People v. Brann

• Decision Date: 13 April 2020
• Docket Number: SP No.: 035/2020
• Citation: 67 Misc.3d 638,122 N.Y.S.3d 874
• Parties: The PEOPLE of the State of New York, EX REL. Diana NEVINS, Esq. On Behalf of William Badillo v. Cynthia BRANN, Commissioner, Department of Correction, Respondent.
• Court: New York Supreme Court

67 Misc.3d 638

122 N.Y.S.3d 874

The PEOPLE of the State of New York, EX REL. Diana NEVINS, Esq. On Behalf of William Badillo

v.Cynthia BRANN, Commissioner, Department of Correction, Respondent.

SP No.: 035/2020

Supreme Court, Queens County, New York.

Decided April 13, 2020

For the Defendant: Janet Sabel, The Legal Aid Society, Queens, New York (Diana Nevins, Esq., of counsel)

For the People: Melinda Katz, District Attorney of Queens County (William Brannigan, Esq., of counsel)

Joseph A. Zayas, J.

On March 20, 2020, as the immense magnitude of the COVID-19 public health crisis in New York State became increasingly clear, Governor Cuomo issued Executive Order 202.8. For the general public, the most notable aspect of the order was probably that 100 percent of workers employed by nonessential businesses were directed to begin working from home. But for lawyers, litigants, judges, and court personnel — many of whom had reason to be waiting for the Governor to issue such an order — there was another component of the Governor's Executive Order that was particularly consequential: its tolling of all manner of litigation deadlines and time limitations.

As it turns out, on the same day that Governor Cuomo issued Executive Order 202.8, defendant William Badillo was charged, in a felony complaint, with first- and third-degree robbery. He is currently detained at the Vernon C. Bain Center in the Bronx. He contends, in this petition for a writ of habeas corpus, that he is being unlawfully detained, in violation of his rights under section 180.80 of the Criminal Procedure Law. That statute, in simple terms, requires the release of an incarcerated defendant charged by a felony complaint after five or six days, if the prosecution has not, among other things, obtained a Grand Jury indictment or commenced a preliminary felony hearing. Defendant argues that Executive Order 202.8 did not suspend CPL 180.80, and therefore he must be released. If he is correct, all defendants detained on unindicted felony charges — no matter how serious — would be presumptively entitled to release within days of their arrest during this global pandemic.

The Court rejects defendant's interpretation of Executive Order 202.8 and thus declines to order his release from custody. Nevertheless, the Court modifies defendant's securing order as previously indicated in a short-form order.

Background and Chronology

On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202. The order, issued in response to the rapidly escalating COVID-19 public health emergency, stated that "a disaster [was] impending in New York State, for which the affected local governments [would be] unable to respond adequately" and therefore the declaration of "a State disaster emergency for the entire State of New York" was necessary (Executive Order [A. Cuomo] No. 202 ).¹ At the time, the number of confirmed COVID-19 cases in the State was less than 100 (Jesse McKinley and Edgar Sandoval, Coronavirus in NY: Cuomo Declares State of Emergency , NY Times, Mar. 7, 2020, https://nyti.ms/2XkHaZW); a month later, that number would exceed 138,000 (NY Virus Deaths Hit New High, but Hospitalizations Slow , NY Times, Apr. 7, 2020, https://nyti.ms/3aOzvXz).

Having declared a State disaster emergency, the Governor began, in Executive Order 202, to invoke his authority under section 29 of Article 2-B of the Executive Law, to "temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency ..., if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster" ( Exec Law § 29-a [1] ). For example, he suspended certain provisions of the Vehicle and Traffic Law in order to allow vehicles that were properly registered in other jurisdictions "to assist in preparedness and response to the COVID-19 outbreak" (Executive Order No. 202).

