the People first urge that "[p]reliminary hearings are generally avoided in felony practice" because they require the People to present the same evidence again to a grand jury.[FN4] The preferences of the Manhattan District Attorney's office with [*9]respect to preliminary hearings, however, are not at issue here. Moreover, in upstate New York, where preliminary hearings are much more common, sexual assault victims, like other complainants, testify at preliminary hearings. See, e.g., People v. Wicks, 76 NY2d 128 (1990); People v. Green, 110 AD2d 1035 (4th Dept 1985). As the Defendant points out in his submissions, victims also testify at preliminary hearings where violent crimes are alleged.

In both cases the People assert that the fact that preliminary hearings do not provide the secrecy of grand jury proceedings, "confirms that the legislature did not contemplate the regular use of preliminary hearings in violent cases with vulnerable civilian victims or witnesses".[FN5] In this Court's view, there is also no basis to believe that is true and the People cite no authority — in legislative history, case law or otherwise, to support it.

The People also assert that requiring the People to conduct preliminary hearings "will jeopardize witness safety and, understandably, may adversely affect witnesses' willingness to participate in the criminal justice process".[FN6] In this Court's view, these arguments are unpersuasive for two reasons. First, they presume that judges are powerless or unwilling to grant protective orders to vulnerable sexual assault victims testifying in preliminary hearings when the opposite is true. More fundamentally, however, the fact that witnesses may be reluctant to testify in criminal proceedings doesn't provide a license to indefinitely confine pretrial defendants with no evidentiary demonstration of reasonable cause.

Specific Good Cause Arguments in Marongiu

In Marongiu, the People urge that the complainant would be unable to testify virtually through Skype at home because she lacks "technological capability" and lives with five people in a small apartment including her children. They make no effort to explain why the district attorney's office could not simply lend her a computer for an hour or two and arrange for her to use it in a private space. Nor do they explain why they could not bring a computer to a nearby police precinct and have her testify there, with the assistance of an investigator, limiting the distance she would have to travel.

Assuming the complainant would be required to testify at the district attorney's office, the People cite nothing which would prevent that from occurring. Even if the complainant did face difficulty in traveling to the district attorney's office, that office could obviously assign an investigator to pick her up and bring her to the office and back.

The People argue that requiring the complaint to travel to the district attorney's office would result in "unnecessary travel and contact" with other people, creating a risk of infection to both the complainant and vulnerable patients she cared for as a home health care aide. But that contention obviously begs the question. The question is whether such travel, contact and [*10]testimony (assuming they would be required at all) are necessary to justify the Defendant's continued incarceration.

It is doubtless true that although the rate of COVID-19 infection in this State has significantly declined, we all face increased risks whenever we have contact with other people. We do it when we go to work, to the grocery store, to medical appointments or to the park. We face risks when we interact with people in our own households, since they may have been exposed to COVID. But, in some circumstances, such contact with other people may be necessary. During oral argument on this motion, in response to the Court's questions, the People indicated the complainant is a woman in her 40's with no underlying health conditions. The People would presumably ensure that all appropriate health protocols were observed were she to travel to the district attorney's office to testify. She would walk into an office, spend perhaps an hour or two there and go home. In this Court's view, these circumstances do not justify the defendant's continued incarceration in the absence of any evidentiary demonstration of reasonable cause for a period of five months.

Specific Good Cause Arguments in Roberts

In Roberts the People first complain that virtual Skype technology will constrain their ability to present digital evidence they would seek to introduced at the preliminary hearing since the technology "does not allow for the unlimited admission and display of digital evidence".[FN7] They assert the technology would not allow for testimony at the same time as a video was viewed. Thus, the People would be forced to play a video and then provide testimony about it, rather than presenting both pieces of evidence simultaneously. They also complain that the defendant, who is incarcerated, would be unable to see the video they would play. Not holding a preliminary hearing at all, and continuing to confine Mr. Marongiu on Rikers Island, would obviously avoid that problem.

