The opinion of the court was delivered by: BRIEANT
By petition heard June 3, 1983, and fully submitted for decision on June 21, 1983, petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The facts are somewhat unusual. All appear from record in this case or in prior state court proceedings. No evidence was required to be taken by this Court.
On or about February 16, 1983, petitioner, a person formerly associated with Sentry Armored Courier Corp. ("Sentry"), was indicted in the Supreme Court of the State of New York, Bronx County, on five charges. These separate indictments, which include co-defendants, followed a burglary at the premises of Sentry, located in Bronx County, resulting in the loss of a very substantial amount of money. Sentry subsequently failed.
On February 18, 1983 in the Supreme Court of the State of New York, Bronx County, petitioner was arraigned and his bail was set in the total sum of $500,000, consisting of $100,000 on each Indictment. Petitioner raised the bail in cash and securities, which he deposited with a bondsman.
He was released on bail on a surety bond and remains so.
On March 30, 1983 petitioner's motion for a reduction of bail or release on his own recognizance was denied by the state court, following a hearing.
At the bail review hearing, the state court (Justice Vitale) took the position on the record that because petitioner had furnished the bail as previously imposed, and was thereafter released on bail, the bail as fixed on arraignment was, by that fact alone, not unreasonable. He said (Tr. p. 7):
"THE COURT: I wish to indicate in one sense the bail is not unreasonable. If he were in prison and you were arguing the bail is unreasonable because it's keeping him in prison, I could see a lot of merit, but he's out."
After further colloquy, the Court held (Tr. p. 10):
"THE COURT: The word 'excessive' is the only word that bothers me here because of the fact that . . . he is out. In that [sense] it couldn't be excessive."
Thereafter the application for a reduction of bail was denied.
The lack of logic in a contention that simply because bail has been set in an amount within reach of a criminal defendant it is ipso facto not unreasonable is, or should be, just as apparent as the reverse fallacy, that simply because a defendant cannot furnish the bail as set by the court, it is excessive. Excessiveness of bail is an objective finding to be made according to objective criteria, codified in New York by statute. See New York CPL § 510.30(2)(a). Means is not one of them. These criteria have constitutional underpinnings.
Since the law of New York entitles petitioner to a bail review hearing (due process), and the record shows that an improper and unconstitutional means test was used to determine excessiveness, vel non, rather than following the constitutionally required statutory criteria, this Court would grant the writ, conditioned upon a prompt bail review hearing in state court applying only the statutory criteria for fixing reasonable bail.
However, before doing so, we must advert to the requirement of exhaustion of state remedies, under 28 U.S.C. § 2254(b). The issue of exhaustion is particularly sensitive here, where this federal court is, in effect, being asked to interfere with an ongoing criminal proceeding in a state court. ...