People ex rel. Rodriguez v. Schiraldi

• Decision Date: 05 October 2021
• Docket Number: Indictment 1424-2021
• Citation: 2021 NY Slip Op 32976 (U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARIA C. RODRIGUEZ, ESQ., on behalf of LENUR MUSTAFAEV, Petitioner, v. VINCENT SCHIRALDI, Commissioner, New York City Department of Corrections, Defendant. SCID No. 30115-2021
• Court: New York Supreme Court

2021 NY Slip Op 32976(U)

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARIA C. RODRIGUEZ, ESQ., on behalf of LENUR MUSTAFAEV, Petitioner, v. VINCENT SCHIRALDI, Commissioner, New York City Department of Corrections, Defendant.

SCID No. 30115-2021

Indictment No. 1424-2021

Supreme Court, New York County

October 5, 2021

Unpublished Opinion

DECISION AND ORDER

Miriam R. Best, Acting Supreme Court Justice.

Petitioner Mustafaev, who is charged in New York County Indictment Number 1424-2021 with a single count of Grand Larceny in the Fourth Degree (PL § 155.30[5]), is currently detained on Rikers Island, where he being held on bail set in the amount of $2, 500 cash, $7, 500 insurance company bond or $7, 500 partially secured surety bond with 10% down. He claims that his detention on this bail violates his rights to due process and equal protection under the New York State and federal Constitutions. The People oppose. This court heard a virtual oral argument on September 24, 2021 and both sides have made supplementary submissions. For the reasons that follow, the writ is denied and the petition is dismissed.

Background

On June 23, 2021, petitioner was arraigned in Criminal Court on a felony complaint alleging that he snatched the wallet of a man who was at the Metrocard machine in the Brooklyn Bridge subway station in Manhattan. The People served notices and requested bail in the amount of $5, 000 cash, $15, 000 insurance company bond or $15, 000 partially secured surety bond (Pet Exh A p 3).

Although Grand Larceny in the Fourth Degree is ordinarily not a bail-eligible offense, it may be if the defendant qualifies for sentencing after conviction as a persistent felony offender (PL § 70.10; CPL §§510.10 [3] [4(s)]). The People argued that

Defendant is bail eligible under CPL 510.10, Subsection 4 Subsection S, as he is adiscreationary [sic] persistent felony offender. The Defendant has six felonies for Attempted Robbery in the Third Degree, five misdemeanors and one cycle of failures to appear. His most recent conviction was from March 5, 2021. The case[ ] was reduced from Robbery in the Third Degree to Petit Larceny, and he was sentenced to six months jail.

(Pet Exh A p 3). The People also described the strength of their case:

The Defendant approached a stranger in the subway and snatched his wallet as the victim was trying to buy a Metrocard. This incident is captured on video... and the Defendant is arrested only one day later wearing the same shorts as he was wearing during the commission of the crime.

(Id.) The People argued that the bail they were requesting was the least restrictive means to ensure petitioner's return to court (id.).

Defense counsel (who is relator here) requested supervised release. She stated that "[a]ny amount of bail in this case would substantially financially show a hardship to" petitioner (id. p 4). CJA scored him "a 21 out of 25 meaning 78 percent of people out of hundred do come back and ROR is recommended" (id.). He had not had a warrant in five years and had no open matters '"at this moment" (id.).^[1] Counsel told the court that petitioner had "turned himself in to the police," was supposed to go to a construction job the next day, had been in New York "for over 20 years" and had "a stable home" and "three contacts that make it very evident that he has roots in New York" (id. pp 4-5).

After hearing these arguments, the court held that, having considered CPL § 510.10(4)(s) and petitioner's criminal history, the least restrictive means of ensuring his return to court was bail in the amount of $2, 500 cash, $7, 500 partially secured surety bond or $7, 500 insurance company bond (id. p 5). This is half the amount the People had requested. Petitioner was thereafter indicted on a single count of Grand Larceny in the Fourth Degree.

On July 22, 2021 petitioner was arraigned on the indictment before the Honorable Diane Kiesel. The People recommended a sentence of one and one-half to three years in prison on a plea to the indictment (Pet Exh B p 3). When the court asked how he was in jail on a grand larceny charge, counsel, who had represented petitioner in Criminal Court, stated, "I believe the prosecutor used the discretionary persistent statute to set bail," and the prosecutor stated, "The fact [is] he is a discretionary persistent felony offender" (id. p 4). Counsel then asked to make a bail application and the court asked to be given the case file. Counsel repeated the arguments she had made below, adding that petitioner "cannot afford the set $2, 500." She stated that his construction job would be held open for him "but only if he can get out soon in order to continue working" and now stated that she had "over four contacts" for him (id. p 7). Counsel also repeated that petitioner "turned himself in on this matter" (id. p 8). She again asked for supervised release or "if not, ... a reduction of his bail so that his family can try to gather money to pay for it" (id.).

