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People v. Allen

County Court, Orange County

January 9, 2020

People of the State of New York, Plaintiff,
v.
Louis R. Allen, Defendant.

          THE LAW OFFICE OF JOSEPH E. RUYACK III, ESQ. Attorney for Plaintiff

          ORANGE COUNTY DISTRICT ATTORNEY Attorney for the People

          CRAIG STEPHEN BROWN, J.

         Defendant Louis R. Allen moves for an order granting the following relief: release of the principal on the principal's own recognizance, or in the alternative, a modification of the previously set bail to include non-monetary conditions or nominal monetary conditions, coupled with non-monetary conditions.

         The defendant is charged by Indictment No.2019-628 with the crime of Making A Terroristic Threat in violation of Penal Law §490.20(1). When the defendant was arraigned on October 23, 2019, this Court, after hearing the arguments of counsel, set bail in the amount of $75, 000 cash or $150, 000 bond. The defendant remained in custody. The allegations outlined by the People are that the defendant posted a Snapchat [1] story, which included a photograph of two guns (a long black gun and a black pistol with a clip) laid out on a bed. The text accompanying the photograph included statements to the effect that the defendant did not feel accepted, he hated everyone and everyone hated him. He stated that he had a plan to park at the high school parking lot, run down and "shoot it up." He was going to shoot people during the homecoming football game, which was scheduled for the following day. When confronted by someone that his comments were not funny, the defendant responded that it was not a joke and he was going to do it. There was a homecoming football game scheduled the following day at the defendant's former high school. The People contend that the defendant's father made material false statements regarding the presence of the guns depicted in the Snapchat post being present at the house and that those items were recovered from the house during the execution of a search warrant. Further, the People contend that the defendant told State Police investigators that he has three separate personalities when explaining his conduct.

         APPLICATION TO MODIFY BAIL

         The new bail statute provides that, "Upon any occasion when a court has issued a securing order with respect to a principal and the principal is confined in the custody of the sheriff as a result of the securing order or a previously issued securing order, the principal may make an application for recognizance, release under non-monetary conditions or [modification of the previously set] bail" (CPL 510.20[1]).

         The new bail statute requires that a court "shall release the principal pending trial on the principal's own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court" (CPL 510.10[1]). The court is required to explain its choice on the record or in writing (CPL 510.10[1]). As a further restriction on the courts, bail only may be set on a principal who is charged with a "qualifying offense." The relevant "qualifying offense" provisions for this Court's consideration in the instant case include: a violent felony offense as defined in Penal Law § 70.02, and a felony crime of terrorism as defined in article four hundred ninety of the Penal Law (CPL 510.10[4][a], [g]). Each of those respective provisions include exceptions. The only violent felony offenses excluded under the statute are burglary in the second degree, as defined in subdivision two of Penal Law §140.25 and robbery in the second degree, as defined in subdivision one of Penal Law §160.10. There are no other violent felony offenses that are exempt from constituting a qualifying offense (CPL 510.10[4][a]). The only felony crime of terrorism as defined in article four hundred ninety of the penal law that is exempt from being a qualifying offense is "the crime defined in section 490.20 of such law" (CPL 510.10[4][g]).

         The statute provides that the court "shall consider" several factors in determining the kind and degree of control or restriction that is necessary to secure a defendant's court appearance, including any "information about the principal that is relevant to the principal's return to court" (CPL 510.30[1]). Specific examples include: the principal's activities and history, the charges facing the principal, the principal's criminal conviction record, the principal's record of previous adjudication as a juvenile delinquent or a youthful offender, the principal's previous record with respect to flight to avoid criminal prosecution, and if monetary bail is authorized, the principal's individual circumstances and ability to post bail without undue hardship (CPL 510.30[1][a]-[f]).

         A hearing was conducted on January 3, 2020. The People were represented by Chief Assistant District Attorney Christopher Borek, Esq. The defendant was represented by Joseph E. Ruyuack, III, Esq. No witnesses were called by either party. The People introduced three documents into evidence. The first document received into evidence was a letter addressed to the Court from counsel for the principal. Counsel requested that a plea offer remain open for an extended period, beyond the time period previously agreed to by the parties. Counsel outlined the reasons why the offer should be kept open. On December 17, 2019, counsel went to the jail to discuss the offer and potential legal defenses with the principal. A deputy at the jail advised counsel that his client had defecated on himself, they were cleaning him up, and the client refused to meet with counsel. Counsel returned to the jail two days later and the principal refused to see him again. In speaking with the principal's father, counsel learned that the principal appeared "drugged or incoherent and distressed" on December 16, 2019 when the father visited him, and that the principal currently is refusing to be seen by his father at the jail. Counsel requested an extension of time so that he could have an opportunity to discuss the case with a client "that is competent and coherent." [2]

         The second document received into evidence was a copy of the principal's criminal history. There were no convictions identified. The criminal history reflected the arrest on the instant case, as well as a subsequent arrest of the defendant for sexual abuse in the second degree in violation of Penal Law §130.60(2) ("Sex Abuse"). While the Sex Abuse arrest was subsequent to the instant case, the date of the crime is identified as occurring prior to the allegations in the instant case. The third document received into evidence was a notice of intent to use statements pursuant to CPL §710.30(1)(a). The notice was related to the principal's arrest for Sex Abuse. The principal purportedly admitted to a State Police investigator that he had oral sex and received a "hand job" from an underage girl, that he had communicated with the underage girl through text messages, and that he deleted the evidence "so they couldn't be found." No evidence was presented on behalf of the principal.

         The principal (in the instant application, the defendant) contends that he is charged with a crime that does not constitute a "qualifying offense", therefore, this Court is without authority to set bail. The plain language contained in CPL 510.10(4)(g) states that the felony crime of terrorism as defined in "section 490.20" - the very section under which the principal in this case is charged - is a non-qualifying offense. In the alternative, the principal contends that even if he is charged with a qualifying offense, there are non-monetary conditions or nominal monetary conditions coupled with non-monetary conditions that will reasonably assure the principal's return to court. Those options serve as the least restrictive alternatives, therefore, this Court must order those alternatives, as opposed to the current bail.

         The People assert that the defendant is charged with a qualifying offense, and there are no non-monetary conditions that will reasonably assure the principal's return to court. The People concede, however, that the new bail statute requires that this Court issue a third form of bail in the form of either an unsecured bond or a partially secured bond.

         LEGAL ...


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