The opinion of the court was delivered by: POLLACK
This is a petition for a writ of habeas corpus, brought by Edward Bobick, Esq., on behalf of his client, Joseph Sapia, pursuant to 28 U.S.C. § 2254. Sapia was arraigned in New York State Supreme Court, New York County, on September 20, 1973, on a charge of criminally selling dangerous drugs in the first degree, and two other lesser included narcotics charges. Bail was set by the Hon. Abraham Kalina at $250,000 on one charge, and $25,000 on the others; Sapia is currently being held in the custody of the respondent, the Warden of the Men's House of Detention at 125 White Street, in lieu of said bail. Urging that the amount of bail was unconstitutionally excessive, petitioner brings this application.
Exhaustion of State Remedies
As in all cases under 28 U.S.C. § 2254, the threshold inquiry is whether there has been the appropriate exhaustion of available state remedies. See Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 (1950). Here, the relator Sapia has already attempted to have the bail determination overturned via state habeas corpus; that petition was summarily denied by Justice Kalina. An appeal from that decision was taken to the New York State Supreme Court, Appellate Division, First Department. At that time, petitioner also moved to be granted an appeal preference, in order to expedite his appeal. On October 23, 1973, the Appellate Division entered an order denying petitioner's motion for, as they termed it, "an order reducing relator-appellant's bail and granting a preference in the hearing of the appeal taken by relator-appellant . . .". The respondent has argued to this Court that the Appellate Division has thus made a final determination of the bail question, and that therefore immediate appeal to the New York Court of Appeals is available to petitioner.
Petitioner, on the other hand, contends that his appeal from Justice Kalina's decision denying the writ of habeas corpus still must be perfected by a full hearing in the Appellate Division, and that that appeal will now not be heard before the December 1973 term of that Court. Thus, it is argued that petitioner may be foreclosed by these time limitations from obtaining the relief he seeks before trial of the underlying charges. 28 U.S.C. § 2254(b) seems to contemplate just such a situation in referring to "the existence of circumstances rendering such process ineffective to protect the rights of the prisoner" as an alternative to a showing that the remedies available in the courts of the state have been fully exhausted. This Court has strong doubts whether this petitioner has in fact fulfilled the exhaustion requirements of § 2254; however, for purposes of this application, petitioner will be deemed to have exhausted his state remedies. See United States ex rel. Shakur v. Commissioner of Corrections, 303 F. Supp. 303 (S.D.N.Y.1969), aff'd, 418 F.2d 243 (2d Cir. 1969), cert. denied, 397 U.S. 999, 90 S. Ct. 1144, 25 L. Ed. 2d 408 (1970).
The Merits of the Application
The law is clear that federal habeas corpus is available to test the constitutionality of the excessiveness -- or denial -- of bail by a state court to a prisoner awaiting trial. See In re Shuttlesworth, 369 U.S. 35, 82 S. Ct. 551, 7 L. Ed. 2d 548 (1962); United States ex rel. Covington v. Coparo, 297 F. Supp. 203 (SDNY 1969). See also United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972) (dictum). However, it is equally clear that a federal court will only inquire into whether the state judge's setting of bail is arbitrary or discriminatory or results in the denial of counsel or the denial of a fair trial. Bowring v. Cox, 334 F. Supp. 334 (W.D.Va.1971).
"Any other rule would not only commit the federal courts to the burdensome task of hearing evidence upon and setting bail de novo in a host of criminal cases, but also and much more intolerable, such a rule would authorize an unwarranted and unconstitutional encroachment upon the prerogatives of the states in the due administration of their processes of criminal justice." Simon v. Woodson, 454 F.2d 161, 165 (5th Cir. 1972).
Accordingly, the federal courts are not entitled to substitute their judgment for that of the state courts; the state judge's discretion will be accorded broad latitude. See, e.g., Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. denied, 376 U.S. 965, 84 S. Ct. 1128, 11 L. Ed. 2d 982 (1964); Turco v. Maryland, 324 F. Supp. 61 (D.Md.1971), affirmed, 444 F.2d 56 (4th Cir. 1971); United States ex rel. Shakur v. Commissioner of Corrections, supra ; Wansley v. Wilkerson, 263 F. Supp. 54 (W.D.Va.1967). "The extent of the power of this Court should be a determination of whether there has been any abuse of discretion, arbitrariness or discrimination which amounts to a transgression of the Fourteenth Amendment." Goodine v. Griffin, 309 F. Supp. 590 (S.D.Ga.1970). Here, the relator was arraigned on a 3-count narcotics charge, including one count charging him with the unlawful sale of more than two pounds of heroin. Bail was set at $275,000. New York has adopted a complex and exhaustive statute setting forth the factors to be considered on bail applications. That statute -- N.Y.C.P.L. § 510.30 (McKinney's Consol.Laws, c. 11-A, 1971) -- states, in pertinent part:
2. To the extent that the issuance of an order of recognizance or bail and the terms thereof are matters of discretion rather than of law, an application is determined on the basis of the following factors and criteria:
(a) With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required. In determining that matter, the court must, on the basis of available information, consider and take into account:
(i) The principal's character, reputation, habits and mental condition;
(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in ...