In the days and weeks that followed, the Governor, in a series of executive orders, continued to suspend other laws and regulations that were viewed as potential impediments to effectively addressing the COVID-19 emergency (see , e.g. , Executive Order No. 202.5 [suspending provisions of the Education Law and related regulations "to the extent necessary to allow physicians licensed and in current good standing in any state in the United States to practice medicine in New York State without civil or criminal penalty related to lack of licensure"] ). He also issued a number of directives aimed at slowing the spread of COVID-19 by limiting large gatherings of people (see , e.g. , Executive Order 202.1 [ordering the 30-day postponement or cancelation of "[a]ny large gathering or event for which attendance is anticipated to be in excess of five hundred people"]; Executive Order 202.3 [modifying the large gathering order in Executive Order 202.1 to gatherings where "more than fifty persons are expected in attendance"]; Executive Order 202.10 [cancelling or postponing all "(n)on-essential gatherings of individuals of any size for any reason"] ). These efforts effectively culminated in the issuance of Executive Order 202.8, which ordered all nonessential businesses and nonprofit organizations to "reduce [their] in-person workforce at any work locations by 100% no later than March 22[, 2020] at 8 p.m." (Executive Order 202.8).

The Office of Court Administration followed suit. Starting on Friday, March 13, 2020, the court system began drastically scaling back its operations in order to "reduce courthouse traffic." With respect to criminal proceedings, Chief Administrative Judge Lawrence Marks ordered that no new jury trials should be commenced. He also directed that "[n]o new grand juries shall be empaneled absent extraordinary circumstances." Acknowledging the legal ramifications of suspending jury trials and Grand Jury activity — including potential violations of sections 30.30 and 180.80 of the Criminal Procedure Law — Chief Administrative Judge Marks noted that he "anticipate[d] the imminent issuance of an appropriate gubernatorial Executive Order authorizing these actions addressing criminal jury matters" (March 13, 2020 memorandum from Chief Administrative Judge Lawrence K. Marks to all judicial and non-judicial personnel of the Unified Court System). In a memorandum issued two days later, Judge Marks ordered the postponement, "until further notice," of "all nonessential functions of the courts" (March 15, 2020 memorandum from CAJ Marks to all judicial and non-judicial UCS personnel). Court personnel not involved in essential court operations were directed to remain home indefinitely (March 17, 2020 memorandum from CAJ Marks to all judicial and non-judicial UCS personnel).

On March 20, 2020, the Governor issued Executive Order 202.8. Again invoking his authority under section 29 of Article 2-B of the Executive Law, the order provided, in relevant part:

In accordance with the directive of the Chief Judge of the State to limit court operations 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 prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.

(Executive Order 202.8).²

Two days later, in light of Executive Order 202.8 — which Chief Administrative Judge Marks characterized as "suspending statutes of limitations in legal matters" — Judge Marks directed that, "effective immediately and until further order, no papers shall be accepted for filing by ... a court in any matter of a type" not deemed essential. Essential criminal matters were, according to Judge Marks, limited to arraignments, bail applications, proceedings involving temporary orders of protection, re-sentencings of detained and incarcerated defendants, and "essential sex offender registration act (SORA) matters" (CAJ Marks AO/78/20, issued Mar. 20, 2020).

Meanwhile, at a little before 9:00 p.m. on March 19, 2020, defendant was arrested on bank robbery charges. He was arraigned the following day, in Queens Criminal Court, on a felony complaint that charged him with robbery in the first and third degrees. The complaint alleged that, during the afternoon of January 23, 2020, defendant robbed a branch of Popular Bank, in Queens, by displaying what appeared to be a firearm. The arraignment judge set bail and adjourned the case to March 25, 2020, for Grand Jury action.

By then, however, the Governor had issued Executive Order 202.8. And, just as consequentially, there were no Grand Juries empaneled in Queens County, since the Chief Administrative Judge had suspended the empanelment of new Grand Juries, and the term of the existing (Term 3) Grand Jury panels had ended on March 20, 2020. Thus, there had been no Grand Jury action with respect to defendant's case, nor had a preliminary felony hearing (see CPL 180.60 ) been commenced.

According to defendant, his attorneys made several unsuccessful attempts, on March 25th, to be heard by a criminal court judge so that they could argue that the Governor's order did not suspend CPL 180.80³ — which, as relevant here, requires the release of a defendant held in custody for Grand Jury action, after 120 or 144 hours have passed since his arrest, unless the People have commenced a preliminary hearing; the Grand Jury has filed an indictment, or the People have filed with the court a notice that an indictment has been voted; or the People have convinced the court that there is "good cause" not to release the...