by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

There have been a number of recent occasions on which prosecutors have argued during bail applications that there is no change in circumstances, seemingly implying that a court cannot reconsider bail.  Occasionally, this is argued in Part I during a bail review.  Increasingly, it is argued at arraignments on indictment.   Although a prosecutor may certainly make the argument in suggesting to the court that the court might want to consider the earlier court's determination, there is no law that binds the Part I judge or arraigning superior court judge to refuse to reconsider bail.  In fact, the law really appears to be the opposite..  But the argument seems to be gaining traction as a way of opposing our bail applications.  As the argument is made more frequently, it seems that some judges are then asking the question, "Is there a change in circumstances?" Defense counsel must be familiar with the law and ready to respond to that question, so that "change in circumstances" does not become the new (wrong) standard for bail applications.

As many of you know, when a defendant is first arraigned in City Court, the attorney doing the arraignment has little or no information about the defendant.  There is an accusatory instrument, perhaps with names and details redacted, and a recommendation from Pre-trial Release Services if they were able to find someone to verify information.  There is an eligibility form which has very little information.  The attorney from the Public Defender's Office does not have the opportunity to go back and discuss details of the person's life, reviewing the bail factors contained in CPL 510.30 like character, reputation, mental condition, employment, family ties, etc.  There has been no  investigation.  So after a fairly quick review, the City Court judge sets bail.  With counsel at arraignment in local courts, the process is changing, but the opportunity to obtain all of the necessary information isn't there.  

So when a City Court judge sets bail based on a quick exchange between attorney and defendant and a pitch by the prosecutor, it wouldn't make sense for that to be the last word on bail.  Keep that in mind when you are asked at a Part I bail application or arraignment in superior court about what the bail was in local court.  Be prepared to respond (if true, of course)  that you were not there, there was no opportunity for someone to engage in a sufficient discussion with the defendant, etc.  (But keep in mind with counsel at arraignment now occurring in local courts, there may be a more extensive conversation than what takes place in City Court - check with the arraigning attorney.  There still has been no investigation, though.)  

It's worth looking  at the applicable bail statutes and case law to consider when a court is bound by a prior determination of bail.  (Spoiler - in Part I, or at arraignment in superior court, never.  In fact, in any situation, probably never, though a habeas court is bound by the record below.)

CPL Articles 500, 510, 520 and 530 address various aspects of bail.  The bail determination that must be made by a local criminal court on arraignment is governed by CPL 530.20 ("Order of recognizance or bail; by local criminal court when action is pending therein.")  That statute addresses when a local criminal court must or may set bail.  

Part I applications

Part I bail review (the review by a superior court of bail set in a local criminal court) is addressed in CPL 530.30 ("Order of recognizance or bail; by superior court judge when action is pending in local criminal court.")  This statute DOES NOT contain any language about "change in circumstances,"  Instead, it addresses the right of a DEFENDANT (not prosecutor) to make an application when the local criminal court is unauthorized to order recognizance or set bail (A felonies, double predicates), has denied an application for recognizance or bail, or has fixed excessive bail.  This statute doeslimit a defendant to one opportunity to make a Part I application. It should be noted that if the legislature had intended the local court's determination to be binding in Part I it would not have allowed for the type of review contained in the statute, and it would have included the "change in circumstances" language.

Since that statute appears to specifically invite a bail application despite a lack of change in circumstances, as the court can review what you consider excessive bail, the phrase shouldn't even make it into the conversation.

Arraignments on indictments

At arraignment on an indictment in superior court, the superior court must also review bail.  The CPL sets forth the obligation of the arraigning court:  CPL 210.15(6), which addresses arraignment upon indictment, states "Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, (emphasis added)  issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action."  530.40 states,  "When a criminal action is pending in a superior court, such court, upon application of a defendant, must or may order recognizance or bail as follows..." Subdivision 2 states "When the defendant is charged with a felony, the court may, in its discretion, order recognizance or bail.  In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recognizance or bail which is still effective, the superior court's order may (emphasis added) be in the form of a direction continuing the effectiveness of the previous order."   Again, the language "change in circumstances" does not appear in these statutes.  And again, the legislature could have included it had it so intended.  Instead, the statute permits, but does not in any way require, the felony arraigning court to continue the lower court's order.  

So at arraignment on a felony, the superior court has the option, not the obligation, to continue the prior court's bail or recognizance.  If the arraigning court were bound by the lower court's decision, then a judge in local court would have the authority to set the permanent bail amount on a case that the local court judge does not even have jurisdiction over following indictment.  That wouldn't make sense, would it?

So what's all this about "change in circumstances"?  And why does it seem to be that we are more and more frequently trying to argue a change?

