25 N.Y.2d 497 | NY | 1969
Lead Opinion
This appeal requires a review of this court’s ■holding and reasoning in People ex rel. Shapiro v. Keeper of City Prison (290 N. Y. 393). The issue is the scope of review in a habeas corpus court of the action of a court at nisi prius in a criminal matter denying or fixing the amount of bail before a
Relator Klein had been held without bail by the County Court following his apprehension under a 1969 indictment for a 1967 robbery, kidnapping, and other related crimes, charging him and his alleged conspirators with a particularly serious and involved offense. He had a criminal record and there was reason to believe that the victim of the crime and potential witnesses in the case might be in danger of intimidation or injury. The victim had been a reluctant complainant. After the denial of bail, which was not, as noted, an appealable matter, relator instituted a habeas corpus proceeding in Supreme Court. The writ was dismissed, but on appeal to the Appellate Division that court reversed and allowed bail in the amount of $125,000, holding that there had been an abuse of discretion.
It is concluded that the order of the Appellate Division should be affirmed and that in a habeas corpus proceeding the court may review the action of the denial of bail or the fixing of the amount of bail if it appears that the constitutional or statutory standards inhibiting excessive bail or the arbitrary refusal of bail are violated.
Although the court has previously held that the State constitutional guarantee against excessive bail does not require that bail be given as of right in all noncapital cases (People ex rel. Fraser v. Britt, 289 N. Y. 614, discussed in People ex rel. Shapiro v. Keeper of City Prison, supra, at p. 397) the guarantee certainly requires that legislative provisions must, to satisfy constitutional limitations, be related to the proper pur
The statutory bail system provides in its several categories both for mandated disposition of bail applications and the exercise of a broad discretion. Under the Code of Criminal Procedure, bail is available as of right in cases of misdemeanor, and as a matter of discretion in felony cases (Code Crim. Pro., § 553). Bail for certain serious crimes may be granted .only by a Justice of the Supreme Court or a Judge of the County Court where the defendant is charged (Code Crim. Pro., §§ 552, 55-7). The effective right to bail after conviction is markedly limited, not only because it is prohibited in the cases of certain recidivists (Code Crim. Pro., § 555, subd. 2; see People v. Wirtschafter, 305 N. Y. 515, 520-521), but also because review of discretion in the denial of a certificate of reasonable doubt is unobtainable (see People ex rel. Epton v. Nenna, 25 A D 2d 518, mot. for Iv. to app. withdrawn 17 N Y 2d 422).
It is not very helpful to attempt to categorize the cases or analyze the extent of reviewability under the familiar rubric of abuse of discretion. The term in this particular area of law is just too elastic and f ollows too easily upon a conclusion previously reached. It has been said that the discretion is “judicial,” not “pure or unfettered” and that “ [t]he case calls for a fact determination, not a mere fiat ” (People ex rel. Lobell v. McDonnell, 296 N. Y. 109, 111). It has also been said that discretionary exercise must not be “ improvident ” (Matter of Jacobsen, 278 App. Div. 945).
To be sure, the determination of the bail-fixing court will not be overturned unless there is the ‘ ‘ invasion of constitutional right,” and not a “ difference of opinion ” (People ex rel. Rao v. Adams, 296 N. Y. 231, 234; People ex rel. Richards v. Warden of City Prison, 277 App. Div. 87, 89). The court held ip the Shapiro case {supra), that a habeas corpus court in a collateral proceeding may not review the action of the criminal court as
Nevertheless, although the reasoning in the Shapiro case forbids properly “ a backhanded way and under other forms * * * the equivalent of an appeal, as to matters of discretion as well as matters of law ” (290 N. Y;, at p. 399), the court also recognized .that a matter of law arises on the issue of excessive bail. Indeed, there is a constitutional issue of law that cannot be blinked by saying that an exercise of discretion is involved. In the first place, constitutional limitations are present, as is the constitutional access to habeas corpus (N. Y. Const., art. I, § 4), and these perforce override any statutory distributions of judicial power or appealability. Secondly, even where an exercise of discretion is operative there must, as a matter of law, be underlying facts which will support that exercise either in denying bail or fixing the amount of bail.
Factors to be considered in the discretionary denial or granting of bail include: "The nature of the offense, the penalty which may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction ” (People ex rel. Gonzalez v. Warden, 21 N Y 2d 18, 25, cert. den. 390 U. S. 973, citing People ex rel. Lobell v. McDonnell, supra, at p. 111 and Stack v. Boyle, 342 U. S. 1, 8 [Jackson, J., concurring]).
It is for this reason that the Appellate Division properly fixed bail instead of allowing the denial of bail, and yet it is by reason of the other elements in the case that it fixed the bail as high as it did, and, as a matter of discretion, could have fixed it even higher. There was ample suggestion that relator was in a position to put up high bail and the nature of the crime, relator’s background, and the other information available, all required special precautions for a bail-fixing court to consider. The Appellate Division was entitled to exercise this discretion because the nisi prius court had denied bail, under the circumstances, for impermissible reasons.
At the risk of some repetition but with the hope of making the demarcations clearer the following should be said.
