People v. Burton

• Decision Date: 23 November 1990
• Citation: 569 N.Y.S.2d 861,150 Misc.2d 214
• Parties: The PEOPLE of the State of New York v. Huwe BURTON, Defendant.
• Court: New York Supreme Court

Page 861

569 N.Y.S.2d 861

150 Misc.2d 214

The PEOPLE of the State of New York v. Huwe BURTON, Defendant.

Supreme Court, Bronx County,

Part 45.

Nov. 23, 1990.

Robert Johnson, Dist. Atty. by Elisa S. Koenderman, Asst. Dist. Atty., for the People.

William M. Kunstler, New York City, for defendant.

DOMINIC R. MASSARO, Justice.

Huwe Burton was arrested on January 6, 1989, and charged with the murder of his mother. Indicted for this and related crimes, the then 16-year-old tenth grader was arraigned on February 8th; bail was set in the amount of $150,000.00 cash or surety bond (Hecht, J.). Thereafter, Mr. Burton's case was referred to this Court for all purposes. On February 23, 1989, on application, the bail amount was reduced to $100,000.00. In order to gain his liberty pending trial, and in accord with the New York bail statutes, Mr. Burton attempted to post a bond secured by real property.

Section 500.10(17) of the Criminal Procedure Law defines "secured bail bond." Subsection "(b)" sets forth the requirement for this type of bond where the proffered collateral is comprised of real rather than of personal property. In essence, it provides that the value of the property must be "at least twice the total amount of the undertaking." It is noteworthy that said value does not equate with fair market value; rather, it is determined by a complex "class" formula: dividing the property's last assessed value by an equalization rate set by assessing authority wherein the property is situated, and by deducting from the quotient the amount of any outstanding lien(s) and/or encumbrance(s).

There is a "blended" equalization rate for New York State, a control figure maintained by the State Board of Equalization and Assessment that reflects a weighted averaging of the equalization rates for all classes of real property. ¹ The Real Property Tax Law, however, provides for the creation of "special assessing units"; the City of New York qualifies as one such unit (see Real Property Tax Law, Sec. 1801[a], 1803[1]. With respect to Mr. Burton's attempted posting of realty, this Court on a prior occasion has opined, "[a] fair reading of Section 500.10(17)(b) suggests that Defendant is entitled to benefit from use of the equalization rate established by the City of New York for the specific class of property sought to be posted here." ²

The property in question is a two-family house, defined as a "Class I" property. The applicable municipal class rate for Class I properties is 8.9%. The parcel's last assessed value is $28,400.00. Divided by the more beneficial 8.9% class equalization rate, the resulting valuation is $319,101.12. Deducting $163,511.20 for an outstanding first mortgage, the remaining equity was found to be $155,589.92, an amount more than $44,000.00 deficient of the $200,000.00 required under a strict reading of the statute.

Accordingly, the Court found the subject property insufficient to satisfy " 'at least twice the total amount' ... of the bail previously fixed at $100,000.00."

In a footnote to its opinion, the Court noted:

"Said determination leaves for another day consideration of ... the singular statutory requirement for 'at least twice the total amount of the [required] undertaking' ... with respect to securing bail with realty (as opposed to cash, personalty or any other form of surety bond)." That day has arrived. Mr. Burton now calls upon the Court to declare subsection (b) of section 500.10(17) of the Criminal Procedure Law unconstitutional. ³

In extenso, the challenged section reads as follows:

17. "Secured bail bond" means a bail bond secured by either:

(a) Personal property which is not exempt from execution and which, over and above all liabilities and encumbrances, has a value equal to or greater than the total amount of the undertaking; or

(b) Real property having a value of at least twice the total amount of the undertaking. For purposes of this paragraph, value of real property is determined by dividing the last assessed value of such property by the last given equalization rate of the assessing municipality wherein the property is situated and by deducting from the resulting figure the total amount of any liens or other encumbrances upon such property (see C.P.L. 500.10[17].

The defense mounts a two-pronged attack on the statute, contending that the subsection (1) discriminates as a class against those persons whose assets consist primarily of real rather than of personal property in violation of the Equal Protection Clauses of the United States and New York Constitutions (see U.S. Const., 14th Amend., Sec. 1; N.Y. Const., Art. I, Sec. 11); and (2) is irrational as a matter of law. As to the second argument, at least as applied in this case, the Court is in agreement.