The People note that the video could be placed into a power point, which would eliminate some of these problems, but that Microsoft does not recommend this for files of the size the People would play. A third method which would eliminate any of these problems would be to play the video over a Skype video call but "this method degrades video quality enormously, causing choppy playback, out-of-snyc audio, and missed frames".[FN8]

Understanding the arguments for why the People assert they cannot conduct a preliminary hearing also requires understanding how the proof at the hearing would come in. The complainant described her assailant to the police as "a tall, thin black male wearing a black scarf covering the bottom half of his face".[FN9] The police then obtained surveillance footage from the [*11]apartment showing a man at the relevant times "exactly as described by the victim".[FN10] They created a wanted poster, tips led them to the Defendant and his building and they showed a still photograph from the surveillance video to a person who knew the Defendant. That person identified the person as Mr. Roberts. They tracked the location of the complainant's Iphone, leading them to the Defendant who was wearing the same clothes seen on the video. They arrested the Defendant and found the complainant's Iphone in his apartment. The Defendant was found to be a contributor to DNA on the victim's pants.

The police prepared a photo array with the Defendant's picture but she identified a different person as her assailant. Summarizing the extraordinary burdens the People would face to demonstrate reasonable cause to believe the Defendant committed a felony at a preliminary hearing the People assert:

At a preliminary hearing in this case, the People would need to introduce the following testimony and evidence to show reasonable cause to believe that the defendant committed a felony: the testimony of the victim, the testimony of the civilian who identified the defendant from the video surveillance footage, the testimony of the OCME criminalist, the testimony of Detective Ortiz, and the testimony of either Detective Jabar or Sergeant Rodriquez, along with the introduction of video surveillance from [the alleged crime location], at least two still images from that footage, at least two photographs of the defendant and the clothing he was wearing at the time of his arrest, and the reports and files of the OCME for this case. The video surveillance from [the crime location] consists of seven different files/camera angles, with each file ranging in size between 12 MB to 77 MB. The files of still images from the video surveillance footage and files of the photographs of the defendant and his clothing after his arrest are all between 1 MB and 5 MB in size, bringing the total size of the People's digital evidence for the preliminary hearing to more than 500 MB.[FN11]

* * * ** [T]he constraints on conducting a Skype for Business preliminary hearing render it impossible, under the circumstances, for the People to adequately present their case.[FN12] * * * ** Even without the defendant, there would be at least six separate individuals (the judge, the defense attorney, the prosecution, and 3 remote witnesses) who would have to successfully download the attached video during the hearing and then simultaneously play the video on their individual computers. It would be all but impossible to ensure that each hearing participant was watching precisely the same piece of footage at the same [*12]time . . .[FN13](emphasis added).

In this Court's view, the contention that all of this evidence would be necessary to establish reasonable cause at a preliminary hearing is not accurate. First, in this Court's view, it is not clear why the People would need to introduce the surveillance video (as opposed to the still photographs taken from it) at all. Even if this was required, however, and technical problems prevented playing the video simultaneously, the People could simply give it to the Court to view. Or, they could only play the relevant portions of it, with less than 7 camera angles. Nor would the requirement that the video first be played and then testified about pose an undue obstacle.

The Court does not understand why the People would need to introduce the testimony of the person who initially identified the Defendant as Mr. Roberts or the DNA expert. Rather, based on the description of the evidence provided by the People, they would appear to be able to establish reasonable cause by presenting the testimony of the victim, the lead detective and one of the detectives who arrested the Defendant and found the complainant's cell phone in his apartment.

The People next assert that the "victim is unable to testify due to her career as an ICU nurse".[FN14] They point out that she does not want to testify from a personal computer, fearing her personal information might be compromised, and so would have to travel from upstate New York to the Manhattan district attorney's office to testify. Additionally they raise this health concern:

At the time of the incident, the victim was working in a New York City hospital and was in direct contact with patients afflicted with COVID-19, with her last exposure on May 3. Accordingly, she could be positive and contagious for the virus, but currently asymptomatic. Requiring the victim to return to the City would endanger the lives and safety of all individuals with whom she would come into contact with.[FN15]

Worse, the People argue, since the victim works at an upstate New York hospital now, travel would expose her to the risk of infection, and the time she had to take to provide testimony "would prevent her from assisting with the COVID-19 pandemic at the hospital where she is employed".[FN16]

The notion that the complainant would have to travel to New York City to provide virtual testimony in this case, however, in this Court's view, is not accurate. This Court is not [*13]responsible for prosecuting this action, but even off the cuff can think of two easy options to avoid such travel: asking the district attorney's office in the jurisdiction where the complainant lives to allow her to come to their office or, given that the complainant's concern is using her own personal computer, lending her a computer. The People could even have an investigator travel to her home, set up a computer and then take the computer back if they wanted to.

