People v. Johnston, CR-0192-20/CO

• Decision Date: 03 February 2020
• Docket Number: CR-0192-20/CO
• Citation: 67 Misc.3d 267,121 N.Y.S.3d 836
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Jonathan R. JOHNSTON, Defendant.
• Court: New York City Court

67 Misc.3d 267

121 N.Y.S.3d 836

The PEOPLE of the State of New York, Plaintiff,

v.Jonathan R. JOHNSTON, Defendant.

CR-0192-20/CO

City Court, New York, Cohoes.

Decided February 3, 2020

For the People: P. David Soares, Albany County District Attorney (Shanza Malik, Esq. of counsel)

For Defendant: Stephen Herrick, Albany County Public Defender (Jessica Gorman, Esq. of counsel)

Thomas Marcelle, J. Jonathan R. Johnston ("defendant") is charged with disobeying a traffic-control device in violation of Vehicle and Traffic Law § 1110 (a) ; aggravated unlicensed operation of a motor vehicle in the second degree in violation of the Vehicle and Traffic Law § 511 (2) (a) (ii) and aggravated unlicensed operation of a motor vehicle in the second degree in violation of the Vehicle and Traffic Law § 511 (2) (a) (iv). The latter two charges are Class A misdemeanors. Defendant appeared before the court, was provided the assistance of counsel and was arraigned ( CPL 170.10 ). Counsel waived a formal reading of the charges and entered pleas of not guilty. Next, the court had to either "release[e] the defendant on his own recognizance or fix[ ] bail for his future appearance in the action" ( CPL 170.10 [7] ).

Under the new bail statute, after a defendant is arraigned, the court's options are based on two criteria: (1) the type of offense and (2) the defendant's risk of non-appearance. The legislature has created two categories of offenses—"qualifying offenses" and "non-qualifying offenses" ( CPL 530.20 [1] [a-b] ).¹ In all cases, the court must impose the least restrictive set of conditions "to secure the [defendant]'s return to court when required" ( CPL 510.30 [1] ). However, in qualifying offense cases, the court, if it believes it to be the least restrictive means to prevent the defendant from absenting himself from court, may impose cash bail as a prerequisite to release ( CPL 530.20 [1] [b] ).

In non-qualifying offense cases, like this one, the court must presume that the defendant should be released on his own recognizance ( CPL 530.20 [1] [a] ; 510.10 [3] ). This presumption, however, is permissive and may be overcome if the court "finds on the record or in writing that release on the [defendant]'s own recognizance will not reasonably assure the [defendant]'s return to court" (id). To make such a finding, the court must examine information "relevant to the [defendant]'s return to court" ( CPL 510.30 [1] [a-g] ). If the court determines the presumption is overcome, it may place conditions on the defendant's release ( CPL 530.20 [1] [b] ). However, a court may never impose cash bail in non-qualifying offense cases, even when a court believes that cash bail is the least restrictive condition that "will reasonably assure the [defendant]'s return to court" ( CPL 530.20 [1] [a] ).

In this case, the court has examined the relevant statutory factors and is left with a grave doubt that defendant will return to answer the charges ( CPL 510.30 [1] [a-g] ). Of particular significance to the court is defendant's record of failing to appear ( CPL 510.30 [1] [a] and CPL 510.30 [1] [e] ). There is a lot to consider here. Between September 2015 and February 2016, the defendant failed to answer a summons or to pay fines in town courts located in three different counties (Saratoga, Delaware and Rensselaer Counties). These failures to appear earned him suspensions from three town courts. After clearing his suspensions, defendant relapsed back into his non-appearing ways. Between January 2017 and June 2019, defendant failed to answer a summons or to pay a fine in five different town courts in four different counties (Albany, Orange, Rensselaer and Schenectady Counties), earning him six separate suspensions. In all of these traffic matters, defendant was released without the burden of cash bail to ensure his return to court. Lacking a proper incentive, defendant has repeatedly and consistently ignored the lawful instruction of at least seven different courts commanding him to appear before them.

Most recently, in September 2019 defendant was charged in this court with several crimes including a violation of the Vehicle and Traffic Law § 511 (2) (a) (ii) and a violation of the Vehicle and Traffic Law § 511 (2) (a) (iv). During the course of prosecution, defendant twice disregarded a lawful order to appear in court on a return date. A bench warrant was issued on September 24, 2019, and defendant was returned on it on October 11, 2019. A month later, on November 19, 2019, the court had to once again issue a bench warrant because the defendant had failed to appear to answer the charges. Defendant returned to court on December 23, 2019.

