People ex rel. Pacheco v Brann

[*1] People ex rel. Pacheco v Brann 2020 NY Slip Op 20256 Decided on June 8, 2020 Supreme Court, Richmond County Jeong, 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 June 8, 2020
Supreme Court, Richmond County

The People of the State of New York ex rel. Eliza Pacheco, on behalf of JOHN HAWKINS, Petitioner,

against

Cynthia Brann, Commissioner, New York City Department of Corrections, Respondent.



85069-2020
Alexander B. Jeong, J.

The Petitioner filed this writ of habeas corpus claiming that the People denied the Petitioner's rights, pursuant to CPL §180.80, and as a result he is illegally detained. The People and Corporation Counsel opposed the writ and submitted various affidavits and exhibits in support. In addition, oral arguments were conducted.

To the extent detailed in the below decision, the Petitioner's writ is denied.

BACKGROUND

/i>

I. Executive and Judicial Orders relating to COVID-19

Due to the COVID-19 pandemic, New York State Chief Administrative Judge Lawrence Marks and New York State Governor Andrew Cuomo issued a variety of Orders that affected the substantive and procedural rights codified in the Criminal Procedure Law. The Governor declared a State disaster emergency because of the COVID-19 pandemic on March 7, 2020. See, Executive Order 202. One week later, on March 13, 2020, Chief Administrative Judge Marks ordered that, due to the COVID-19 pandemic, Grand Juries will not be empaneled absent extraordinary circumstances. Two days later, he also ordered the postponement of all non-essential court functions and detailed, nine days later, that "essential matters" include arraignments; bail applications, review and writs; temporary orders of protection; resentencing of retained and incarcerated defendants; and essential sex offender registration act (SORA) matters. [*2]See, AO/78/20.

Governor Cuomo acknowledged Chief Judge Marks' Orders and, "[i]n accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis," he tolled any specific time limits for commencement, process, or proceedings as prescribed by the Criminal Procedure Law. See, Executive Order 202.8. Subsequently, on May 7, 2020, Governor Cuomo issued Order 202.28 which continued the earlier suspensions and modifications. However, the Order also provided substantive and procedural modifications concerning the inability to impanel Grand Juries with respect to incarcerated defendants. Specifically, the Order modified CPL §§180.60, 180.80, and 190.80 and it states as follows:

IN ADDITION, I hereby temporarily suspend or modify the following if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or necessary to assist or aid in copying with such disaster, for the period from the date of this Executive Order through June 6, 2020:

The suspension of the provisions of any time limitation contained in the Criminal Procedure Law contained in Executive Order 202.8 is modified as follows:

Section 180.60 of the Criminal Procedure Law to provide that (i) all parties' appearances at the hearing, including that of the defendant, may be by means of an electronic appearance; (ii) the Court may, for good cause shown, withhold the identity, obscure or withhold the image of, and/or disguise the voice of any witness testifying at the hearing pursuant to a motion under Section 245.60 of the Criminal Procedure law — provided that the Court is afforded a means to judge the demeanor of a witness;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; andSection 190.80 of the Criminal Procedure Law, to the extent that 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 defendant has been provided a preliminary hearing as provided in section 180.80

The above shows that the requirements of CPL §§180.80 and 190.80 are modified due to the medical emergencies related to COVID-19.

II. The Underlying Matter

The Petitioner was arraigned on April 16, 2020. On May 10, 2020, the People filed a letter which requested that the Court enter a finding of good cause under CPL §180.80(3) due to [*3]the inability to empanel a Grand Jury. On May 13, 2020, the Honorable Tamiko Amaker denied the Petitioner's release and found 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."

LEGAL ANALYSIS

I. Petitioner's request for release pursuant to 180.80

The Petitioner's writ requests the Petitioner's release, pursuant to CPL §180.80 because the People have not followed applicable statutory requirements. The Petitioner argues that the People improperly requested, and the court improperly granted, a good cause finding on the basis that they "conflated the preliminary hearing rights and procedures with those of the grand jury and, mysteriously, found good cause for one was equivalent to good cause for the other, despite the prosecution's complete failure to provide facts specific to the conduct of electronic testimony of witnesses before a judge, as opposed to the physical convening of a group of more than twenty civilians, witnesses, a court reporter, and others." See, Pet. Writ, ¶37. In other words, it is based on the premise that the People were obligated, in their good cause application (submitted within one-hundred, forty-four hours of arrest) to provide an explanation for why they cannot conduct a grand jury presentation and, at the same time, detail why they cannot conduct a preliminary hearing within the same time period. The People's opposition argues that they were not obligated to provide an explanation for why they cannot conduct a preliminary hearing in their original application. They argue that, instead, the People's May 10, 2020 application was only required to detail why they were not able to conduct a grand jury presentation.