The People also apparently contend that because the complainant may have been exposed to COVID prior to May 3 (with apparently no evidence she ever contracted the virus), she poses a significant health threat today, three months later. This Court, at least, is not aware of any medical evidence which would support such a conclusion. Nor, apparently, is the hospital where the complainant has been working, treating patients, since May 3. The contention that a preliminary hearing should not be held because it would take the complainant away from her work treating COVID patients is similarly inaccurate. In addition to the fact that the complainant could testify remotely without traveling, the COVID pandemic has thankfully receded and has never raged in upstate New York to the degree it did in New York City.

The Common Argument That Sexual Assault Victims Should Not Be Required to Testify at Preliminary Hearings

In both cases, the People argue that the "equities weigh against requiring the People to conduct a preliminary hearing".[FN17] They point out that sexual assault victims may be traumatized by being required to testify in court proceedings. They outline how the complainants have been traumatized in these cases. They cite to legislative enactments which protect the victims of sexual assault. In Marongiu, the People assert: "The impact on the victim, standing alone, is a compelling reason to grant the extension sought by this motion".[FN18] Thus, the People appear to assert that victims of sexual assault should simply never be required to testify at preliminary hearings, although during arguments on these petitions the People denied that was their position. Indeed, the People do not even assert that they have discussed the idea of having the victim of Mr. Marongiu's alleged assault testify at a preliminary hearing with her.

The Defendant also points out that since the advent of preliminary hearings in New York County, the district attorney's office has presented the testimony of multiple victims of significant violent crimes and had complainants travel to their office to testify, including complainants with COVID risk factors.[FN19]

This Court has no doubt that testifying in any kind of proceeding may be traumatic for a crime victim, particularly the victims of sexual assaults as horrific as the two alleged to have occurred here. The Court well understands why the People seek to protect these two women, who have already been subject to great trauma. This Court would like to protect them also. But, in our criminal justice system, we do not allow criminal defendants to be indefinitely kept in jail [*14]without the presentation of evidence. One cost of that protection is the trauma which the complainants would undoubtedly suffer in these cases. Sexual assault victims may be traumatized by testifying at preliminary hearings, in grand juries or in jury trials. But defendants charged with sexual assaults are not exempt from the requirements of due-process.

Brooklyn Criminal Court Judge Michael Kitsis rejected a similar argument for a defendant under Docket CR-010061-20KN in a bench ruling on June 16:

[I]n order to hold the Defendant in custody, pending disposition of his charges, he must be afforded a preliminary hearing in a timely manner. And just like the statute, the right to a preliminary hearing does not depend on which felony charge the Defendant is being held on, under the executive order. That means a felony charge under Article 130 [defining sex offenses] is [FN20]no different from other felony offenses.[FN21]

Judge Kitsis acknowledged the trauma experienced by sexual assault victims but said that he had not received particularized information which warranted exempting two sexual assault complainants from being required to testify at a preliminary hearing. With respect to the one complainant who would definitely testify, he ruled that her name would be withheld. He discussed technology issues with the attorneys and indicated he was amenable to not allowing the Defendant to see the complainant at any time during her testimony. He explained the anticipated procedure to the Defendant who was in custody, telling him: "I want to make sure that the People have evidence to a sufficient degree that the law requires in order to hold you. Do you understand that sir?".[FN22]

In other words, instead of marshaling every possible argument for not conducting a hearing, he focused on how to conduct one, while protecting the privacy of the complainant and the due-process rights of the defendant.

The Equities Of Confining Defendants Without Hearings During COVID

The COVID pandemic, of course is also a factor here not only for the complainants and prosecutors but for the defendants. Whatever inequity may arise from detaining criminal defendants without evidentiary demonstrations of reasonable cause during normal times, those concerns are greatly compounded now. These two defendants are not simply being detained, but being detained under jail conditions which put them at significant risk of infection. see People ex rel. Stoughton v. Brann, 67 Misc 3d 629, 2020 NY SlipOp 20081 at 8 (Sup Ct, NY County 2020 [Dwyer, J.]) (granting and denying the release of pretrial detainees due to COVID risks) noting that "communicable diseases could not ask for a better breeding ground than a crowded prison".

[*15]The Failure to Seek Protective Orders

A preliminary hearing regarding a vulnerable sexual assault victim who must relive their trauma by testifying can be significantly mitigated by protective orders to greatly limit their exposure. The People did not ask for any in either of these two cases, preferring to simply insist that they should not be required to conduct hearings at all.

