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People ex rel Raucci v. Pollard

State of New York Supreme Court, Appellate Division Third Judicial Department


December 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. STEVEN C. RAUCCI, APPELLANT,
v.
GORDON POLLARD, AS ACTING SCHENECTADY COUNTY SHERIFF, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: October 21, 2009

Before: Spain, J.P., Rose, Malone Jr., McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (Giardino, J.), entered July 23, 2009 in Schenectady County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, after a hearing.

Petitioner commenced this CPLR article 70 proceeding alleging that County Court (Hoye, J.) abused its discretion in twice denying his bail application. Following a hearing, Supreme Court determined that County Court had properly considered the appropriate statutory factors in denying the bail application and dismissed the petition. Petitioner appeals.

The scope of our review in this habeas corpus proceeding is limited to a determination of whether the bail court abused its statutory discretion in denying petitioner's application or if the denial was unconstitutionally arbitrary (see People ex rel. Klein v Krueger, 25 NY2d 497, 499 [1969]; People ex rel. Robinson v Campbell, 184 AD2d 988 [1992]; People ex rel. Hunt v Warden, 161 AD2d 475, 475 [1990], lv denied 76 NY2d 703 [1990]). As the record reflects that County Court considered the relevant statutory factors in denying bail, including petitioner's character and reputation and the seriousness of the crimes with which he is charged (see CPL 510.20 [2] [a]), and that its conclusions are supported by record evidence, we cannot say that County Court abused its "sole non-reviewable discretion" in denying petitioner bail (People ex rel. Klein v Kreuger, 25 NY2d at 502; see People ex rel. Litman v Warden of Manhattan House of Detention, 23 AD3d 258 [2005], lv denied 6 NY3d 708 [2006]). Nor do we find that County Court violated petitioner's constitutional protection against the arbitrary refusal of bail. Petitioner's remaining contentions have been reviewed and we find them to be unpersuasive.

Spain, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20091217

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