People ex rel. Kuby v. Merritt

• Decision Date: 21 June 2012
• Citation: 96 A.D.3d 607,947 N.Y.S.2d 454,2012 N.Y. Slip Op. 05071
• Parties: The PEOPLE of the State of New York, ex rel. Ronald L. KUBY, on behalf of Gigi JORDAN, Petitioner–Appellant, v. Darlene MERRITT, etc., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 607

947 N.Y.S.2d 454

2012 N.Y. Slip Op. 05071

The PEOPLE of the State of New York, ex rel. Ronald L. KUBY, on behalf of Gigi JORDAN, Petitioner–Appellant,

v.Darlene MERRITT, etc., Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 21, 2012.

Ronald L. Kuby, New York (Alan M. Dershowitz, of the bar of the State of Massachusetts, admitted pro hac vice, of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Aaron Ginandes of counsel), for respondent.

TOM, J.P., ANDRIAS, DeGRASSE, RICHTER, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Larry Stephen, J.), entered September 21, 2011, denying the writ of habeas corpus and dismissing the petition, unanimously affirmed, without costs.

In February 2010, petitioner, Gigi Jordan, was charged with second-degree murder stemming from allegations that she intentionally caused the death of her eight-year-old autistic son by giving him an overdose of prescription medication. Petitioner also ingested a number of pills and left a suicide note stating that her son's death was the only way to protect him from his allegedly abusive father and that she did not wish to live without him.

Following arraignment, petitioner asked the court to set bail in the amount of $5 million, with a specific condition that she be released to a psychiatric facility. Supreme Court (Daniel FitzGerald J.) denied the request and remanded petitioner with the understanding that the application could be renewed before the assigned judge. On renewal, petitioner offered to post a $5 million bond fully secured by her New York City properties, and to freeze her assets, allegedly totaling approximately $40 million, by placing them in an escrow account to be managed by two named attorneys. She also proposed that her release be conditioned on a security package providing that she would be confined to her Manhattan brownstone and monitored round the clock by on-premises armed security guards and an electronic G.P.S. system, at her own expense, and on her continued psychiatric treatment.

By order dated April 23, 2010, Supreme Court (Charles Solomon, J.), considering the factors enumerated in CPL 510.30(2)(a), denied the application. Petitioner, by new counsel, moved for reconsideration of bail “under the same conditions and restrictions that apply to Dominique Strauss–Kahn.” By order dated August 11, 2010, Justice Solomon denied the application. After hearing argument, Justice Stephen denied the writ of habeas corpus and dismissed the petition on the ground that it “[could] not say based on the seriousness of this case and all of the other factors laid out at these bail hearings that [Justice Solomon] did abuse his discretion.” ¹

“The action of the bail-fixing court is nonappealable, but may be reviewed in a habeas corpus proceeding if it appears that the constitutional or statutory standards inhibiting excessive bail or the arbitrary refusal of bail are violated” ( People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 231–233, 422 N.Y.S.2d 55, 397 N.E.2d 745 [1979] [internal quotation marks omitted] ). It is not the function of the habeas court to “examine the bail question afresh or to make a de novo determination of bail” ( id. [internal quotation marks omitted] ). The scope of inquiry is whether or not the bail court abused its discretion by denying bail without reason or for reasons insufficient in law ( id.;People ex rel. Hunt v. Warden of Rikers Is. Correctional Facility, 161 A.D.2d 475 [1990],lv. denied76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676 [1990] ). Where the record shows that the bail court considered the factors enumerated in CPL 510.30(2)(a), and the “denial is supported by the record, it is an exercise of discretion resting on a rational basis and thus beyond correction in habeas corpus” ( People ex rel. Parker v. Hasenauer, 62 N.Y.2d 777, 778–779, 477 N.Y.S.2d 320, 465 N.E.2d 1256 [1984];see also People ex rel. Lazer v. Warden, N.Y. County Men's House of Detention, 79 N.Y.2d 839, 580 N.Y.S.2d 183, 588 N.E.2d 81 [1992] ).

Applying these principles, Justice Stephen properly found that Justice Solomon's determination denying the bail application was “an exercise of discretion resting on a rational basis” ( People ex rel. Parone v. Phimister, 29 N.Y.2d 580, 581, 324 N.Y.S.2d 311, 272 N.E.2d 894 [1971] ). “The record supports the bail court's determination, based upon the factors enumerated in CPL 510.30(2)(a), that petitioner is a flight risk, given the severity of the crime charged, ... the likelihood of a conviction and lengthy sentence, [the lack of strong ties to this community] and the financial resources petitioner could use to facilitate flight, including [the possibility of] property outside the jurisdiction” ( People ex rel. Litman v. Warden of Manhattan House of Detention, 23 A.D.3d 258, 804 N.Y.S.2d 78 [2005],lv. denied6 N.Y.3d 708, 812 N.Y.S.2d 443, 845 N.E.2d 1274 [2006];People ex rel. Schreiber v. Warden of Queens House of Detention for Men, 282 A.D.2d 555, 723 N.Y.S.2d 96 [2001] ). This is not an appropriate case for granting bail under special conditions, particularly in light of petitioner's mental instability ( see People ex rel. Hunt, 161 A.D.2d at 475, 555 N.Y.S.2d 742). There is a sufficient basis in the record for concern that petitioner may not be capable of consistently controlling her fears and impulses, which in the past have led to flight.

Nor are we persuaded by petitioner's argument that the bail court's determination was arbitrary because the court failed to expressly rule on the adequacy of her security package. In its April 23, 2010 decision, the bail court discussed the security package in detail, but nonetheless concluded that “no amount of bail, even when coupled with the very stringent conditions proposed by the defense, can...