Among the kinds of protective orders which could have been sought in these preliminary hearings would be the shielding of the names of the complainants; a limitation on those persons present at the virtual proceeding to the attorneys, defendant and necessary court staff and configuring the virtual proceeding so that the complainant would not have to see the Defendant, who would be incarcerated. The May 7th EO provides that during a virtual preliminary hearing, "the Court may, for good cause shown, withhold the identity, obscure or withhold the image of, and/or disguise the voice of any witness [including a crime victim]. . . provided that the Court is afforded a means to judge the demeanor of a witness". As Judge Kitsis considered, the Criminal Court here could have prevented the defendants from seeing the complainants.

The recently enacted statute authorizing virtual preliminary hearings also requires them to be videotaped with recordings provided to the parties. In this Court's view, however, there is not a judge in this state who would not grant a protective order prohibiting the recording of the testimony of a rape victim and the provision of that recording to the victim's accused rapist. The People see it differently:

CPL 180.65 [the new statute] requires that courts video-record testimony at preliminary hearings and provide a copy to the defense. As a result, compelling the People to proceed via preliminary hearing in this case will require the victim of a sex offense to recite the events of her victimization into a recording camera, in the presence of her assailant, while knowing that a copy of the video footage will be provided to him after the fact absent a successful motion for protective measures by the People, which, even if granted, will not alleviate the fact that there will now be a video-recording of her re-living the defendant's assault.[FN23]

The Factual Assertions Supporting Good Cause Extensions Were Stale

One final point is that in seeking the good cause extensions at issue here, until August 2, the People primarily relied upon affirmations they submitted on May 28th and May 29th. These were supplemented by brief letters which said the previous circumstances outlined in their earlier submissions continued unabated and that the People continued to be unable to establish reasonable cause without victim testimony.

In many circumstances, an application for relief based on an affirmation more than two months earlier would not be problematic. But here, the People's claims in their affirmations [*16]relied in large part on the circumstances of the COVID pandemic as they existed on May 28 and 29. See May 28th affirmation, ¶ 5; May 29th Affirmation, ¶ 5 ("Our City is in the midst of a unprecedented public health crisis.)" Indeed, the People continue to rely on these May 28th and May 29th affirmations even now, in responding to the instant petition, although the People also submitted a new affirmation in response to the instant petition in Roberts. Obviously, however, the circumstances of the COVID pandemic change every day.

Even more importantly, the factual landscape today offers much less support for the People's position than existed on May 28th and 29th. The COVID infection rate, hospitalization rate and death rate in New York City are significantly lower now. On May 28th, for example, the date of the People's affirmation in Marongiu, the City Health Department reported 641 new COVID cases. On May 29th, the date of the People's affirmation in Roberts, the City Health Department reported 644 new cases. On July 26th, 86 new cases were reported.[FN24]

THE CRIMINAL COURT LAWFULLY EXERCISED ITS DISCRETION

The Legal Standard

"The scope of collateral review by a court hearing a habeas corpus petition . . . is quite narrow, being limited to a consideration of whether the denial constitutes an abuse of the court's statutory discretion . . . or a violation of a constitutional standard prohibiting excessive bail or its arbitrary refusal. It is not the function of the habeas court to undertake a de novo review of the determination made by the nisi prius court." People ex rel. Hunt v. Warden of Rikers Is. Correctional Facility, 161 AD2d 475 (1st Dept 1990), citing People ex rel. Klein v. Krueger, 25 NY2d 497 (additional citation omitted), lv. denied, 76 NY2d 703.

"The proper scope of inquiry for a habeas court reviewing another court's bail determination is whether the bail court abused in discretion by denying bail without reason or for reasons insufficient in law". People ex rel. Watters v. Kross, 106 AD3d 415 (1st Dept 2013) (quotation omitted); see also People ex rel. Kuby v. Merritt, 96 AD3d 607 (1st Dept 2012), lv. denied, 19 NY3d 813; People ex rel. Schreiber v. Warden of the Queens House of Detention for Men, 282 AD2d 555 (2nd Dept 2001).

