40 Misc. 2d 943 | N.Y. Sup. Ct. | 1963
It appears from the relator’s brief that he was detained in City Prison from September 7, 1963 until October 3, 1963 upon a commitment entered in the Criminal Court of the City of New York based upon an affidavit made by two police officers purporting to comply with the provisions of section 55 of the New York City Criminal Court Act. On five separate appearances for hearing, the Criminal Court denied bail. He contends that he comes within the purview of section 552 of the Code of Criminal Procedure and urges that the act of the Legislature in removing from the Magistrate his traditional power to set bail for an appearance before him is a denial of due process of law within the provisions of section 6 of article I of the New York State Constitution and the Fourteenth Amendment of the Federal Constitution. It appears further that on arraignment, bail was not fixed since relator is charged with a felony and is a convicted felon. However, on October 6, 1963, on his application at Part XXX of the Supreme Court bail was fixed at $5,000.
Absolute right to bail in felony cases is nonexistent in this State and in such cases whether bail will be fixed and in what amount is for the State to decide (United States ex rel. Hyde v. McMann, 263 F. 2d 940, cert. den. 360 U. S. 937). Since an absolute right to bail in this instance does not exist, denial of bail is not a violation of a constitutional right. Nor is the Criminal Court required to advise the defendant of any existing right to bail. The narrow question presented is whether the power to exercise discretion in holding a defendant to bail in a particular case is wrongfully taken from the Criminal Court of the City of New York. The power of exercise of discretion has not been removed, nor the benefit of its existence
The powers of the Criminal Court otherwise are not affected or diminished by the fact that such limited right to apply for fixation of bail is lodged in another court. Relator’s discharge may not emanate from this petition, but rather by posting the bail already fixed. Relator argues further that the extent of the judicial power is measured by the extent to which a court may deprive a person of liberty. However, the judicial power in this instance may be measured not alone by the power of the Criminal Court of the City of New York, but by the judicial power residing in the Supreme Court and in this connection the provisions of section 55 of the New York City Criminal Court Act and of section 552 of the Code of Criminal Procedure must be read together. Relator relies on People v. Hevern (127 Misc. 141) where the court was concerned with section 552-a of the Code of Criminal Procedure involving the matter of fingerprinting. Here, however, fingerprinting is not involved and there is no claim that the defendant has no prior felony record. Otherwise, the effect of the Severn case is not in accord with People ex rel. Shapiro v. Keeper of City Prison (290 N. Y. 393, 397-398) where the court stated: “ By statute in this State, admission to bail before conviction is a matter of right in misdemeanor cases and a matter of discretion in all other cases. # * * Most of the states have constitutional provisions making bail a matter of right in all except capital cases * * * but in the States like New York, whose Constitutions follow the Federal model in this respect (see United States Constitution, 8th Amendt.) by prohibiting ‘ excessive bail, ’ such a constitutional declaration as to bail accords no accused any right to bail, but serves only to forbid excessiveness.”