Jail writ- J JOHN SEBASTIAN ATTORNEY

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Jail writ- J JOHN SEBASTIAN ATTORNEY

Jail writ- J JOHN SEBASTIAN ATTORNEY

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  • 1. SUPREME COURT OF THE STATE OF NEW YORKNEW YORK COUNTY: CRIMINAL TERM PARTxTHE PEOPLE OF THE STATE OF NEW YORKEx Rel: GARY GREENWALD, ESQ.on Behalf of : ANNA GRISTINA WRIT OF HABEAS CORPUSIND. NO.: 751/2012Petitioner,- against - ADJ. DATE AND PART:DORA B.SCHRIRO, CommissionerDepartment of Correction, PLACE OFINCARCERATION:RMSC 310-12-00212Respondent.- xTO THE PEOPLE OF THE STATE OF NEW YORK:TO THE COMMISSIONER:WE COMMAND YOU, that the body of ANNA GRISTINA, by youimprisoned and detained, as it is said together with the time andcause of such imprisonment and detention by whatsoever name thesaid ANNA GRISTINA is called or charged, be brought before theJustice presiding at a Criminal Term of the Supreme Court of theState of New York, Part - New York County at the CriminalCourthouse, 100 Centre Street, New York, New York, on day of2012, at 9:30 a.m. in the forenoon, to do and receive thatwhich shall then and there be considered concerning the said AnnaGristina, and have you then and there this Writ.ORDERED, that service of a copy of this Order together with
  • 2. the petition upon which it is based on the District Attorney onor before the day of 2012, shall be deemedsufficient service.WITNESS, HONORABLE - one of the Justices ofthe Supreme Court, State of New York this day of2012.The above Writ allowed this day ofJUSTICE OF THE SUPREME COURTOF THE STATE OF NEW YORK
  • 3. SUPREME COURT OF THE STATE OF NEW YORKNEW YORK COUNTY: CRIMINAL TERM PARTxTHE PEOPLE OF THE STATE OF NEW YORKEx Rel: GARY GREENWALD, ESQ.on Behalf of: ANNA GRISTINAPETITION IN SUPPORTOF WRIT OF HABEASCORPUSPetitioner, IND. NO.: 751/2012- against -DORA B. SCHRIRO, CommissionerDepartment of Correction,Respondent.- xThe Petition of GARY GREENWALD, ESQ., respectfully states:1. The relator is an attorney associated with GREENWALDLAW OFFICES, attorneys for the petitioner herein.2. This affirmation is made on information and belief,which is based upon inspection of the court and defense files,and discussions with prosecutors and persons connected with thiscase.3. This affirmation is made in support of this Writ ofHabeas Corpus alleging that the Petitioner/Defendant is beingdetained on excessive bail in violation of Article 1, Section 5of the New York State Constitution and the Eighth Amendment ofthe United States Constitution.4. Petitioner/defendant was arraigned on a single chargeof Promoting Prostitution in the Third Degree [PL 230.25(1)], inNew York State Supreme Court, Part 59, on February 23, 2012, andbail was set at $2,000,000 bond or $1,000,000 cash.5. The Petitioner/Defendant remains incarcerated and unable
  • 4. to post bail. Upon information and belief, the only hold on thePetitioner/Defendant is the bail set by the court at herarraignment, a sum which she has not posted and cannot post.6. The Petition/Defendant has no prior criminal record.She is married, has a family, children, long-time ties to her NewYork community, is not a flight risk, and is prepared to turn herpassport over to the District Attorneys Office.7. The instant offense of which the Petitioner/Defendant isaccused of violating is a single class D non-violent felony.8. Upon conviction, this offense does not require a term ofincarceration as part of sentence, and in fact, thePetitioner/Defendant is eligible for a non-incarceratorysentence. Should the Petitioner/Defendant be convicted of thisoffense, the maximum sentence she could face is 2 1/3 - 7 yearsincarceration.9. The Petitioner/Defendant has every intention ofpresenting herself before the Court to answer the instantcharges. If released, the Petitioner/Defendant would remain atlarge in accordance with conditions set by this Court.10. The Petitioner/Defendant submits that the Court whichset her bail abused its discretion pursuant to Criminal ProcedureLaw 510.30 and set an excessive bail in violation of both the NewYork State and United States Constitutions. The attachedMemorandum-of Law demonstrates this position.11. No other application for this relief has been made.WHEREFORE, your Petitioner/Defendant respectfully requeststhat the accompanying writ be granted and that an order be issued
  • 5. setting a reasonable bail.DATED: Chester, New York 2012GARY GREENWALD, ESQ.GREENWALD LAW OFFICES99 Brookside AveChester, NY 10918845-469-4900