Here, of course, the claim is not that the Criminal Court set excessive bail but that it acted unlawfully. More precisely, since this Court has already concluded, based on the Second Department's rulings, that the Criminal Court was entitled to grant a "good cause" extension of the requirement to conduct a preliminary hearing, the question is whether the Criminal Court acted unlawfully in making its discretionary good cause determinations. The defendants, of course, are being held on bail conditions and while the issue here diverges from most cases where habeas corpus petitions are filed, the same general review standards apply. That is, this Court, in reviewing the Criminal Court's good cause determinations, is required to provide the Criminal Court with the same deference it would provide were this a question of whether the Court had set excessive bail or made some other discretionary securing order decision.

Also relevant is the precise discretionary determination at issue, namely, whether the Criminal Court had good cause to extend the requirement for the People to conduct a preliminary hearing in the absence of grand juries. The concept of good cause to extend the time to conduct a preliminary hearing, as noted supra, is not provided for either under the Criminal Procedure Law or the Governor's Executive Orders. As the Court of Appeals held in defining the parameters of a trial court decision concerning a defendant's right to obtain substitute counsel for good cause: "Good cause determinations are necessarily case-specific and therefore fall within the discretion of the trial court". People v. Linares, 2 NY3d 507, 510 (2004).

This Court is aware of one published opinion which has addressed what good cause to not conduct a preliminary hearing might mean. People ex rel. Arogyaswamy v. Brann, 2020 NY SlipOp 20126 (Sup Ct, Queens County June 4, 2020 [Pandit-Durant, J.]). There, the Court found the combination of the technology challenges necessitated by the commencement of virtual preliminary hearings and the need to protect an undercover officer's safety sufficient to constitute good cause to suspend the requirement to obtain an indictment under CPL 180.80 or conduct a preliminary hearing within the requisite CPL 180.80 time frame. Where good cause to extend the 180.80 deadline exists because of the absence of grand juries, however, the May 7th EO does not require preliminary hearings prior to 45 days and the 45 day limit had not expired in Arogyaswamy.

CPL 180.80 elaborates on the good cause standard by providing that it "must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the proscribed period or rendered such action against the interest of justice". CPL 180.80 (3). Under CPL 190.80, good cause "must consist of some compelling fact or circumstance which precluded grand jury action within the prescribed period or rendered the same against the interest of justice". CPL 190.80 (c) (emphasis added). There has been scant case law defining good cause under either CPL 180.80 or 190.80. In People v. Sweeney, 143 Misc 2d 175 (New York City Criminal Court, 1989 [Allen, J.]), the Court found that a delay of a couple of hours past the 144 hour 180.80 deadline necessitated by court congestion constituted good cause.

Basis for Court's Determination

Although this Court disagrees with the determinations the Criminal Court made in these cases, this Court holds that the Criminal Court did not abuse its discretion. First, the determinations were made following submissions by the parties. The Defendant has complained both about the procedural manner in which the People sought their extensions and the extent to which the Criminal Court sought defense responses. But the bottom line is that the defense was not deprived of the right to make submissions prior to the Court's rulings.

The Court explained its determinations (albeit briefly) in written decisions indicating the Court had considered the applicable legal standards. The Court's orders were limited in time to 30 day increments, presumably so that the Court could review its determinations in light of changed circumstances and new Executive Orders and court decisions. While the People's factual assertions, in this Court's view, were stale, the Criminal Court was obviously able to take judicial notice of the changing conditions relevant to COVID, an issue on the forefront of everyone's minds these days, and incorporate those facts into its decisions.

The People point out that Judge McGrath, who authorized these extensions, has rejected good cause extension applications in other cases, which, the People point out, indicate the Court did not simply act as a "rubber stamp". The People also outlined facts in their submissions in both cases which could have provided the Criminal Court with bases to grant their rulings. According to the People, Judge McGrath in other cases has considered whether the People are able to establish reasonable cause without the testimony of vulnerable victims before granting good cause extensions. Where reasonable cause can be established without such victim testimony, they say, Judge McGrath has required the People to go forward with such alternate proof.

The difficulty of making a full evidentiary presentation in Roberts was a factor the Criminal Court was entitled to consider. The trauma experienced by the complainants in these cases was also a factor the Criminal Court was entitled to consider. Although this Court does not know which of the People's arguments were most compelling to the Criminal Court, it suspects this victim trauma argument may have been the most persuasive. Whether such concerns are compelling enough to justify a defendant's continued incarceration under the unique circumstances extant in our state today, in this Court's view, is a matter of judgment, on which reasonable judicial minds may differ.

