Local law enforcement argue measure creates undue difficulties
By Terry Duffy
This week, Chief Judge Janet DiFiore of the New York State Court of Appeals said she felt confident the “unintended consequences” of New York’s new cash bail reform law would ultimately undergo changes, allowing judges to regain the ability to hold suspects in jail who are deemed too dangerous for release.
“I believe that, without compromising the purity of its purpose, the new legislation can be amended – and strengthened – to recognize a narrow exception allowing judges, after a full and fair adversarial hearing, to detain a defendant in those few and extraordinary cases where such a credible threat exists,” DiFiore said in remarks Wednesday at the annual State of the Judiciary address in Albany. “Eliminating judicial discretion to fashion an effective securing order for a defendant in those limited circumstances is counterproductive to the cause of reform.”
DiFiore’s comments, if anything, could be seen as only reinforcing the views of dozens, if not hundreds, of law enforcement professionals – those on the front line throughout the state.
Lewiston Police Chief Frank Previte said he felt the cash bail reform law, as currently written, creates undue difficulty for law enforcement to carry out its duties.
“Bail reform, obviously, has impacted us as well as other police departments in the area … in some of the instances where they have normally taken people for arraignment, we (no longer) can, because those instances don’t qualify … there’s only certain ones that qualify for arraignment,” he said.
Previte said that has negatively affected police in the carrying out of their daily tasks of upholding the law, while also placing undue hardship on victims.
Recalling a recent difficult arrest involving Lewiston officers, Previte said the end result encountered is now becoming all too familiar: “We had an incident where a guy was resisting the officers. He wouldn’t get out of the car. He had to be tased and dragged out of the car and fought with the officers. They had to put him in handcuffs, put him in the car. (Then) they issued him an appearance ticket, but had to take the handcuffs off of him.”
Recalling another incident, Previte said a Village of Lewiston resident came home only to find it had been ransacked and items missing. Following significant police time and expense, investigation and pursuing an arrest, LPD was again constrained due to the bail reform.
“They broke in someone’s house and stole a lot of stuff, and we found the people in Amherst … we had to issue them an appearance ticket,” Previte said.
Bringing up yet another case, where an arrest had been made following an incident between two subjects, Previte related, “We had somebody call. … They had a problem; there was charges stemming from an incident that happened between two people. We had charges against the people, and we picked the person up on a warrant, and we had been looking for the person for a while, because we couldn’t locate him. We made an arrest, and the person was released and the victim called up the police department, (asking) ‘What the heck is going on? You mean to tell me they’re right back out? We’ve been having problems with this person.’
“We had to explain, ‘Look, it has noting to do with us, we (just) can’t do it.’ ”
So tells the tales of bail reform.
When questioned as to whether the argument of probable cause on holding a suspect could be considered for any of the above examples, Previte responded, “There is no probable cause to retain for those. If the offense does not qualify for bail, then there’s very little discretion other than for a judge to place bail – according to how the law as written now, unless (the suspect) has failed to appear for a number of times. And even if you deem them to be a risk, or just because they fight with a cop now, it doesn’t make a difference.”
Gov. Andrew Cuomo passed the law with an intent of reducing the number of suspects, oftentimes minority, whom the bill’s backers argue were forced to remain locked up in jails awaiting arraignment due to their inability to post bail.
The new bail reform measure has created a “blanket approach” of the state addressing the issue, with dozens of infractions – many of them serious and of felony nature – now relegated to appearance ticket status rather than court bail for the defendant.
Consider what is now titled “Qualifying Offenses,” where the defendant is released on his or her own recognizance. According to www.new-york-lawyers.org, a website representing New York City criminal lawyers and former Manhattan prosecutors, the following is found under New York state’s CPL 510.10 (4), Qualifying Offenses:
“Violent Felonies set forth in Penal Law 70.02 other than two specific subsections of Second Degree Robbery, Penal Law 160.10(1) where a defendant is allegedly aided by another person, and Second Degree Burglary, Penal Law 140.25(2), where the property allegedly burglarized is a legally defined ‘dwelling.’