During oral arguments, the Petitioner's argument centered around the concept that the respective statutes concerned the "disposition" of the felony complaint and therefore, if the preliminary hearing occurs within one-hundred and forty-four hours, the felony complaint is disposed within the applicable timeframe.

The Court initially notes that this Court is not an appellate court but instead must determine whether the prior decision was supported by the record. See, People ex rel. Klein v. Krueger, 25 N.Y.S2d 497, 307 N.Y.S.2d 207 (Court of Appeals, 1969). As stated by the Court of Appeals, in the context of a writ of a habeas corpus concerning excessive bail, the prior determination "will not be overturned unless there is the 'invasion of constitutional right,' and not a 'difference of opinion.'" Id. at 500, quoting People ex rel. Lobell v. McDonnell, 296 NY 109, 113, 71 N.E.2d 423, 425 (Ct. Appeals, 1947). Therefore, this Court's determination on a writ is different from an appellate court's review. The main focus of the Petitioner's arguments is based on the belief that the court and the People misapprehended and misinterpreted the interplay of various statutes and Executive Orders. In other words, the Petitioner is arguing that the court was wrong to grant the People's good faith application without also requiring the People to provide a good faith explanation for failing to conduct a preliminary hearing. This is a basis for appeal, and the Court does not believe that a writ is the appropriate remedy because this Court's obligation is to determine whether the court violated "constitutional or statutory standards." People ex rel. Payne v Fludd, 171 AD3d 776, 95 N.Y.S.3d 895 (2nd Dept., 2019). Therefore, the Petitioner's argument as to whether the court conflated the Petitioner's grand jury rights with the preliminary hearing rights is denied on procedural grounds. As detailed below, it is also denied on substantive grounds.

CPL §180.80 requires that a defendant, in custody and upon whom a felony complaint is filed, be released after one-hundred and forty-four hours (upon his request) when there is no disposition of the felony complaint or commencement of a hearing. The defendant may remain in custody, in relevant part, if the People file a written certification that an indictment has been voted (CPL §180.80(2)); an indictment or prosecutor's information is filed (Id.), or "the court is satisfied that the people have shown good cause why such order of release should not be issued." CPL §180.80(3). The good cause requirement, which is the subject of the instant writ, "must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice." Id.

A review of CPL §180.80 shows that it parses out disposition, hearing, and good cause. Specifically, it refers to "the failure to dispose of the felony complaint or to commence a hearing " Additionally, CPL §180.80(3), which discusses good cause, explicitly leaves out the word "hearing". The section states, "the court is satisfied that 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 disposition of the felony complaint " [emphasis added] See, CPL §180.80(3). The above shows that, the hearing cannot be inclusive in the definition of "disposition" because they are considered separate concepts as specifically stated in the first paragraph (i.e. "without either a disposition of the felony complaint or commencement of a hearing"), whereas in the "good cause" paragraph in subsection 3, the hearing is specifically and purposefully excluded. This rationale is encapsulated in the concept that the court can ascertain the legislative intent from its language to apply to the current situation in a manner consistent with that intent. See, Rankin v. Shanker, 23 NY2d 111, 295 N.Y.S.2d 625 (Ct. Appeals, 1968). Moreover, the Court can assume that the Legislature investigated the subject matter of the legislation (Matter of Malpica-Orsini, 36 NY2d 568, 370 N.Y.S.2d 511 (Ct. Appeals, 1975)) and knew how to draft a bill to effectuate their objectives (People v. Shafer, 30 AD2d 213 (4th Dept., 1968)). Where existing statutes encompass the same subject matter, the Legislature is presumed to act with deliberation and with knowledge thereof. McKinney's Cons.Laws of NY, Book 1, §222; Davis v. State of New York, 54 AD2d 126, 388 N.Y.S.2d 143 (3rd Dept., 1976).