Legislative History

New York's current bail statutes (C.P.L. 500.10 et seq.) are descended from the 1881 Code of Criminal Procedure, enacted at a time when the assessed value of real property was its fair market value. A parity as between assessed and market value of real estate would continued well into the present century. Nevertheless, the Code made no special provision for the posting of realty for purposes of bail, merely providing that the surety "shall be worth the amount specified in the undertaking, exclusive of property exempt from execution ..." (see Code Crim.Proc., Sec. 569[2].

The first provisions specifically relating to the posting of real estate for purposes of bail are found in Chapter 891 of the Laws of 1936, adding, inter alia, a subdivision (3) to provide that if real property were to be offered as security for bail "the assessed value of the said real estate, after deducting therefrom the amount of any other undertakings, mortgages, tax liens, water charges, or other liens of whatever nature upon said real estate, shall be not less than the amount specified in the undertaking."

[This legislation] enjoyed widespread support; it was seen as "needed to ... eliminate evils [emphasis added] which have been widespread in the past" (see Citizens Union of the City of New York to Hon. Herbert H. Lehman, Governor, May 25, 1936).

[Thereafter,] in 1942 ... further [efforts were made to] reform bail policy and procedure. Section 569(1) of the Code of Criminal Procedure was amended to give legislative sanction to the unofficial maintenance of "a list of undesirable bondsmen [emphasis added] ... [who have] used the same property on bail or as security for bail more than twice within a period of thirty days" (see The Association of the Bar of the City of New York, Committee on Criminal Courts Law and Procedure, Report No. 100, 1942). Subsection (3) was amended in tandem to require that the assessed value of real estate utilized to secure a bail bond "shall be at least twice the amount specified in the undertaking, and said real estate must not appear upon any official list of undesirable properties [emphasis added]" (see L.1942, c. 823)....

An enunciated purpose of the amendment was to make the then-current practice uniform as well as to insure the adequacy [emphasis added] of the security offered. In support of this position the Attorney General furnished the Governor a Memorandum [noting] that ... "in many instances where a smaller equity was accepted it was found that there were highly questionable circumstances [emphasis added] surrounding the acceptance of the bail ..." (Office of the Attorney General to Herbert H. Lehman, Governor, April 23, 1942).

The unambiguous intertwining of "evils," "undesirable bondsmen," "undesirable properties" and "highly questionable circumstances" with "adequacy" of the security offered for the purposes of bail appears regularly in a sampling of the reform literature of the period.

In 1965, subdivision (3) of section 569 of the Code of Criminal Procedure was once again revised (see L.1965, c. 273). The revision continued the use of double valuation--this portion of the proposed legislation was opposed by The Association of the Bar of the City of New York (see Legislative Bulletin, No. 42, 1965)--but provided that value be determined not by assessed value solely, but rather by "dividing the last assessed value ... by the last given equalization rate." This aspect of the amendment received widespread support from various governmental and bar association groups.

The effect of the 1965 revision is to increase the evaluation of real estate offered as security for bail to a more realistic figure. Prior to the bill's passage, many owners found their real property to tally valueless for bail purposes. By said time, due solely to purposes of taxation, a gap had developed in the parity between the assessed and the market value of realty. In the ensuing years, New York City tax policy in particular has widened the gap. Utilization of the equalization rate in the bail statute was seen as an effort to increase the value of the equity of the owner of real estate to enable more persons accused of crime to post bail.

Notwithstanding, even though the 1965 amendment made real estate valuation vis-a-vis bail more equitable, it by no means made such valuation reflective of market value. ⁴ For this reason, the State Board of Equalization and Assessment noted that it "cannot recommend approval of this bill." ⁵

In 1970, the Code of Criminal Procedure was repealed in its entirety and the present Criminal Procedure Law was enacted in its stead, effective September 1, 1971 (L.1970, c. 996). ⁶ Subsection 17(b) of section 500.10 of the new law replaced subsection (3) of section 569 of the former Code. The new subsection is substantially the same as the former subsection and employs the same formulation. All statutory reference(s) to "undesirable bondsmen" and "undesirable properties" had by 1970 disappeared.

Presumption of Constitutionality

The analysis called for here must begin with the principle, firmly established, that a legislative enactment is cloaked with a strong presumption...