“Witness Intimidation pursuant to Penal Law 215.15.
“Any degree of Witness Tampering pursuant to Penal Law 215.11, 215.12 and 215.13.
"… Any Class ‘A’ felony other than Controlled Substance Crimes codified in Penal Law Article 220. However, Penal Law 220.77, Major Drug Trafficker and Kingpin Statute, is a Qualifying Offense.
“Any felony sex crime or offense defined in Penal Law 70.80, any degree of Incest pursuant to Penal Law 255.25, 255.26 or 255.27, or any misdemeanor sex offense codified in Penal Law Article 130.
“Second Degree Conspiracy, Penal Law 105.15, only if the underlying allegations involve a conspiracy to commit a Class ‘A’ felony listed in Penal Law Article 125.
“First and Second Degree Money Laundering in Support of Terrorism, Penal Law 470.24 and 470.23 respectively, and any crime relating to Penal Law Article 490 Terrorism, other than Making a Terroristic Threat pursuant to Penal Law 490.20.
“Certain crimes involving Criminal Contempt including Second Degree Criminal Contempt, Penal Law 215.50(3), subsections (b), (c) or (d) of First Degree Criminal Contempt, Penal Law 215.51, and Aggravated Criminal Contempt, Penal Law 215.52. However, the basis of these charges must stem from a violation of an Order of Protection, aka, Restraining Order, involving a family member or intimate partner. These Contempt crimes must involve Domestic Violence.
“Facilitating a Sexual Performance of a Child with a Controlled Substance or Alcohol, Penal Law 263.30, Use of a Child in Sexual Performance, Penal Law 263.05, and Luring a Child, Penal Law 120.70.”
Commenting on the bail reform measure, the New York State Bar Association (www.nysba.org) stated, “The new statute drastically reduces the use of cash bail through mandatory release, and provides additional procedural and due process safeguards.
“The statute creates a mandatory appearance ticket rule for everything up to an E felony. An arresting officer must issue an appearance ticket rather than holding the person in custody until arraignment in all cases except those charging Class A, B, C, or D felonies; certain sex offenses; escape; or bail jumping. There are also circumstances where the police are not required to issue appearance tickets regardless of the offense level, for example, if the court could issue an order of protection or suspend or revoke a driver’s license. Where an appearance ticket is issued, the arrestee may provide contact information to receive court notifications, including a phone number or email address.
“The bill has a provision for mandatory release (or release with nonmonetary conditions) for almost all misdemeanors and non-violent felonies. All persons charged with misdemeanors (except sex offenses and domestic violence contempt), nonviolent felonies, robbery in the second degree, and burglary in the second degree, must be released on their own recognizance unless it is demonstrated and the court makes a determination that the principal poses a risk of flight to avoid prosecution. Otherwise, they must be released with non-monetary conditions (pretrial services) that are the least restrictive condition(s) that will reasonably assure the principal’s return to court.”
Previte said his department is frustrated by the limits the measure has placed on the law enforcement community.
“It is bizarre, things like robberies, burglaries, assaults, even some sexual stuff with minors, is exempt. There’s only things that are certain things with domestics that are inclusive, or are with more serious crimes, as well,” he said. “Having said that, that’s the one point that has really impacted us. And what I think is a big flaw with the law is anytime that we have anybody that we have that an officer fights with (recalling the earlier car incident) … unless there is physical injury and it rises to look like some type of felony, we have to turn around and let him go.
“And what do you think is going to happen? Most of the time when they fight with us, we’re going to let them go. Usually it’s not going to be we’re done and everything’s fine.
“So that’s a big part of it, as well as some of the other stuff, like just some of the things (where) people could be at risk, like the burglary that we talked about. If they want to come and retaliate, and do something against the victim, again … (it’s a problem).”
Next week, a look into the discovery factor and the strains it is putting on law enforcement, the district attorney’s office, and the courts.