Of course, each of these complainants, absent COVID, would have been required to testify in person, before the grand jury. As the People argue, however, there are three circumstances which make victim testimony more difficult in a preliminary hearing. The first is the requirement to testify twice: once during the preliminary hearing and then again before the grand jury. The second is the absence of any statutory secrecy protections during a preliminary hearing. Finally, of course, while a complainant who testifies in the grand jury is not subject to cross-examination, such cross-examination is conducted in preliminary hearings.

In addition to the general deferential review standard applicable to habeas corpus petitions and the difficulty of determining that a court abused its discretion on an issue as amorphous as "good cause" there is an additional reason for deference here. This Court has never conducted a virtual preliminary hearing. They are generally conducted by criminal court judges, like Judge McGrath. Thus, as this Court evaluates abstract legal arguments, it must also be cognizant that, on the ground, in this new, difficult and changing reality, Judge McGrath has actually been conducting preliminary hearings and becoming acquainted with all of the real-world issues which arise in them.[FN25]

The Significance of Grand Jury Resumption

The Second Department, in this Court's view, has also given trial courts an important signal in its decisions: that the anticipated imminent empaneling of grand juries is key to good cause determinations in these cases. Each of the Second Department's two decisions consumed four sentences. The decisions did not recite a single fact at issue in these cases. Two of the four [*17]sentences, however, addressed the prospective re-opening of grand juries and the required schedule for disposing of felony complaints or conducting preliminary hearings in light of those anticipated reopenings. These points are not noted as any implicit criticism of the length or legal reasoning of these decisions. This Court, like other courts, often makes brief rulings which do not explain all of its legal conclusions.

This Court notes the Second Department's emphasis on the re-opening of grand juries because, to this Court, it appears to essentially make the following point. Grand juries are about to re-open. Complainants in these cases will be required to testify before these grand juries within a month. Given that, it is not reasonable to require those complainants and the People to make the same difficult evidentiary presentations now, while our courts are continuing to struggle with the exigencies of the COVID pandemic. The People make the same point in Roberts, arguing that the expected imminent empaneling of grand juries weighs against requiring preliminary hearings now.[FN26]

This Court respectfully disagrees that the anticipated reopening of grand juries should be a dispositive consideration with respect to the good-cause issue here. An unlawful detention does not become acceptable because it will only last another month. Of course, the Second Department did not imply otherwise. What is at issue in these writs, however, is whether these defendants may be held in jail with no evidentiary demonstration of reasonable cause today — not weeks from now.

The precise timing of how grand juries will re-open for in-person proceedings during COVID will also be subject to uncertainty, both in the coming weeks and as long as the COVID pandemic persists. This Court is aware that the Manhattan Supreme Court, Criminal Term is making extraordinary efforts to ensure that a limited number of grand juries are commenced on August 10th. Grand juries have resumed outside New York City and this Court understands that process has gone smoothly. But the commencement of such grand juries in New York City will also depend, among other things, on how many citizens report for grand jury duty, how many are excused, whether any glitches arise in the process and whether any COVID infections flare among grand jury participants.

Other than incarcerated defendants, the law and the Governor's Executive Orders generally provide no authority for grand jury witnesses to testify remotely. Thus, the same witnesses whom the People contend cannot testify virtually because of the trauma of such virtual testimony and the risk of infection today, will have to testify in-person, in a closed indoor room, in front of up to 23 live people, an assistant district attorney and a court reporter, while encountering numerous other staff and courthouse visitors in short order.[FN27]

The Defendant also points out that the future course of the pandemic is uncertain. All of [*18]us hope for a continued, successful, phased re-opening of the court system. All of us fervently wish that three months from now, things will be much better than they are today. But that may also not occur. Our progress might stall or even be reversed if infections flare in the fall and winter. If that happens, we may be back to the same questions we confront here, asking, again, how long the People will be permitted to hold sexual assault defendants in jail without hearings or indictments.

This Court finally rejects the Defendants' arguments that the procedures here violated constitutional due-process. Obviously, the Second Department did not believe allowing defendants to be confined with no evidentiary demonstrations of reasonable cause for a period as long as five months violated constitutional standards. Nor has the Defendant cited any case which has found any regime comparable to the one the State has implemented during the COVID crisis unconstitutional.

Conclusion

Winston Churchill famously said: "The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country".[FN28] Mr. Marongiu and Mr. Roberts are accused of the category of crime, brutal sexual assaults, which are the most reviled of any in our society.