  • 6. MEMORANDUM - OF- LAWIN SUPPORT OF THE INSTANT WRIT OF HABEAS CORPUSSEEKING REDUCTION OF THE PETITIONER/DEFENDANTS BAILIt is without question that the scope of collateral reviewby the court hearing habeas corpus petitions concerning excessivebail is narrow and concerns only whether the court which set bailabused its discretion pursuant to N.Y. Criminal Procedure Law§510.30, and violated the constitutional standard prohibitingexcessive bail. See, People ex rel. Hunt v. Warden of RikersIsland, 161 AD2d 475 [1st Dept 1990], appeal denied, 76 NY2d 703[1990]; see also, People ex rel. Robinson v. Campbell, 184 AD2d988 [3rd Dept 1992].In determining whether or not the fixation of bail violatesconstitutional or statutory standards inhibiting excessive bail,the habeas corpus court should consider relevant criteriaincluding, inter alia, the "nature of the offense, the penaltywhich may be imposed, the probability of the willing appearanceof the defendant or his flight to avoid punishment, the pecuniaryand social condition of defendant and his general reputation andcharacter, and the apparent nature and strength of the proof asbearing on the probability of his conviction." See, People exrel. Klein v. Krueger, 25 NY2d 497, 501 [1969]. But inconducting such a review, the habeas corpus court may not, absentextraordinary circumstances, consider evidence not before theoriginal bail-fixating court. People ex rel. Rosenthal v.Wolfson, 48 N.Y.2d 230 [1979]. The scope of inquiry is only asto whether the bail setting court abused its discretion by
  • 7. setting said bail without reason or for reasons insufficient inlaw. See, People ex rel. Klein v. Krueger, suprai see also,People ex rel. Weisenfeld v. Warden, New York Detention Facility,37 N.Y.2d 760 [1975]. It is of paramount importance that thebail was the product of discretion which rested upon a rationalbasis. See, People ex rel. Klein v. Krueger, supra. There mustbe a sufficient showing on the record to support the decision andthe exercise of discretion must be upon a rational considerationof the criteria cited in CPL 510.30(2). Unless the record setsforth the factors utilized in determining the amount of bail orthe habeas corpus court has made specific findings in itsdecision fixing bail, the exercise of discretion must be deemedarbitrary.Moreover, the "presumption of innocence accorded everycriminal defendant militates strongly against incarceration inadvance of a determination as to guilt. For this reason bail maynot be set in an amount greater than necessary to ensure courtattendance." See, People ex rel. Benton v. Warden, N.Y. CityHouse of Detention for Men, 118 A.D.2d 443, 445 [1st Dept 1986]see also, State ex rel. Barrett on behalf of Galanis v. Koehler,132 AD2d 491 [1st Dept 1987], appeal dismissed, 70 NY2d 951[1988]. "The statutory criteria of CPL 510.30(2) are used togauge the only matter of legitimate concern in such a bailhearing, viz., whether any bail or the amount fixed was necessaryto insure the defendants future appearance in court." See,People ex rel. Masselli v. Levy, 126 AD2d 501 [1st Dept 1987].The seriousness of the crime charged and severity of the
  • 8. possible punishment are, of course, relevant considerations, butonly to the extent that they demonstrate a defendants propensityto flee. The statute is clear in this regard when it commandsthat "the court must consider the kind and degree of control orrestriction that is necessary to secure his court attendance.nSee, CPL§ 510.30(2) (a) (emphasis added).The nature of the case against the defendant and possiblepunishment are only two of the numerous factors to be weighed inmaking the ultimate determination required by CPL§ 510.30(2).Other factors include character, reputation, habits and mentalcondition, employment and financial resources, fammily ties andlength of time at a residence, criminal record, juveniledelinquency record, record of responding to court appearanceswhen required, the weight of evidence against the defendant andprobability of conviction. The court is required by the statueto examine and balance all of these factors delineated in CPL510.30(2), keeping in mind that the legitimate objective of thebail system is to secure the attendance in court of a defendant.Petitioner/Defendant notes the recent New York State Courtof Appeals decision, People ex rel. McManus v. Horn, 2012 WL952409, March 22, 2012 , wherein the Court held that,"[p]roviding flexible bail alternatives to pretrial detainees-who are presumptively innocent until proven guilty beyond areasonable doubt-is consistent with the underlying purpose ofarticle 520. The legislation [CPL Article 520] wasintended to reform the restrictive bail scheme that existed inthe former Code of criminal Procedure in order to improve theavailability
  • 9. of pretrial releasen.