As the Petitioner was arraigned on April 16, 2020, the People would normally be required to act, pursuant to CPL §180.80, on or about April 22, 2020. However, due to Executive Order 202.8, any applicable timeframes were tolled. This continued until May 7, 2020, when Governor Cuomo issued Executive Order 202.28. This Order continued the tolling but also provided substantive and procedural modifications concerning the potential inability to impanel grand juries [FN1] . Specifically, the Order modified CPL §180.80, "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 " See, Executive Order 202.28. Additionally, the Order modified CPL §190.80 "to the extent that a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony [*4]complaint beyond forty-five days due to the inability to empanel a grand jury due to COVID-19, which may constitute such good cause provided that such defendant has been provided a preliminary hearing as provided in section 180.80."

Pursuant to Executive Order 202.28 the People submitted an application for a finding of good cause under CPL §180.80(3) due to the inability to empanel a Grand Jury because of COVID-19. The court granted the application and this Court finds it is supported by the record. The ability to convene a Grand Jury has been made impossible by the suspension of Grand Jury proceedings due to the COVID-19 pandemic. Additionally, in reviewing the applicable statutes and Executive Orders, there is no requirement that the People are required to explain in their application why they could not conduct the preliminary hearing in the original one-hundred and forty-four hours.

A reading of the applicable statutes and Executive Orders show that the People may extend a detention beyond the one-hundred and forty-four hours based on good cause and they may further extend that detention beyond 45 days provided they conducted a preliminary hearing. Specifically, CPL §180.80(3) permits a defendant to be detained if the court is "satisfied that the people have shown good cause why such order of release should not be issued." See, CPL §180.80(3). Executive Order 202.28 modified the statute 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." See, EO 202.28. The language is plain and unambiguous — the People must show good cause, within one hundred and forty-four hours from May 8, 2020 that a defendant should continue to be held on a felony complaint. The Executive Order does not discuss disposition of the felony complaint or state that the People must show good cause, in that time period, about why they cannot conduct a preliminary hearing.

The Petitioner's argument, that the preliminary hearing must be conducted within one-hundred and forty-four hours, based on the necessity of "disposing" the felony complaint, is a hypertechnical argument that was raised, for the first time, at oral arguments. The Court notes that this concept was not raised in the submitted writ. Essentially, this argument is based on the concept that the felony complaint must be "disposed" within the one-hundred and forty-four hours and that such occurs, inter alia, upon completion of the preliminary hearing when the action is transferred to superior court. They rely on CPL §180.80(3) which states, in part, that "[s]uch good cause must consist of some compelling fact or circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice." See, CPL §180.80(3).

In order to parse through the above analysis, a review of various statutes and concepts are necessary. CPL §100.05 states that "[a] criminal action is commenced by the filing of an accusatory instrument with a criminal court" and a felony complaint, along with an indictment are accusatory instruments. See, CPL §§100.05, 1.20(1), 1.20(8), 1.20(16), and 1.20(17). Additionally, a criminal action "commences with the filing of an accusatory instrument against a defendant in a criminal court [and] includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument." See, CPL §1.20(16). Common sense dictates that a defendant cannot be held without an accusatory [*5]instrument being in effect and, as shown above, the original accusatory instrument can be replaced by filing "further accusatory instruments directly derived from the initial one." See, CPL §1.20(16). An "indictment" is defined as "a written accusation by a grand jury, filed with a superior court." Taking these provisions en toto, some type of grand jury action is clearly necessary for the disposition of the criminal complaint as there cannot be a criminal action without a pending accusatory instrument. If the Petitioner's argument is valid, then the felony complaint would be "disposed" upon the transfer to superior court and there would not be any pending accusatory instrument. Essentially, a defendant would be held in custody (because the People would have met their burden at the preliminary hearing) and the charges would be, for lack of a better term, in limbo until an indictment is filed. This is not logical and is antithetical to all criminal tenets since there would be a period of time when a defendant is held while there is no accusatory instrument filed against him/her. Instead, the common-sense approach is that the "disposition" begins when the preliminary hearing finishes and the felony complaint is transferred with the "disposition" being completed upon filing of the new accusatory instrument.