This Court has worked with the Manhattan district attorney's office for 13 years. It would be surprised if the basic contours of the evidence which prosecutors have outlined in these cases would not end up being reflected in testimony before a grand jury. Assuming that occurs and indictments are returned, it might be asked, what difference does it make that these two men were held in jail for three or five months before that grand jury evidence was finally presented?

In this Court's view, the delay has made a very consequential difference. In our system, we don't allow police officers or prosecutors to decide what quantum of evidence is sufficient to allow a defendant who is presumed innocent to be confined in jail until trial. We require assessments by impartial magistrates or citizens in grand juries because those judges and citizens are the ultimate check on the coercive power of the state; the power the founders were so fearful of and so intent and brilliant in constraining.

Due-process in easy cases is easy. With respect to the issue here, defendants charged with crimes for which reasonable cause may be established through the testimony of one currently serving police officer are not being held indefinitely with no evidentiary demonstrations of reasonable cause.

The provision of due-process only becomes difficult in the hard cases. It is in the hard cases that due-process protections begin to erode. That is what is occurring here, with defendants charged with horrific crimes, victims whom no one would wish to subject to additional trauma, a justice system struggling to operate normally in the face of an unprecedented global health crisis and, in the end, the implicit argument that this isn't really that important, since it will probably end soon anyway.

For all of the reasons outlined in this Decision and Order, the petitions are denied.

[*19]August 5, 2020

Daniel Conviser, A.J.S.C. Footnotes

Footnote 1:May 28, 2020, People's "Motion Seeking Good-Cause Extension Under CPL 180.80 and 190.80". ¶ 2, (the "May 28 Affirmation") submitted in response to the Petitioner's instant motion.

Footnote 2:May 28 Affirmation, ¶ 21; Argument, p 7.

Footnote 3:The repetition of the phrase "to the extent that" is contained in the Order.

Footnote 4:May 28 Affirmation, ¶ 13; People's May 29th "Motion Seeking a Good-Cause Extension" in People v. Roberts (the "May 29th Affirmation"), ¶ 13. The People repeated a number of their general arguments, verbatim, in the affirmations submitted in these two cases, as indicated here.

Footnote 5:May 28 Affirmation, ¶ 13; May 29th Affirmation, ¶ 13.

Footnote 6:Id.

Footnote 7:May 29th Affirmation, ¶ 14.

Footnote 8:Id., ¶ 14.

Footnote 9:Id., ¶ 19.

Footnote 10:Id., ¶ 20.

Footnote 11:Id., ¶ 26.

Footnote 12:Id., Argument, p. 13-14.

Footnote 13:May 29 Affirmation, Argument pp. 13-14. During argument, the People said that what they meant by saying that six people would have to play these videos simultaneously, was that four people would have play the videos simultaneously: the judge, prosecutor, defense attorney and the applicable witness (rather than all three witnesses).

Footnote 14:Id., p. 12.

Footnote 15:Id., p. 13.

Footnote 16:Id.

Footnote 17:May 28 Affirmation, Argument, p. 7; May 29 Affirmation, Argument, p. 10.

Footnote 18:May 28 Affirmation, Argument, p. 9.

Footnote 19:Defendant's July 17th Verified Petition, pp. 12-13.

Footnote 20:The word in the transcript here is "as" rather than "is" but that is apparently a typo.

Footnote 21:Transcript ("Tr") pp. 21-22.

Footnote 22:Tr., p. 31.

Footnote 23:People's Affirmation and Memorandum of Law in Opposition to Defendant's Petition in People v. Roberts, unnumbered page 16. This argument was apparently not made to the Criminal Court and the new statute took effect on July 17th.

Footnote 24:New York City Health Department, COVID Daily Count of new infections, hospitalizations and death, available on the web.

Footnote 25:Judge McGrath, in addition to being a criminal court judge, is also the Administrative Judge of the Manhattan Criminal Court. Judge McGrath's status as an administrative judge, however, in this Court's view, is not relevant here.

Footnote 26:People's Affirmation and Memorandum of Law in Opposition to Defendant's Petition, July 30, 2020.

Footnote 27:During oral argument on the Marongiu petition, the People indicated that it was their intention to prioritize cases in which no preliminary hearings had been held for grand jury action. This would obviously make sense since it would limit the time during which these defendants were held without an evidentiary demonstration of reasonable cause.

Footnote 28:Speech to the House of Commons, July 20, 1910.