Considerations of change in circumstances

There are two situations where change in circumstances may be a more significant issue.  One is when there has already been a bail application to the superior court.  Subsequent applications may be made, and there is no law barring subsequent applications, but logically, for the court to reconsider, it is likely that the court will want to know what has changed to warrant reconsideration.  Sometimes the change may be passage of time, loss of witnesses, greater understanding of the weakness of the case, better housing for the defendant, or any one of a variety of things. For example, a defendant who sits in jail for months is in changed circumstances.  The factors which are used to secure a defendant's appearance are different from those which effectively sentence him to 9 months or a year without trial.  The demonstrated inability to make bail is a factor from which the court can determine that the bail which seemed reasonable at first may be unreasonably high.  Unchanged circumstances is a reason to choose not to reconsider bail, but it is not a bar to making an application.  

So the question of whether there is a change in circumstances should not deter you from making an application later in your case, but you should have some thoughts about why the court should change its original decision.  

See, e.g. People ex.rel. Rosenthal on behalf of Kolman v. Wolfson:

Changes in relevant facts, of course, may require reconsideration of a bail determination. If there be pertinent evidence which was not submitted to the bail-fixing court in the first instance, principles of orderly process dictate that a renewal of the application for the setting or reduction of bail be made on return to the trial court. (Cf. People ex rel. Llauget v. Cyrta, 35 A.D.2d 724, 315 N.Y.S.2d 246.) That court may not only be familiar with the factual elements of the case but may as well have already weighed pertinent judgmental considerations. Nothing would compel the anticipation that having declined relief on one set of facts, the trial court would automatically or routinely do so on an augmented or supplemented showing. In any event either the initial determination or that made on renewal would be subject in appropriate instances to scrutiny by writ of habeas corpus, thus preserving for that extraordinary procedural vehicle its traditional review function.

People ex rel. Rosenthal on Behalf of Kolman v. Wolfson, 48 N.Y.2d 230, 233, 397 N.E.2d 745, 746 (1979)

Second, as noted in Rosenthal on Behalf of Kolman v. Wolfson, there is a legal procedure in which one superior court may review the bail set by another superior court by writ of habeas corpus.  I think this is where a lot of the "change in circumstances" language is used, and has been conflated with initial bail determinations.

When reviewing a bail determination, the habeas corpus court is limited to the record that was before the nisi prius court, and evidence of a change in circumstances which may affect a bail determination must be submitted to the bail setting court for reconsideration. The decision of that court on the renewal of the bail application would then be subject to review by writ of habeas corpus (People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 422 N.Y.S.2d 55, 397 N.E.2d 745). The habeas corpus court erred by considering evidence of the bail status of a codefendant. “To receive new evidence would be both to frustrate the integrity of the review function and to undertake a de novo bail determination. This the habeas corpus court may not do (People ex rel. Rosenthal v. Wolfson,supra, 233, 422 N.Y.S.2d 55, 397 N.E.2d 745).

People ex rel. Taylor v. Meloni,96 A.D.2d 1149, 468 N.Y.S.2d 94 (4th Dept 1983). 

So the Fourth Department held that the bail setting court should be presented with changes in circumstances rather than the habeas court.  But it wasn't saying that bail could only be changed if there were a change in circumstances.  The habeas court will review the record of the trial court to determine if the bail setting violated constitutional standards or was excessive.

Habeas review

The Fourth Department has addressed the standards for habeas review:

A defendant who contends that a criminal court has unlawfully set bail or that the amount of bail is excessive may seek a writ of habeas corpus (see, CPLR 7010[b]; People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552). In determining the petition, the court may consider “whether the court [that set bail] abused its discretion pursuant to CPL 510.30 or violated a constitutional standard prohibiting excessive bail or its arbitrary refusal” (People ex rel. Robinson v. Campbell, 184 A.D.2d 988, 585 N.Y.S.2d 604; see also, People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232, 422 N.Y.S.2d 55, 397 N.E.2d 745; People ex rel. Hunt v. Warden of Riker's Is. Correctional Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676). Thus, the court did not act in excess of its jurisdiction in determining the issues raised in the petition for a writ of habeas corpus.

Vargason v. Brunetti, 241 A.D.2d 941, 661 N.Y.S.2d 345, 346 (4th Dept 1997)

For further discussion of the scope of review of pursuant to a writ of habeas corpus, see CPLR 70.10(b), as well as the commentaries and cases cited in that section.  I think this may be a tool we do not use often enough.  

So the next time a prosecutor argues that there must be a change in circumstances, and the judge looks at you quizzically, waiting for a description of that change, consider a polite suggestion that "change in circumstances" is not the standard of review for prior bail, the lack of opportunity at the original arraignment to obtain and present relevant facts, and the fact that the court has complete discretion to change the bail, citing the relevant statutes and cases.