People v. Gigante

• Decision Date: 12 September 1957
• Citation: 9 Misc.2d 881,173 N.Y.S.2d 971
• Parties: PEOPLE v. Vincent GIGANTE.
• Court: New York Court of General Sessions

Page 971

173 N.Y.S.2d 971

9 Misc.2d 881

PEOPLE v. Vincent GIGANTE.

Court of General Sessions, New York County.

Sept. 12, 1957.

Maurice Edelbaum, New York City, for defendant, in support of motion.

Frank S. Hogan, New York City, by Vincent Dermody, Asst. Dist. Atty., of counsel, in opposition to motion.

MITCHELL D. SCHWEITZER, Judge.

This is an application by the defendant for a reduction of bail.

The defendant was indicted for the crime of attempted murder in the first degree. On the arraignment, no application was made on behalf of the defendant for the fixation of bail, his counsel having at the time stated that he was not prepared to argue the matter. The district attorney, however, requested that bail be fixed in the sum of $150,000, and, no objection having been voiced by the defendant, bail was fixed in said amount.

The instant application to reduce the bail is based upon facts which were not called to the attention of the court on the arraignment. Oral argument was had before the court by both sides, in the courts of which the alleged facts were presented.

The admission of a defendant to bail in a felony case is a matter of discretion (sec. 553, Code of Criminal Procedure). 'Denial of bail is no light matter, and needs to be buttressed by a real showing of reasons therefor' (People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 398, 49 N.E.2d 498, 501). The district attorney, by his original application to have bail fixed in the sum of $150,000, has conceded that bail should not be denied in the exercise of the court's discretion. In reaching a determination of the amount of the bail, heed must be given the constitutional injunction against 'excessive bail' (Article I, sec. 5, N. Y. State Constitution).

In seeking a reduction of bail, defendant places principal reliance upon People ex rel. Lobell v. McDonnell, 296 N.Y. 109, 71 N.E.2d 423. In that case, the defendant was indicted for certain forgeries and larcenies involving $780,000. The County Court Judge fixed bail in the sum of $250,000. In holding that bail in such an amount was excessive and in violation of the defendant's rights, the Court of Appeals wrote (296 N.Y. at pages 111-112, 71 N.E.2d at page 425): 'The policy of our law favors bail because of the presumption that the prisoner is innocent. 'The reason for taking bail is, that the guilt of the prisoner is doubtful.' People v. Lohman, 2 Barb. 450, 454. The amount must be no more than is necessary to guarantee his presence at the trial. 'The reasonableness of the amount is to be determined by properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused.' United States ex rel. Rubinstein v. Mulcahy, 2 Cir., 155 F.2d 1002, 1004. The bailing court has a large discretion, but it is a judicial, not a pure or unfettered discretion. The case calls for a fact determination, not a mere fiat. The factual matters to be taken into account include: 'The nature of the offense, the penalty, which may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction * * *'. People ex rel. Rothensies v. Searles, 229 App.Div. 603, 604, 243 N.Y.S. 15, 17, and cases cited; see, also, People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 49 N.E.2d 498.'

The Court of Appeals did not attempt to lay down any rigid formula in the Lobell case for the determination of proper bail in any given case. It is noteworthy that, shortly after the decision in that case, the Court of Appeals upheld bail of $250,000 which had been fixed with respect to material witnesses in two separate cases (People ex rel. Rao v. Adams, 296 N.Y. 231, 72 N.E.2d 170; People ex rel. Gross v. Sheriff of City of N. Y., 302 N.Y. 173, 96 N.E.2d 763). A reading of these and numerous other cases demonstrates that each case must rest upon its own peculiar facts and that a large measure of discretion rests with the judge to whom the application for bail is addressed.

With the foregoing principles in mind, let us now consider the facts in the record. The defendant is twenty-nine years of age, is married and lives in New York City with his wife and four children. He is employed as a superintendent in an apartment house and is represented to be a person of modest means. He has had several minor conflicts with the law, mostly relating to violations of the gambling statutes. It is stated that he is presently suffering from a serious gall bladder condition, which may necessitate a major operation. He voluntarily surrendered to the police approximately three and a half months after the commission of the crime.

In opposing the...