People ex rel. Griffin v. Brann, 400238-2020

• Decision Date: 16 December 2020
• Docket Number: 400238-2020
• Citation: 72 Misc.3d 237,147 N.Y.S.3d 313
• Parties: The PEOPLE of State of New York EX REL. Shannon GRIFFIN, Relator, on behalf of Brian Cespedes, Petitioner, v. Cynthia BRANN, Commissioner, New York City Department of Correction, Respondent.
• Court: New York Supreme Court

72 Misc.3d 237

147 N.Y.S.3d 313

The PEOPLE of State of New York EX REL. Shannon GRIFFIN, Relator, on behalf of Brian Cespedes, Petitioner, v. Cynthia BRANN, Commissioner, New York City Department of Correction, Respondent.

400238-2020

Supreme Court, Bronx County, New York.

Decided on December 16, 2020

For The People: Assistant District Attorney Cassandra Papandrew, Bronx District Attorney's Office

For Defendant: Shannon Griffin, Esq., Legal Aid Society

Ethan Greenberg, J.

Petitioner Brian Cespedes seeks habeas corpus relief. He asserts that the bail set on Indictment Numbers 1657/2018 and 478/2020 by Justice Alvin Yearwood on October 9, 2020, is excessive and violates his rights under New York's bail statute, the excessive bail clause of the Eighth Amendment to the United States Constitution, and the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. ¹

Each Indictment charges petitioner Cespedes with Criminal Possession of a Weapon in the Second Degree (a Class C Violent Felony), among other charges, for possessing a loaded firearm. Petitioner was arrested on the 2020 gun case while released on recognizance on the 2018 gun case.

Bail on the earlier 2018 gun case was reset by Justice Yearwood on October 9, 2020 at $5,000.00 cash, or $10,000.00 insurance company bail bond, or $20,000.00 ten percent partially-secured bond, or a $3,000.00 credit card payment.

Bail on the later 2020 gun case was originally set by Judge Erik Gray at petitioner's initial arraignment at $75,000.00 in cash, ten percent partially-secured bond, or insurance company bail bond; and Justice Yearwood maintained those bail conditions on October 9, 2020, as well.

For the reasons detailed below, the bail set on each case was proper, and the petition will be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

—Petitioner's Criminal History—

Petitioner Brian Cespedes is a twenty-year-old man. His criminal history record (or "rap sheet") indicates that, apart from the two instant open gun indictments, petitioner has a 2016 Juvenile Delinquent adjudication for Assault in the Second Degree with a Weapon or Dangerous Instrument ( Penal Law § 120.05[2] ) for which he received a sentence of fifteen months probation, and an Adjournment in Contemplation of Dismissal for a July 2019 misdemeanor arrest (for Inciting to Riot, and related charges).

—May 2018 Arrest—

Petitioner was arrested on May 26, 2018, and charged with Criminal Possession of a Weapon in the Second Degree. It is alleged in substance in that case that petitioner and his companions, upon seeing the police approach, discarded two loaded guns under a parked car.

Petitioner was initially released on his own recognizance on the 2018 case. In August of 2018, a Grand Jury voted Indictment Number 1657/2018 charging petitioner Cespedes with two counts of Criminal Possession of a Weapon in the Second Degree and related crimes. The 2018 case was calendared in Part 77 pending trial, and petitioner Cespedes voluntarily appeared on that case a number of times without incident until his re-arrest in August of 2020.

—August 2020 Arrest—

On August 12, 2020, petitioner Cespedes was once again arrested and charged with Criminal Possession of a Weapon in the Second Degree and related charges.

In the 2020 case the prosecution in substance alleges that petitioner Cespedes became embroiled in some kind of a dispute inside a bodega. As shown on surveillance video, petitioner was wearing a "fanny pack" while inside the bodega. The police were summoned. As the police approached, petitioner discarded the fanny pack just outside the bodega. The police recovered it almost immediately, and found a loaded gun inside.

—Bail Set at Arraignment—

Petitioner was arraigned before Judge Erik Gray later that same day (August 12, 2020). The prosecutor requested that bail be set in the amount of $150,000.00 cash, or insurance company bail bond, or ten percent partially-secured bond.

In support of that request, the prosecutor briefly described the alleged facts of the new 2020 gun case. The prosecutor further reviewed the facts in petitioner's earlier 2018 case, stating that in the 2018 case petitioner and a co-defendant were seen abandoning two loaded guns underneath a parked car as the police approached, and that DNA evidence linked petitioner and his co-defendant with those two guns. Finally, the prosecutor noted that petitioner now faced mandatory consecutive sentencing if convicted on both the old 2018 and new 2020 gun case. (TR August 12, 2020, pp. 3-4.) ²

Petitioner's counsel asked that petitioner Cespedes be released on his own recognizance again, as he had been released previously on his original 2018 case. She noted that (despite three prior arrests) petitioner had no criminal convictions and no bench warrants on his record. Counsel also noted that petitioner was enrolled in a general equivalency degree program, worked (part-time) in a supermarket, and lived with his mother. Finally, petitioner's counsel stated that petitioner appeared to be eligible for Youthful Offender treatment on his earlier 2018 gun case. ( Id. , pp. 4-5.)

