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The People of the State of New York Ex Rel. Jonathan M. Kirshbaum, On Behalf of Daniel Omolukun v. Dora B. Schriro

New York Supreme and/or Appellate Courts Appellate Division, First Department


November 29, 2012

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JONATHAN M. KIRSHBAUM, ON BEHALF OF DANIEL OMOLUKUN,
PETITIONER-APPELLANT,
v.
DORA B. SCHRIRO, ETC.,
RESPONDENT-RESPONDENT.

People ex rel. Kirshbaum v Schriro

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2012

Andrias, J.P., Friedman, DeGrasse, Roman, Gische, JJ.

Judgment, Supreme Court, New York County (Larry Stephen, J.), rendered May 15, 2012, denying the writ of habeas corpus and dismissing the petition, unanimously affirmed, without costs.

The habeas court properly found that the bail court (Bruce Allen, J.) did not abuse its discretion in denying bail pending retrial (see People ex rel. Rosenthal v Wolfson, 48 NY2d 230, 232 [1979]). The bail court presided over a trial at which defendant was convicted of serious charges. That court subsequently granted defendant's CPL 440.10 motion to vacate the judgment based on newly discovered evidence, but it declined to fix bail pending a new trial. The fact that the court did not state its reasons for that determination does not warrant the conclusion that the determination was an abuse of discretion. The court implicitly based its ruling on the arguments of the parties, which addressed the factors enumerated in CPL 510.30(2)(a), as well as its familiarity with the strength of the prosecution's case viewed in light of the newly discovered evidence. Based on these factors, we find no abuse of discretion.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2012

CLERK

20121129

© 1992-2012 VersusLaw Inc.



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