People ex rel. Devore v. Warden of New York City Prison

• Decision Date: 01 November 1963
• Citation: 244 N.Y.S.2d 505,40 Misc.2d 943
• Parties: The PEOPLE of the State of New York ex rel. Donald DEVORE, Plaintiff, v. The WARDEN OF the NEW YORK CITY PRISON, Defendant.
• Court: New York Supreme Court

Page 505

244 N.Y.S.2d 505

40 Misc.2d 943

The PEOPLE of the State of New York ex rel. Donald DEVORE, Plaintiff, v. The WARDEN OF the NEW YORK CITY PRISON, Defendant.

Supreme Court, Special Term, New York County, Part II.

Nov. 1, 1963.

Sohn & Gross, New York City, for plaintiff; Leslie L. Sohn, New York City, of counsel.

Frank S. Hogan, Dist. Atty., New York County, for defendant; John S. Chatfield, Asst. Dist. Atty., of counsel.

EMILIO NUNEZ, Justice.

It appears from the relator's brief that he was detained in City Prison from September 7, 1963 until October 3, 1963 upon a commitment entered in the Criminal Court of the City of New York based upon an affidavit made by two police officers purporting to comply with the provisions of section 55 of the New York City Criminal Court Act. On five separate appearances for hearing, the Criminal Court denied bail. He contends that he comes within the purview of section, 552, subd. 3(b) of the Code of Criminal Procedure and urges that the act of the Legislature in removing from the Magistrate his traditional power to set bail for an appearance before him is a denial of due process of law within the provisions of Article I, section 6 of the New York State Constitution and the Fourteenth Amendment of the Federal Constitution. It appears further that on arraignment bail was not fixed since relator is charged with a felony and is a convicted felon. However, on October 6, 1963, on his application at Part 30 of the Supreme Court bail was fixed at $5,000.

Absolute right to bail in felony cases is non-existent in this State and in such cases whether bail will be fixed and in what amount is for the State to decide (United States ex rel. Hyde v. McMann, 2 Cir., 263 F.2d 940, cert. den. 360 U.S. 937, 79 S.Ct. 1462, 3 L.Ed.2d 1549). Since an absolute right to bail in this instance does not exist, denial of bail is not a violation of a constitutional right. Nor is the Criminal Court required to advise the defendant of any existing right to bail. The narrow question presented is whether the power to exercise discretion in holding a defendant to bail in a particular case is wrongfully taken from the Criminal Court of the City of New York. The power of exercise of discretion has not been removed, nor the benefit of its existence denied to the defendant. Rather, the power has been vouchsafed to justices of the Supreme Court. Ignorance in the premises is unavailing and whatever may be said concerning that is for the Legislature and for the executive upon enactment of any legislation in that area. Since bail in this instance is not constitutionally guaranteed and it is available to the relator in the exercise of a power of discretion upon application in the proper forum, the relator is not in the position to require that he be arraigned before a court having such power. Relator urges that he may not be refused relief merely because he has not the right to petition for the relief and he urges further that he does not complain that his application for bail was denied, but that an application for bail was not presented to a court of competent jurisdiction. The purport of these contentions is not made manifest. The fact is that relator has already petitioned in the proper forum for an order fixing bail.

The powers of the Criminal Court otherwise are not affected or diminished by the fact that...