People v. Meredith

• Decision Date: 30 October 1991
• Citation: 152 Misc.2d 387,578 N.Y.S.2d 79
• Parties: The PEOPLE of the State of New York v. Larry MEREDITH, Defendant.
• Court: New York Supreme Court

Page 79

578 N.Y.S.2d 79

152 Misc.2d 387

The PEOPLE of the State of New York v. Larry MEREDITH, Defendant.

Supreme Court, Criminal Term Kings County, Part 4.

Oct. 30, 1991.

Robert M. Baum, The Legal Aid Soc. by Andrew Horowitz, for defendant.

Charles J. Hynes, Dist. Atty., Kings County by John Bugliosi, Asst. Dist. Atty., for the State.

CAESAR CIRIGLIANO, Justice.

The defendant, who was convicted upon his guilty plea before a judge of concurrent jurisdiction, has applied to this court for a stay of judgment pending his appeal to the Appellate Division. The People acknowledge that this Court is empowered to entertain the defendant's application. The People contend, however, that the more appropriate forum for this application is the judge who presided over the hearing and took the defendant's plea. The People urge this court to forward the defendant's application to that judge. The defendant contends that this application is properly before this court and strongly objects to the transfer of this application.

The novel and important question thus posed is whether this court has the right to refuse to hear and decide the defendant's application. For the reasons discussed below, I hold that this court must entertain the defendant's application.

The controlling statutory provision gives the defendant the right to select the judge who is to decide the stay application and provides a broad array of judges from which the defendant may choose. Under Section 460.50 of the Criminal Procedure Law, a defendant, who has taken an appeal from a judgment or sentence of the Supreme Court or of the New York City Criminal Court, has the right to make a stay application to any justice of the Supreme Court of the appropriate judicial district, or to an appellate division judge of the appropriate department. ^* See e.g., People v. Holder, 70 Misc.2d 819, 335 N.Y.S.2d 157 (Supreme Court, Nassau County, 1972), aff'd, 45 A.D.2d 820, 357 N.Y.S.2d 693 (2d Dept.1974).

The choice of forum is quite fairly and properly given to the defendant since the defendant has but one opportunity to make an application for a stay of judgment pending appeal. Matter of Lefkowitz v. Cioffi, 46 A.D.2d 473, 475, 363 N.Y.S.2d 583 (1st Dept.1975). Indeed, "The selection ... of the Judge to whom to make the one and only application ... from a large menu of available judicial officers ... [is] all the more critical," because of the "essentially discretionary i.e., non-reviewable, nature of this type order." Bellacosa, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 460.50 at 45.

Notwithstanding the clear statutory language authorizing the defendant to select the forum in which his application is to be heard, the People urge this court to usurp the defendant's prerogative and transfer the defendant's application to the judge who conducted the hearing in this case and took the defendant's plea. The People argue that the judge who conducted the proceedings in this case is the best candidate for the task of deciding the defendant's application for a stay pending appeal.

However, the Legislature has not designated the presiding judge as the judge of choice in this matter, but has explicitly provided a broad selection of judges from which the defendant may choose. Unlike provisions governing bail applications made during the pendency of a criminal action, e.g., CPL 530.20, 530.40, the statutes governing stay applications authorize any judge of the indicated trial and appellate courts to hear and decide the application. Thus, pursuant to section 530.50, an order of bail or recognizance during the pendency of an appeal may be issued by "a judge who is otherwise authorized pursuant to section 460.50 or section 460.60," whereas, under section 530.20, "When a criminal action is pending in a local criminal court, such court ... must or may order recognizance or bail," and, under section 530.40 "When a criminal action is pending in a superior court, such court ... must or may order recognizance or bail ..." (emphasis added).

A judge who is statutorily authorized to hear a stay application and is designated by the defendant to decide it must entertain the application. The statutes governing both pre and post conviction applications for bail provide three alternatives: In certain circumstances the application must (a) be granted as a matter of law, or (b) denied as a matter of law, while (c) in other circumstances the granting or denial of the application lies within the court's discretion. See CPL 510.30(1); 530.10. However, in all events, the application must be decided.

Thus the referral of a stay application to the presiding judge is not authorized by statute, but is in derogation of the clear statutory requirement that the judge, selected by the defendant, hear and decide the application. When a judge declines to hear a stay application, the defendant is denied due process. "By providing a procedure for the fixing of bail pending appeal, the New York legislature obligated the New York courts to administer it fairly. An arbitrary denial of a right created by a State legislature is a denial of due process.... [A] total failure to consider an application as required by law" is an arbitrary denial of this right. United States ex rel. Cameron v. People of State of New York, 383 F.Supp. 182, 184 (E.D.N.Y.1974).

Indeed, I have not seen a case in which an appellate division judge referred a stay application to the judge who presided over the proceedings. Yet, the judges of the Appellate Division do not have firsthand information about the defendant who is seeking the stay, or about the case. Instead, they rely upon the submissions made by the parties and give substantial weight to the bail fixed by the presiding judge, who had a firsthand opportunity to observe the defendant. See e.g., People v. Laezza, 143 A.D.2d 424, 425, 533 N.Y.S.2d 3 (2d Dept.1988); People v. Kern, 137 A.D.2d 862, 524 N.Y.S.2d 521 (2d Dept.1988). A trial judge has access to the same information as does an Appellate Division judge and cannot decline to hear a stay application on the ground that the presiding judge is in a better position to decide it.

Illustrative of the compelling nature of the judicial obligation to decide a defendant's stay application is Justice Shapiro's decision in People v. Gonzalez, 402 N.Y.S.2d 584 (2d Dept.1978). There, the defendant's application for a stay pending appeal required Justice Shapiro to decide whether CPL 530.50 is unconstitutional. In declaring the provision unconstitutional, Justice Shapiro recognized that some of his associates might disagree with this determination. ^** He nonetheless felt constrained to make this difficult decision, saying, "the application in this case has been addressed to me, [and] I may not shirk my responsibility to pass upon it in the light of the law as I perceive it to be." Id. at 588.

In sum, the legislature has clearly authorized the defendant to choose among a broad number of trial and appellate judges and that decision is not one that can be usurped by a judge through the mechanism of transferring the application to the judge who presided over the case. Nor can this court shirk its responsibility to decide the application brought before it.

I therefore turn to consider the merits of the application.

Justice Brown, in deciding an application for bail pending appeal, summarized the requisite standards to be applied in making this determination:

When an order pursuant to CPL 460.50 is sought as a matter of judicial discretion, the concern of the Judge or Justice to whom the application is made is to...