People v. Holder

• Decision Date: 03 August 1972
• Citation: 335 N.Y.S.2d 157,70 Misc.2d 819
• Parties: The PEOPLE of the State of New York v. Howard M. HOLDER and Lynnor Gershenson, Defendant-Appellants.
• Court: New York Supreme Court

Page 157

335 N.Y.S.2d 157

70 Misc.2d 819

The PEOPLE of the State of New York v. Howard M. HOLDER and Lynnor Gershenson, Defendant-Appellants.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 3, 1972.

William Cahn, Dist. Atty. of Nassau County (Stephen Scaring, Mineola, of counsel), for the People.

Bracken & Sutter (John J. Sutter, Mineola, of counsel), for defendant-appellants.

MEMORANDUM

BERNARD F. McCAFFREY, Justice.

The defendants were convicted on May 3, 1972, after a non-jury trial, of conspiracy in the first degree to commit the crime of murder, a Class C felony. On June 6, 1972 they were sentenced to an indeterminate sentence of imprisonment, which shall have a maximum period of twelve years. They are now seeking relief, pursuant to CPL 460.50, for an order staying and suspending the execution of the aforementioned judgment and releasing the defendants in their own recognizance, or in the alternative setting bail in such sum as to the Court may seem just and proper pending the determination of an appeal to be taken to the Appellate Division, Second Judicial Department.

Although most states have constitutional provisions affording bail as a matter of right, except in capital cases, Article I, Section 5 of the New York Constitution, which prohibits excessive bail accords no right to bail. (People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 398, 49 N.E.2d 498, 500.) The United States Supreme Court has also held that the constitutional provisions requiring that bail not be excessive do not grant an absolute right to bail. (Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 96 L.Ed. 547.) Further, the mere fact that a defendant has a right to appeal from a verdict does not automatically confer upon him the right to bail. The legislature may accord the right to appeal to a person convicted of a crime 'Upon such terms as in its wisdom may be deemed proper'. (McKane v. Durston, 153 U.S. 684, 687--688, 14 S.Ct. 913, 915, 38 L.Ed. 867.)

The legislature has by virtue of Section 530.50 CPL authorized a judge who is permitted under Section 460.50 and Section 460.60 to issue an order of recognizance or bail pending the determination of an appeal. Furthermore, it is immaterial that there is no precedent for a judge of this Court to entertain this application in that it concerns a decision rendered by another justice of this Court without a jury (Widlitz, J.), and the People have not cited any statutory or decisional authority to support their contention and the Court knows of none, for to the contrary the statute places jurisdiction in this Court to pass upon said application. The Court thereby has jurisdiction to entertain this motion.

Prior to September 1971 when CPL § 460.50, the basis for the instant application, became effective, the controlling element for a stay was based on a certificate of reasonable doubt in accord with the then Code of Criminal Procedure §§ 527 and 529. As the law then existed the question was not whether 'there will be a reversal on appeal, but rather whether, in the opinion of this Court, there is presented an arguable substantial question as to claimed error which, in justice, should be decided by the Appellate Tribunal.' (People v. Brod, Sup., 203 N.Y.S.2d 947, 948; People v. Hines, Sup., 12 N.Y.S.2d 454.) The basis for the above-mentioned action would appear to primarily be existence of error on a substantial question. However, the new law as indicated in Professor Denzer's Practice Commentary, § 460.50 of the CPL 'shifts the emphasis in the filed by regarding the 'stay' aspect as of relatively minor importance and by treating the whole subject as primarily a bail problem. Thus, without postulating any criteria, the instant section (subd. 1) cursorily provides for discretionary stay orders accompanied by discretionary orders of bail.' (CPL § 460.50, McKinney's Consolidated Laws of New York, Book 11A, Part 2, p. 429.)

As earlier stated, the Court may entertain this motion, however, the criteria governing the relief applied for by an appellant-defendant are set forth in CPL § 510.30 and more particularly § 510.30,...