Defendant has a long and incorrigible record of refusing to come back to court. The court believes with more than a fair amount of certainty that the defendant will not appear to answer the charges if released on his own recognizance. Thus, the court must "select[ ] the least restrictive alternative and conditions that will reasonably assure the [defendant]'s return to court" ( CPL 530.20 ). Although not explicitly denoted, the phrase "least restrictive" surely refers to restrictions on defendant's liberty. It should be said that non-monetary conditions are not always less onerous on a defendant's liberty than bail.

If limited to non-monetary conditions, the court would have to place travel restrictions on defendant and require him to wear an electronic monitoring device as specifications of release. Thus, defendant's location would be both limited and easily determined. These conditions would allow the police to locate, seize and bring the defendant back to answer the charges lodged against him should he fail again to reappear. All of this would be quite the intrusion on defendant's liberty. Rather, the court is of the opinion that "the least restrictive alternative and conditions that will reasonably assure [defendant's] return to court" is cash bail ( CPL 530.20 [1] [a] ). However, the court is forbidden from setting cash bail because neither charge in this case constitutes a qualifying offense ( CPL 510.30 ; 530.20).

This raises the question whether the legislature exceeded its authority by mandating that a court may never impose cash bail in non-qualifying offenses even when it determines—based upon an individual assessment—that it is the least restrictive method to ensure a defendant's appearance. The court allowed the parties time to brief and then argue this issue. Defense counsel argued against any constitutional violation; the prosecutor took no position.

The legislature is the strongest of the branches, wielding the most power, but its power does have limitations. One limit is the doctrine of separation of powers. New York's Constitution divides power among three branches of government. The Constitution "regulate[s], define[s] and limit[s] the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers" (New York State Bankers Association, Inc. v. Wetzler , 81 N.Y.2d 98, 105, 595 N.Y.S.2d 936, 612 N.E.2d 294 [1993] ). Although this doctrine does not appear explicitly in the State Constitution, separation of powers has "deep, seminal roots in the constitutional distribution of powers among the three coordinate branches of government" (Cohen v. State , 94 N.Y.2d 1, 11, 698 N.Y.S.2d 574, 720 N.E.2d 850 [1999] ). "The concept of the separation of powers is the bedrock of the system of government adopted by this State" (Soares v. Carter , 25 N.Y.3d 1011, 1013, 10 N.Y.S.3d 175, 32 N.E.3d 390 [2015] [internal quotations and citations omitted).

The Constitution gives each branch distinct roles: the legislative branch creates the law ( NY Constitution, article III, § 1 ); the executive branch enforces the law ( article IV, § 1 ); and the judicial branch interprets the law and decides cases and controversies that arise under the law ( article VI, § 1 ) (see generally Bourquin v. Cuomo , 85 N.Y.2d 781, 628 N.Y.S.2d 618, 652 N.E.2d 171 [1995] ). In criminal law, the legislature determines those acts which constitute a crime by passing a penal statute that describes the crime's elements and sets the punishment thereof (People v. Kohl , 72 N.Y.2d 191, 200, 532 N.Y.S.2d 45, 527 N.E.2d 1182 [1988] ). The penal law in turn provides the authority for the executive branch to arrest, detain and prosecute those individuals who it has cause to believe violated the law (Soares , 25 N.Y.3d at 1013, 10 N.Y.S.3d 175, 32 N.E.3d 390 ). Those arrested and accused by the executive branch are taken before a judge to be formally charged ( CPL 170.10 ). Thereafter, the court must guarantee that the defendant receives a fair process in accordance with the procedure established by the legislature and the mandates of the state and federal constitutions.

The legislature has a dual concern when it comes to bail. The first concern is public safety, and the legislature's most fundamental power revolves around making laws to protect the public (Mugler v. Kansas , 123 U.S. 623, 661, 8 S.Ct. 273, 31 L.Ed. 205 [1887] ). Whether a defendant may be detained pre-trial because he poses a danger to the community, is a call for the legislature to make —"[t]he means to be employed to promote the public safety are primarily in the judgment of the legislative branch of the government, to whose authority such matters are committed" (Missouri Pac. R. Co. v. City of Omaha , 235 U.S. 121, 127, 35 S.Ct. 82, 59 L.Ed. 157 [1914] ). To the extent that the legislature deems appropriate, it may authorize, within constitutional limits, a court to consider dangerousness as a factor (see United States v. Salerno , 481 U.S. 739, 754-55, 107 S.Ct. 2095, 95 L.Ed.2d 697 [1987] ).

Here, the legislature has not exercised its prerogative to make dangerousness explicitly relevant to pre-trial release. Moreover, to impose dangerousness as a factor in a pre-trial release (or not to do so) is of no moment to a court with...