People ex rel. Hamilton v. Brann

• Decision Date: 02 April 2020
• Docket Number: Index No. 260188/2020
• Citation: 67 Misc.3d 1205 (A),126 N.Y.S.3d 313 (Table)
• Parties: The PEOPLE of the State of New York EX REL. Ruth HAMILTON, Esq., on behalf of Rafael Martinez, v. Cynthia BRANN, Commissioner of Corrections for the City of New York, and anyone having custody of Rafael Martinez, Respondents.
• Court: New York Supreme Court

67 Misc.3d 1205 (A)

126 N.Y.S.3d 313 (Table)

The PEOPLE of the State of New York EX REL. Ruth HAMILTON, Esq., on behalf of Rafael Martinez,

v.Cynthia BRANN, Commissioner of Corrections for the City of New York, and anyone having custody of Rafael Martinez, Respondents.

Index No. 260188/2020

Supreme Court, Bronx County, New York.

Decided April 2, 2020

Ralph Fabrizio, J.

I, Andrew Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution of the Laws of the State of New York, hereby find ... that a disaster is impending in New York State ... and I do hereby declare a State disaster emergency for the entire state of New York ... until September 7, 2020.

Executive Order, No. 202, March 7, 2020.

We have therefore made the assessment that COVID-19 can be classified as a pandemic.

Statement of Director-Counsel of the World Health Organization, March 11, 2020.

In accordance with the Directive of the Chief Judge of the State of New York to limit court operation to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as provided for by the procedural laws of the state, including, but not limited to, the criminal procedure law ... is hereby tolled ... until April 19, 2020.

Executive Order 202.8, March 20, 2020.

Pursuant to authority vested in me, in light of the emergency circumstances caused by the continuing COVID-19 outbreak in New York State and the nation ... I direct that, effective immediately and until further notice, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters annexed as Ex. A. Chief Judge Janet DiFiore, Administrative Order, AO/78/20 dated March 22, 2020.

Exhibit A ... Essential Proceedings ... (A) Criminal matters: (1) arraignments, (2), bail applications, reviews and writs, (3) temporary orders of protection, (4) resentencing of retained and incarcerated defendants, (5) essential sex offender registration act (SORA) matters.

Chief Judge Janet DiFiore, Administrative Order, AO/78/20 dated March 22, 2020.

On March 25, 2020, petitioner was arraigned before a local criminal court judge on a felony complaint charging him, inter alia , with Assault in the Second Degree. Penal Law § 120.05. This is a violent felony and a qualifying offense, CPL 510.10(4), and bail was set by the arraignment judge. Petitioner has not posted that bail. He has moved via writ filed on March 31, 2020, for his immediate release from custody. The People filed a written response, and the City, via the Law Department, submitted initial documents. Petitioner's attorney, a Bronx County Assistant District Attorney, and an attorney for the City, all appeared before me in open court, via video on April 1, 2020. This Court held the final decision on the application in abeyance pending the receipt of medical records relating to the petitioner's care while he has been held in jail. However, the writ raised significant non-medically related due process arguments that, if this Court were to find them valid, would entitle petitioner to immediate release. This Court has considered those non-medical arguments and issues this interim decision relating to those grounds only. It denies the application for release on those grounds, as explained below, but continues to hold the final decision in abeyance pending further submissions involving petitioner's medical condition and treatment.

Petitioner initially raises legal and constitutional challenges to his continued confinement that have nothing to do with his health but have everything to do with the monumental COVID-19 health crisis. He does not argue that his bail is excessive, or that the arraignment judge abused her discretion in setting it. He does not seek review of the bail itself. His challenge via this writ is that he is entitled to immediate release on several grounds. First, he argues that because the CPL 180.80 time has passed, and he is not indicted, he is entitled to release by operation of law because he claims Executive Order 202.8 does not apply to 180.80 release deadlines. Second, he argues that a judge of the criminal court denied his access to court when he requested that the case be calendared so he could make his 180.80 release application before a judge of that court, and also to demand a preliminary hearing under CPL 180.10. In a related argument, he claims that, even if Executive Order 202.8 does suspend statutory 180.80 deadlines, his continued confinement violates due process because there has been no judicial finding via the preliminary hearing route of holding him for grand jury action. Fourth, he argues that he is entitled to immediate release due to personal health concerns and the prevalence of COVID-19 in his jail facility. It is a decision on this fourth ground that is held in abeyance.

Petitioner does not argue that the governor lacked any authority under Executive Law §§ 29-a and 29-b to suspend CPL 180.80 or other procedural deadlines in the Criminal Procedure Law. Simply put, he does. See People v. Bey , 44 AD3d 1065, 1066 (2nd Dept. 2017) ; People v. Fuller, 8 AD3d 204, 205 (1st Dept. 2004) ; People v. Haneiph , 191 Misc. 3d 738, 742-43 (Crim. Court Kings County 2002). While counsel is correct that Executive Order 202.8 does not mention CPL 180.80 in its text, it also does not mention CPL 30.10 (statute of limitations), or CPL 30.30 (speedy trial), or CPL 255.20 (filing of pre-trial motions), or CPL 460.10 (time to take an appeal), or any other specific statute from the myriad of statutes that have time and action limitations imposed under the Criminal Procedure Law, whose time limits are also suspended. This Court does not find that the Governor needed to be so specific. The language of this order sweeps up every procedural time limit imposed in the Criminal Procedure Law and packages them in a broad order that is easy for a court to interpret. The words chosen and the time limits suspended are implicated in each and every one of the statutes at issue in this writ. For example, even if grand juries were being empaneled, and the People could meet the deadline imposed to vote an indictment, the People still have to "file with the court a written certification that an indictment has been voted." CPL 180.80 (2)(a). The filing of such a document divests the lower courts of jurisdiction to provide over the matter and essentially "commences" the prosecution in the Supreme Court. In terms of a preliminary hearing, a judge must file an order that results in holding a defendant in custody for grand jury action and ...