The People responded first that

[d]efense counsel's contention that he turned himself in in this matter is not accurate. There was an i-card, and that is how the Defendant was apprehended, arrest - stopped and arrested in this case.

(Id.) The People then advised the court that petitioner's criminal record included six felonies, five for attempted third-degree robberies and one for third-degree burglary, five misdemeanors and one cycle of failure to appear. Moreover, his most recent case was from March 5, 2021, when he was sentenced to six months following his plea to Petit Larceny, which had been reduced from Robbery in the Third Degree (id. pp 8-9). The People concluded,

Given his criminal record, his warrant history, the conduct here, which is captured on surveillance video, he is stealing a stranger's wallet in the Brooklyn Bridge subway station, the People believe bail is the least restrictive means to insure (sic) his return to court, and are requesting that the bail be the same as it is now.. ..

(Id. p 9.)

The court then made the following ruling:

All right. Looking at the factors under the current bail statute, the Defendant's character and history, the evidence in the case, and looking at his financial abilities, he's said to have some means of employment, and this bail is about as low [as] bail could possibly be to hold your client, $750 will get your client out, partially secured at 10 percent. Your bail application is denied.

(Id.)^[2]

The Parties' Contentions

In the verified petition and during oral arguments, counsel repeated the arguments she made to the bail-setting courts, urging this court to release petitioner on supervised release or under electronic monitoring (VP ¶¶ 26-28; ¶ 5-6, 7, 16, 22, 24). She also argued for the first time that neither petitioner nor any of his family and friends individually or collectively could post the $750 needed for the partially secured surety bond (¶ 21).

As for constitutional arguments, petitioner argues first that "bail deprives him of his constitutional rights to due process and equal protection" (VP ¶ 20) because "[s]etting bail in any amount is excessive ... given that [he] is indigent and cannot afford legal services let alone paying for his release while his case is pending" (id. ¶ 25). He then argues that the bail-setting courts abused their discretion "by setting bail... knowing he could not afford it" (id. ¶ 30; see also ¶ 4). Petitioner claims that his "criminal record was the sole reason provided on the record [by Justice Kiesel] to keep [him] in custody awaiting his day in court" (id. ¶ 31) and that the court "failed to consider whether or not [he] and his family would be able to post the thousands of dollars set for his release" (id. ¶ 33). Petitioner concludes that, "[s]eeing as there was [sic] other options for release conditions, both judges in this matter abused their discretion in not considering them" (id. ¶ 34).

Petitioner next argues that the bail-setting courts should not have considered the fact that, if convicted, he could be sentenced as a discretionary persistent felony offender, because "PL § 70.10 is rarely invoked to sentence[ ] defendants to lifetime imprisonment." Indeed, "[b]etween 2019 and 2014 [sic] only thirteen [defendants represented by New York County Defender Services] were actually given life sentences all mandatory not discretionary" (id. ¶ 37). Therefore, because few defendants are ever sentenced as discretionary persistent felony offenders, they "are not a flight risk from prosecution because more often than not, defendants are not being punished by life imprisonment" (id.; see also ¶ 8). Because the prosecution "is not intending on using [his] discretionary persistent status to sentence him ... it should also not be considered in determining release conditions" (id. ¶ 38).

Finally, petitioner argues that bail should not have been set because of the "humanitarian crisis on Rikers Island" (id. ¶ 40). He claims that "[s]ending [him] to Rikers Island amid this ongoing crisis is nothing short of a death sentence" (id. ¶ 46), is "irresponsible and careless" (id. ¶ 49), 'irresponsible and inhumane" (id. ¶ 58), "a death sentence," "imprudent" and "unjust" (id. ¶ 59; see also ¶ 9-16), ^[3]

The People oppose the writ. They argue that the narrow issue on this habeas petition is not to make a de novo determination of bail but to determine whether, in light of the records that were made before them, the bail-setting courts abused their discretion in setting the bail "without reason, or for reasons insufficient in law" (Peo's Aff and Mem p 4; ¶ I6).^[4] The bail-setting courts properly considered the factors set out in CPL § 510.30(1)(a -F) aNd set reasonable bail (Peo's Aff and Mem pp 4-7; ¶ 17-19). The bail-setting court...