People ex rel. Desgranges v. Anderson, 90

Decision Date31 January 2018
Docket Number2018,90
Parties The PEOPLE of the State of New York EX REL. Philip DESGRANGES, Esq. ON BEHALF OF Christopher KUNKELI, Petitioner, v. Adrian Butch ANDERSON, Dutchess County Sheriff, Respondent.
CourtNew York Supreme Court

New York Civil Liberties Union Foundation, New York City (Philip Desgranges of counsel), for petitioner.

William V. Grady, District Attorney, Poughkeepsie, for respondent.

Maria G. Rosa, J.

This matter was commenced in the Appellate Division Second Department as an Article 70 petition for a writ of habeas corpus and an action for a declaratory judgment. Petitioner claimed he was being unlawfully held as a result of bail, or excessive bail, having been set by Town Judge Paul Sullivan upon petitioner's arraignment on a charge of petit larceny. The Appellate Division referred the matter to this court fixing an appearance date of January 19, 2018. On January 19, 2018 the undersigned heard oral argument from both sides. Respondent submitted answering papers. Petitioner requested and was given one week to reply.

It is undisputed that on October 11, 2017, the petitioner was represented at his arraignment by an attorney from the Public Defender's Office of Dutchess County and that he did not subsequently challenge the bail either by objecting to it at the arraignment, or by a subsequent proceeding before the Town Judge or before a County Court Judge. However, exhaustion of remedies is not a condition to the right to bring a petition for habeas corpus, (CPLR Article 70), nor for a declaratory judgment. Further, on the record presented Mr. Kunkeli did not waive his constitutional rights to due process and equal protection. Brady v. the United States , 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

On January 19, 2018 counsel for both sides advised that the petitioner had been released that morning as a result of a plea bargain. The respondent claims that this matter is therefore moot. The petitioner contends that there are constitutional claims regarding the setting of bail in this case and in many other cases affecting members of the public under the due process and equal protection clause of the Fourteenth Amendment to the United States Constitution which warrant this court's determination in the form of a declaratory judgment. Petitioner relies on a Court of Appeals case, People ex rel. McManus v. Horn , 18 N.Y.3d 660, 944 N.Y.S.2d 448, 967 N.E.2d 671 (2012). In McManus , the accused argued that his pretrial incarceration was unlawful because the judge ordered cash-only bail. While the habeas corpus proceeding was pending, Mr. McManus pled guilty. The Court of Appeals found and applied an exception to mootness since "the propriety of cash-only bail is an important issue that is likely to recur and which typically will evade our review." Id. at 664, 944 N.Y.S.2d 448, 967 N.E.2d 671. The court considered the matter as an action for declaratory judgment in that case, and this court finds it appropriate to do so here. See also Hearst Corp. v. Clyne , 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980) where the Court of Appeals outlined a three prong test for recognition of an exception to mootness when (1) the case raises a substantial or novel issue, (2) that has a "likelihood of repetition, either between the parties or among other members of the public", (3) and yet, because of the fleeting nature of the dispute, the issue will typically evade judicial review. Id. at 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876.

Across our State, between sixty percent on average, and in New York City as much as seventy five percent, of inmates in jails have not been convicted of a crime but are awaiting arraignment or trial. (criminaljustice.ny.gov/crimnet/ojsa/jail_pop_y.pdf) "In my experience in the Dutchess County Public Defender's Office, judges in Dutchess County normally set bail in a defendant's case without inquiring into whether the defendant has the ability to pay the bail amount." (Dutchess County Public Defender Thomas Angell, affirmation of January 25, 2018.) "In my experience as the conflict defender in Dutchess County, I have rarely, if ever, heard a judge in Dutchess County inquire whether a defendant has the ability to pay the bail. Typically, judges presiding in the Justice (Town and Village) Courts of Dutchess County set the bail amount requested by the District Attorney's Office without regard to the defendant's ability to pay that bail amount ... bail often results in a pre-trial incarceration of indigent defendants solely because they are without financial resources to afford bail." (Michael Cohn, Esq., Ulster County Public Defender's Office, affirmation of January 24, 2018).

The petitioner asks this court to mandate that judges setting bail consider a defendant's ability to pay. The respondent claims through its representation by the District Attorney's Office that the petitioner's constitutional challenges and requested relief are more properly directed at the legislature. The respondent points out that there is no statutory requirement that ability to pay be considered by a judge setting bail, although it is a consideration that may be made.

While it is clear that the legislature must act, it is undisputed that the earliest such action could occur would be 2019. In the interim, thousands of individuals will be in a similar situation as the petitioner was at his arraignment. It is clear to this court that a lack of consideration of a defendant's ability to pay the bail being set at an arraignment is a violation of the equal protection and due process clause of the Fourteenth Amendment and of the New York State Constitution. Clearly, $5000.00 bail to someone earning $10,000.00 per year, like the petitioner, without significant assets, is much more of an impediment to freedom than $5000.00 bail would be to a defendant earning substantially more and/or with significant assets. Setting that sum as to both such individuals would not be equal treatment. Yet, the Fourteenth Amendment and the New York State Constitution both require that individuals under such circumstances be treated equally. "No person shall be denied the equal protection of the laws ... because of race, color, creed or religion ...". ( New York State...

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3 cases
  • People v. Fields
    • United States
    • New York County Court
    • March 15, 2018
    ...impression considering the breadth of a recent ruling in the Dutchess County Supreme Court in People ex rel. Desgranges v. Anderson, 2018 N.Y. Slip Op. 28036, 59 Misc.3d 238, 72 N.Y.S.3d 328 (Sup. Ct., Dutchess County 2018). In People ex. rel. Desgranges , the defendant, who was incarcerate......
  • People v. Schiff
    • United States
    • New York County Court
    • February 26, 2018
    ...government objective in appropriate circumstances. See, The People of the State of New York ex rel. Philip Desgranges, Esq. v. Adrian Butch Anderson, Dutchess County Sheriff , 59 Misc.3d 238, 72 N.Y.S.3d 328, 2018 WL 846505 (Sup. Ct.) . As stated in Herzog v. U.S. , 75 S.Ct. 349, 351 , 99 L......
  • People v. John Doe
    • United States
    • New York Supreme Court
    • March 26, 2018
    ...unconstitutional to set cash bail that a defendant is not able to post (see 73 N.Y.S.3d 874 Matter of People ex rel Kunkeli v. Anderson , 59 Misc.3d 238, 72 N.Y.S.3d 328, 2018 WL 846505 (Sup. Ct., Dutchess County, January 31, 2018), Rosa, J., index No. 90/2018 ). Nevertheless, this Court mu......

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