People v. Davis

Decision Date20 September 1996
Citation653 N.Y.S.2d 789,170 Misc.2d 987
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Ulysses DAVIS, Defendant.
CourtNew York City Court

David Goodman, Public Defender of Dutchess County, Poughkeepsie (Thomas N. N. Angell, of counsel), for defendant.

William V. Grady, County Attorney of Dutchess County, Poughkeepsie (Jeremy J. Scileppi, of counsel), for plaintiff.



On or about August 19, 1996, the defendant was arrested on two felony counts of Attempted Robbery in the Second Degree pursuant to Penal Law Sections 110.00, 160.10(1) and 160.10(2). Defendant was promptly arraigned before a judge of this Court later that same day, and bail was set. The matter was thereafter adjourned until August 23, 1996 for a preliminary hearing.

On August 23, 1996, prior to his appearance in this Court for the preliminary hearing, the defendant was brought before a superior court on a violation of probation complaint relating to a previous conviction. He was arraigned in the superior court and bail was set on that charge.

Upon appearing in this Court in the afternoon of August 23, 1996, the District Attorney declined to go forward with a preliminary hearing and stated that the People would not oppose a motion to release the On August 26, 1996, the defendant requested that a preliminary hearing be scheduled. At that time, however, the People advised the Court that they would not participate in a preliminary hearing and again confirmed their willingness to have the defendant released on his own recognizance pending prosecution. Again, for strategic reasons, the defendant declined a straight release and nominal bail was continued. The matter was then adjourned for the defendant to file the instant motion for "an Order granting defendant a preliminary hearing pursuant to Criminal Procedure Law Section 180.10, together with such other and further relief as this Court may deem just and proper."

defendant on his own recognizance pursuant to New York Criminal Procedure Law Section 180.80. For strategic and practical reasons, defense counsel requested that the Court set nominal bail, which was done, and the matter was adjourned until August 26, 1996.


Defendant's motion is essentially based on two arguments. First, that under New York Criminal Procedure Law Section 180.10(2), the defendant has a right to a "prompt" preliminary hearing on the felony charges, irrespective of the custody status of the defendant, unless such a hearing is waived by the defendant. Second, that the defendant has a right to a "prompt" preliminary hearing under both the Fourth Amendment to the U.S. Constitution and Art. 1, Sec. 12 of the Constitution of the State of New York. For purposes of clarity, the Court will address the constitutional question first.


By virtue of its "incorporation" into the Fourteenth Amendment, the Fourth Amendment protects against unfounded invasions of liberty and privacy. 1 Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975); see also Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693-2694, 61 L.Ed.2d 433 (1979). As stated by the Supreme Court, both "the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents." Gerstein, supra at 111, 95 S.Ct. at 861-862 (emphasis added). As further stated in Gerstein at page 112, 95 S.Ct. at 862:

To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.

The classic statement of this principle appears in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948):

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Undoubtedly, maximum protection of an individual's rights could best be assured by requiring a magistrate's review, or perhaps even a full hearing accompanied by the full panoply of adversary safeguards, whenever probable cause is at issue, whether prior to an arrest, as a prerequisite to incarceration, or merely because a charge is pending. Such a requirement would, however, constitute an intolerable handicap for legitimate law enforcement. See Gerstein, supra at 113, 95 S.Ct. at 862-863. Therefore, the Supreme Court has struck a practical compromise, as explained in Gerstein, supra at 113-114, 95 S.Ct. at 863:

Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however Thus, where there is a warrantless arrest and the accused has been taken into custody, the accused has a right under the Constitution to a prompt probable cause determination by a neutral magistrate. That determination must generally take place within 48 hours of the arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 1669-1670, 114 L.Ed.2d 49 (1991). Significantly, however, the probable cause determination need not take the form of an adversary hearing. As stated in Gerstein, supra at 120, 95 S.Ct. at 866:

the reasons that justify dispensing with the magistrate's neutral judgment evaporate.

These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard--probable cause to believe the suspect has committed a crime--traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.

The purpose of Gerstein was to make clear that the Fourth Amendment requires every State to provide a prompt "determination" (although not necessarily a hearing) regarding probable cause. Gerstein does not, however, impose on States a rigid procedural framework. Rather, individual States are free to create their own procedures to determine probable cause, so long as those procedures comply with constitutional requirements. Riverside v. McLaughlin, 500 U.S. supra at 53, 111 S.Ct. at 1668. Thus, whatever the procedures a State may choose to adopt, it remains clear that "the Constitution does not require an adversary determination of probable cause." Gerstein, supra at 123, 95 S.Ct. at 868. What is required by the Constitution is that whatever the procedures adopted by a State, those procedures must provide "a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty...." Id. at 125, 95 S.Ct. at 868-869 (emphasis added). 2


In crafting the "significant pretrial restraint of liberty " standard (which triggers the constitutional requirement for a "fair and reliable determination of probable cause"), the Supreme Court attempted to reconcile the important competing interests faced by the States. On the one hand, the Court recognized that States have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity. On the other hand, the Court realized that prolonged detention based on incorrect or unfounded suspicion may unjustly imperil a suspect's job, interrupt his source of income, and impair his family relationships. Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 1667-1668, 114 L.Ed.2d 49 (1991). As previously stated, of course, each State is free to determine its own procedures to effectuate the constitutional requirement of a probable cause determination. 3

Some jurisdictions have interpreted a "significant pretrial restraint of liberty " as being synonymous with prolonged incarceration, and have created procedures requiring that a preliminary hearing be held in such cases to "protect innocent persons from languishing in jail on totally baseless accusations." United States v. Mulligan, 520 F.2d The Supreme Court in Gerstein, however, was careful not to define a "significant pretrial restraint of liberty " as meaning only incarceration. Rather, they specifically left open the possibility that a defendant who had been released from custody might nevertheless be entitled to a probable cause determination of some sort. As stated in Gerstein, supra at 114, 95 S.Ct. at 863:

1327, 1330 (6th Cir.1975). Indeed, the Sixth Circuit Court of Appeals has gone so far as to say that incarceration is "the only legal justification" for a preliminary hearing. Id. at 1330.

Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty.

In further defining the standard, however, the Court specifically noted that a "significant pretrial restraint of liberty " would necessitate more than the mere obligation to appear in court. Gerstein, supra at 125 n. 26, 95 S.Ct. at 869 n. 26:

Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial. There are many kinds of pretrial release and many degrees of conditional liberty ... but the...

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