Judge Gray then made a specific inquiry about petitioner's financial ability to post bail, and counsel responded that because petitioner's financial resources were "thin," he and his family did not have the ability to post bail of much more than $1000.00. ( Id. , p. 6.)

Judge Gray then stated:

After oral argument and due deliberation, the Court has determined that the defendant stands charged with a qualifying offense under CPL [§] 510.10(4). The Court has made an individualized determination pursuant to CPL [§] 510.10(1) that defendant poses a risk of flight to avoid prosecution. Pursuant to [CPL §] 510.30(1), the Court has carefully considered the available information regarding defendant that is relevant to his return to court, including his activities and history and the pending charges. Therefore, pursuant to CPL [§] 510.10(1), the Court finds that the least restrictive condition that will reasonably assure defendant's return to court is bail in the following amounts. $75,000 cash, over $75,000 insurance company bail bond, over $75,000 partially-secured surety bond at ten percent.

(TR August 12, 2020, pp. 6-7.)

—Both Cases Sent to Justice Yearwood—

On August 17, 2020, the Grand Jury voted Indictment Number 478/2020, which charges petitioner with Criminal Possession of Weapon in the Second Degree and related crimes.

On September 24, 2020, the 2018 gun case was heard by Justice Yearwood. Justice Yearwood temporarily remanded petitioner on the 2018 case pending an October 9, 2020, appearance before Justice Yearwood in Part T18, so that petitioner would receive jail time credit on the 2018 case in the interim. It was agreed that petitioner would be remanded without prejudice, and that on October 9, 2020, Justice Yearwood would hear a global bail application for both cases. (TR September 24, 2020, pp. 23-4.)

On September 25, 2020, petitioner was arraigned on the new 2020 indictment and entered a plea of not guilty. The new gun case was then adjourned to October 9, 2020, before Justice Yearwood in Part T18 in order to join the old gun case, and for the global bail application mentioned above.

II. THE OCTOBER 9, 2020, BAIL PROCEEDING

On October 9, 2020, petitioner's two cases all (along with the case of his co-defendant on his older 2018 gun Indictment) were called before Justice Yearwood in Part T18. The appearance began with a lengthy discussion of prior motion practice in the case. That discussion appears to have centered upon an application to compel petitioner to provide a DNA sample. (TR October 9, 2020, pp. 1-11.) ³

Justice Yearwood noted that he had previously remanded petitioner pending a bail application to be conducted that day, and asked whether the parties were presently ready to proceed with that bail application. ( Id. , p. 12).

Petitioner's counsel stated that she was ready; but she also argued that (pursuant to CPL§ 530.60 [a][2] ) an evidentiary hearing was necessary before the court could set monetary bail on petitioner's 2018 gun case. ⁴ The newly assigned prosecutor also indicated that she was ready. ( Id. , p. 13).

The prosecutor then argued that, because petitioner had been rearrested for his new 2020 gun case, monetary bail should now be set on his older 2018 gun case in the amount of $75,000.00 cash, or $225,000.00 insurance company bail bond, or $225,000.00 ten percent partially-secured bond. She pointed out that petitioner now faced a new class C violent felony charge, that petitioner might not be granted Youthful Offender status on his older 2018 case, and that petitioner could now face mandatory consecutive prison time on his two gun cases. ( Id. )

Petitioner's counsel then (somewhat confusingly) asserted in quick succession that bail should remain the same on both cases, or definitely not be increased, or definitely be decreased. ( Id. )

Petitioner's counsel subsequently clarified petitioner's position, asking that petitioner again be released on recognizance on his 2018 case, and that the court reduce bail to $35,000.00 on the newer 2020 case. ( Id. , pp. 15, 18).

Petitioner's counsel first addressed petitioner's community ties and financial resources. She pointed out that petitioner's mother — who was present in court that day with her tax returns — worked at a local supermarket, where she earned an annual salary of just under $50,000.00. Counsel added that petitioner's mother was a single mother who supported five children and paid monthly rent of $1,120.00. Petitioner himself, counsel stated, was unemployed and now (obviously) incarcerated as well. ( Id. , pp 14-15.)

Petitioner's counsel then discussed what she saw as weaknesses in the prosecution's evidence in the 2018 case. In that regard, counsel stated that four people were originally arrested in the 2018 gun case; and...