People v Zuzel

[*1] People v Zuzel 2021 NY Slip Op 21154 Decided on June 4, 2021 Supreme Court, New York County Kiesel, 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 4, 2021
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

John Zuzel, Defendant.



1019/2021



For the People: Cyrus Vance, District Attorney, New York County

A.D.A. Lucy Nicholas, of counsel

For the defendant: The Legal Aid Society, New York, New York

Gurmeet Singh, Esq., of counsel
Diane Kiesel, J.

The defendant stands before the Court charged with burglary in the second degree, as defined in subdivision two of section 140.25 of the Penal Law. The defendant was arraigned on the instant indictment on June 2, 2021. Based upon the People's representation that the defendant was arrested inside an apartment, the Court set bail in the amount of $2,500 cash or credit card, $7,500 partially secured surety bond, and $5,000 insurance company bond. The Court adjourned the matter to allow defense counsel to arrange for appropriate pre-trial services for the defendant, who anticipated being able to pay bail. For the reasons that follow, the Court finds that the crime of burglary in the second degree, as charged, is not a qualifying offense, and releases the defendant subject to conditions herein enumerated.

CPL § 510.10(4)(a)

Since January 1, 2020 securing orders within New York State have been governed by a statutory scheme that differentiates between "qualifying offenses," those offenses for which a court may issue a monetary securing order, and "non-qualifying offenses," those offenses for which a court may issue only a non-monetary securing order.[FN1] Originally, the statutes designated burglary in the second degree, based upon the defendant's presence in a dwelling, a non-qualifying offense. In April 2020, however, the legislature reconsidered that decision, and since July 2, 2020, "burglary in the second degree as defined in subdivision two of section 140.25 [has [*2]been] a qualifying offense only where the defendant is charged with entering the living area of the dwelling" (CPL § 510.10[4][a] [emphasis added]).

The statute does not define "charged with entering the living area." The criminal procedure law does not contain a definition of the phrase "charged with," and none was added by the amending legislation. The Court's primary consideration must be giving effect to the legislature's intention. (McKinney's Cons Laws of NY, Book 1, Statutes § 92; Samiento v World Yacht Inc., 10 NY3d 70, 77-78 [2008]). The budget bill which established this provision, however, lacks any significant legislative history, and the floor debates in the Senate and the Assembly shed no light upon the intent of this specific provision. The Court therefore looks to the use of the phrase within our law and common experience.

The colloquial use of the phrase "charged with" seems analogous to "accused of" (Charge with | Definition of Charge with at Dictionary.com, https://www.dictionary.com/browse/charge—with [last accessed Jun. 3, 2021]; Charge with — Idioms by The Free Dictionary, https://idioms.thefreedictionary.com/charge+with [last accessed Jun. 3, 2021]). Within the legal profession, a "charge" is usually "[a] formal accusation of an offense as a preliminary step to prosecution" (Black's Law Dictionary [3rd pocket ed 1996], charge). Under the criminal procedure law, the sole method of accusing a person is an accusatory instrument (CPL § 1.20[1]), and such instruments are the only methods of "charging" them (see CPL §§ 1.20[3], [3-a], [4], [5], [6], [7], [8]). The Court therefore concludes that the term "charged with" requires a formal pleading by the People that the defendant entered the living area of a dwelling.

To hold otherwise would ignore the rules of statutory construction. Courts should construe statutes so as to give effect to every provision (McKinney's Cons Laws of NY, Book 1, Statutes § 98; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]). The Court cannot, therefore, ignore the legislature's choice to use the phrase "charged with." Reading CPL § 510.10(4)(a) "both based on its plain meaning and in context," the Court concludes "it is clear that the legislature did not pen one word anticipating that another would be 'read into' the [statute]" (Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Com., 21 NY3d 55, 62 [2013]).

Applying this standard to the instant matter, the Court finds that the crimes, as charged, are non-qualifying offenses. The felony complaint alleges merely that the defendant was observed "inside a residential dwelling." The indictment consists of a recitation of the statutory language of penal law 140.25(2), with the inclusion of an address. The bill of particulars filed and served in this matter states that it provides "a description of the offense(s) charged [and] the approximate date, time, and location of each offense," but it neither describes the offense nor provides a more specific location than a street address.[FN2] There may be many non-livable areas in [*3]a New York City dwelling—the defendant could be found wandering in the hallways, on the roof, or in the basement. Under these circumstances, the Court cannot say that the defendant is "charged with entering the living area of the dwelling."

Securing Order

Having heard both parties, and considered all the securing order criteria enumerated in CPL 510.30(1), the Court therefore finds the following conditions to be the least restrictive alternative necessary to return the defendant to Court:

The defendant is to be escorted to the Ascend Recovery Program upon release from custody;

The defendant is to enter and remain at the Ascend Recovery Program until such time as the court directs otherwise;

The defendant is to waive any confidentiality rights and consent to having the Ascend Recovery Program provide monthly updates to the Court, regarding his progress and treatment;

The Ascend Recovery Program is to contact the Court immediately in the event the defendant absconds from the program; and

The Ascend Recovery Program must facilitate virtual court appearances for the defendant as required.

For the purposes of ensuring the defendant's successful escort from custody to the Ascend Recovery Program, and upon consent of defense counsel, the Court sets monetary bail in the amount of $100 cash, $1,000 insurance company bond or partially-secured surety bond.

This constitutes the Decision and Order of the Court.

DATED: June 4, 2021

New York, New York

Diane Kiesel, Acting Supreme Court Justice Footnotes

Footnote 1:The term "non-qualifying offense" is not found in the statutes, but has arisen as a term of art to distinguish such offenses from qualifying offenses.

Footnote 2:Though not an accusatory instrument, bills of particulars contain "items of factual information which are not recited in the indictment and which pertain to the offense charged and include[e] the substance of each defendant's conduct encompassed by the charge" (CPL § 200.95[1][a]). As such, they have been traditionally used to fill factual gaps for purposes of notice (see, e.g., People v. Mackey, 49 NY2d 274 [1980]). Because this bill of particulars lacked any factual information, the Court need not reach the question of whether an allegation in a bill of particulars would satisfy CPL § 510.10(4)(a).