Within constitutional limits the nisi prius criminal court has the sole nonreviewable discretion to fix or deny bail. That is the teaching of the Shapiro case and that teaching is reaffirmed. A habeas corpus court is, however, functioning under constitutional mandates both as to availability of the proceeding, collateral though it be, and as to the limitations on excessive bail. That court may not substitute itself for the criminal court; and the Appellate Division will be, as the Appellate Division was in the Shapiro case itself, diligent to prevent improper co-ordinate review and court-shopping by defendants in criminal matters. Only if the criminal court’s bail action is not supportable may the habeas' corpus court modify or undo the criminal court’s
Finally, no procedural or jurisdictional problem intervenes if only because the constitutional mandates both as to habeas corpus and bail are paramount and controlling over any statutory distribution of judicial power, appealability, and review-ability. With the issue thus analyzed the Shapiro case is not inconsistent, and is, indeed, supportive of the views expressed.
Accordingly, the order of the Appellate Division should be affirmed.
. Although the United States Supreme Court has not applied the bail guarantee of the Eighth Amendment to the States as it has the prohibition of cruel and unusual punishment (Robinson v. California, 370 U. S. 660) there is authority in the lower courts for such a conclusion (see Pilkinton v. Circuit Court of Howell County, Missouri, 324 F. 2d 45 [8th Cir.]; compare United States ex rel. Hyde v. McMann, 263 F. 2d 940, 943 [2d Cir.], cert. den. sub nom. United States ex rel. Hyde v. La Vallee, 360 U. S. 937, with United States ex rel. Covington v. Coparo, 297 F. Supp. 203 [S.D.N.Y., 1969; Weineeld, J.]).
. But see, for an interesting variation involving the Supreme Court’s power in the City of New York to review the fixing of bail by a committing Magistrate (Code Crim. Pro., § 22, subd. 8, as amd. by L. 1962, ch. 692, § 3).
Dissenting Opinion
The sole issue presented on this writ of habeas corpus is whether the order of the trial court denying bail to the petitioner was an abuse of discretion.
The matter of admitting a criminal defendant to bail in a felony case has been specifically left to the discretion of the Trial Judge by statute. (Code Crim. Pro., § 553.)
Since granting or denying bail is discretionary, when it is reviewed collaterally on a writ of habeas corpus the only question before the court is whether the Trial Judge abused his discretion. (CPLR 7010; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393.) In properly exercising his discretion as to bail, the Trial Judge must take into account factual matters such as the nature of the offense, the penalty which may be imposed upon conviction, the probability of the willing appearance of the defendant or of his flight to avoid punishment, the pecuniary and social condition of the defendant, his general reputation and character, and the apparent nature and strength of the proof bearing on the probability of his conviction. (People ex rel. Lobell v. McDonnell, 296 N. Y. 109; People ex rel. Gonzalez v. Warden, 21 N Y 2d 18.) A denial of bail which is not based upon these factors is an abuse of discretion and, perforce, a violation of the constitutional prohibition against excessive bail. However, if the Trial judge has no.t abused his discretion in fixing or denying bail, it may not be said that the defendant has been unconstitutionally deprived of bail.
Clearly, in the case before us, the Trial Judge gave several substantial reasons for denying the petitioner bail, to wit: the seriousness of the charges (kidnapping, robbery, grand larceny, possession of a loaded revolver, possession of a firearm silencer, burglary and conspiracy); the petitioner’s two prior felony convictions; the possible penalty of life imprisonment; a possibility of flight to avoid such if found guilty; and the petitioner’s bad reputation in the community.
The majority’s claim that the Trial Judge based his decision upon a rumored threat to witnesses is simply not true. The Judge did not predicate his decision on this rumored threat, but rather specifically recited the reasons noted above as the basis for denial of bail. It is difficult to conceive of a situation upon which the basis of the decision is more clearly delineated. Yet the majority completely disregards the stated ratio decidendi of the trial court.
The role and the considerations to be made by the court on the hearing of the writ was fully stated by this court in Shapiro, where we said: “ It does not follow, however, that the court which entertained the writ could exercise an independent discretion as to bail. The Legislature which forbade any appeal from an order denying bail, did not intend, in a backhanded way and under other forms, to permit the equivalent of an appeal, as to matters of discretion as well as matters of law. The traditional status and purpose of a writ of habeas corpus can. be maintained in cases like this without making it a device' for obtaining a new trial of a discretionary matter. If this petition for habeas corpus was, as clearly appears, an effort to get such a new trial, then it had to be denied, under section
Obviously, we have expressed a concern that there not be successive applications to different Judges for the fixation of bail on the same facts. To permit otherwise would merely amount to a review by one Judge of the discretionary actions of another which would be contrary to section 566 of the Oode of Criminal Procedure.
Upon the record before us, I find that the habeas corpus Judge, in denying the writ, properly found there was no abuse of discretion by the Trial Judge in denying the petitioner bail. Therefore, I would reverse the order of the Appellate Division and reinstate the judgment of Special Term.
Chief Judge Fuld and Judges Burke, Bbrqan and Gibson concur with Judge Breitel; Judge Jasen dissents and votes to reverse in a separate opinion in which Judge Soilirh concurs.
Order affirmed, without costs.