CPL §180.70 details potential proceedings on the felony complaint and the disposition of the felony complaint after the hearing. It states that, at the conclusion of a hearing, the defendant can be held for action of the grand jury and the felony complaint is then forwarded, with supporting documents, to the superior court. See, §180.70(1). Until these papers are received, criminal court still retains jurisdiction. Id. This shows that the felony complaint is forwarded upon completion of the hearing and is not "disposed." Instead, it is the beginning of the "disposition" process with completion taking place when the new accusatory instrument is filed.

The above concept is supported by reviewing CPL §180.40 which is entitled "Proceedings upon felony complaint; application in superior court following hearing or waiver of hearing." The statute concerns remanding a case to criminal court where the matter was held for grand jury action. The practice commentaries, as well as the title, state that this can occur after a "hearing or waiver of hearing." See, CPL §180.40 and CPL §180.40, Practice Commentaries. It is axiomatic that if the felony complaint was "disposed" upon transmission to superior court, then it could not be remanded back to criminal court. This likewise supports the Court's determination that, upon completion of the preliminary hearing, the "disposition" process starts but is not completed until the indictment is filed.

Instead of Petitioner's hyper-technical argument, the Court reasons that at the conclusion of the preliminary hearing, the process of disposing the felony complaint begins. As noted in CPL §180.70, "if there is reasonable cause to believe that the defendant committed a felony, the court must order that the defendant be held for the action of the grand jury and it must promptly transmit...the felony complaint." CPL §180.70(1). This begins the process as the case is transferred to the superior court. However, the disposition cannot be completed until the felony complaint is replaced with an indictment (or another accusatory instrument).

A review of Executive Order 202.28 shows, in clear language, what is to happen. The Order states that CPL §180.80 is modified "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." The Order does not say that the court must be satisfied that good cause has been shown why a preliminary hearing cannot be conducted. It instead specifically [*6]refers to a defendant being held on a felony complaint. That is what the People did in this matter — they provided good cause, within one hundred and forty-four hours from May 8, 2020, why the defendant should continue to be held on a felony complaint. The Executive Order subsequently refers to CPL §190.80 when it discusses the continued detention of a defendant wherein it provides a subsequent layer of protection against indefinite detention as the People must show good cause why 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.

Subsequent to oral arguments, the Petitioner submitted various cases in support of their argument. These cases, however, are not persuasive. First, the cases are not from any appellate authority. Second, the issues discussed in the cases are not related to the instant matter. Instead, when the cases mention the felony complaint's disposition it is when the statute is quoted for other reasons.

The Court further notes the Petitioner's theory regarding the felony complaint "disposition" cannot be sustained considering the Executive Order language concerning CPL §190.80. Quite simply — by the Petitioner's theory the felony complaint would be disposed upon completion of the preliminary hearing. Therefore, the Executive Order's language, that "good cause has been shown that a defendant should continue to be held on a felony complaint beyond forty-five days provided that such defendant has been provided a preliminary hearing" would be a nullity and this portion of the Order would be stricken because a defendant could not be held on a felony complaint after the preliminary hearing took place.

Pursuant to COVID-19 Pandemic Court Protocols, all five counties in New York City installed virtual capability that intersected the Courts, prosecutor's offices, the defense bar, and witnesses. This limited capability is strained by the obvious difficulties with detention facilities having insufficient video capabilities for defendants to readily speak to counsel prior to the hearings and also by limited capabilities for a defendant to participate electronically during the hearings. Coordinating witness availability with court staff availability, detention video accessibility and counsel availability/accessibility are an incredible hurdle to overcome during this pandemic.

In reviewing the Executive Orders with the relevant statutes, it is not difficult to comprehend their overarching goal of a compromise in balancing the liberty rights of those incarcerated to the duty of the government to fulfill its statutory obligations in light of the obstacles created by the pandemic. Plainly put, the compromise is the good cause extension of CPL §180.80 based on the inability to impanel a grand jury due to the pandemic but limiting that extension to 45 days unless due process in the form of a preliminary hearing is afforded.

To the extent detailed, above, it is ORDERED that petitioner's writ is denied

This constitutes the decision and order of the court.

Dated: June 8, 2020

Staten Island, New York Footnotes

Footnote 1:Timing of this Order coincided with some upstate counties re-opening or near re-opening.