  • 10. In the case at bar, the bail set of $2,000,000 bond or$1,000,000 cash is excessive in light of how the factors setforth in CPL 510.30[2] relate to the Petitioner/Defendant. ThePetitioner/Defendant is a 44 year old married woman, a motherwith no criminal record. Her character, reputation, habits, andmental condition, aside from the instant case, have never beencalled into question. She has family ties, and has been aresident of her Orange County, NY community for more than tenyears. While the Petitioner/ Defendant has been trying to starta legitimate on-line dating service, and her husband is a realestate agent, they are not a family of means. ThePetitioner/Defendant has no ability to raise the amount of moneyrequired to meet the bail that has been set. In fact, it is sodisproportionate to the financial resources of thePetitioner/Defendant that it is tantamount to remand.Furthermore, the bail as has been set is completelyinappropriate for a single count of a low- level non-violent Dfelony, a felony which permits a probationary sentence should aconviction be attained. Although the People submit that theyhave compelling evidence of the Petitioner/Defendants guilt,that does not change the fact that the instant offense is a non-violent felony which does not require a sentence of jail time.The Petitioner/Defendant submits that the court which setbail in this case abused its discretion in setting such anexcessive bail. It appears that the only consideration of thecourt was that the Petitioner/Defendant may be a flight risk,based upon an allegation by the People that many years ago thePetitioner/Defendant went to Canada when the police were possibly
  • 11. investigating her. Besides being an unproven and unsupportedallegation, the Petitioner/Defendant asserts that at the timewhen the Petitioner/Defendant did indeed travel to Canada, shehad not been arrested or charged with any crime, nor was there awarrant issued for her arrest. Furthermore, she was neversubsequently charged with absconding, or any crime relating toher travels.The Court which set the bail did not have a rational basisfor setting it at such a high amount, as the reason given by theCourt for setting it was clearly insufficient in the eyes of thelaw, and an abuse of discretion. Especially in light of all ofthe other CPL 510.30(2) factors which are favorable to thePetitioner/Defendant, which strongly support a reasonable bailhaving been set, and which the bail setting court apparently didnot weigh. For the Court could have, and should have, set a muchlower bail which, considering the Petitioner/Defendantsfinancial situation, and with the Petitioner/Defendantsurrendering her passport to the New York County DistrictAttorneys Office, would have guaranteed all of her appearancesin Court.The Petitioner/Defendant is aware of the Peoplesallegation that the Petitioner/Defendant generated millions ofdollars over the years by promoting prostitution. However, thePetitioner/Defendant submits that if that position had any truthbehind it, the Petitioner/Defendant would clearly have been ableto post her bail to attain her release. That is obviously notthe case. For bail to have been set in the millions for a Dfelony, on a defendant with no prior record and who enjoys the
  • 12. presumption of innocence, is outrageous.Accordingly, the Petitioner/Defendant prays that this Courtgrant this Writ of Habeas Corpus and issue an order setting areasonable bail in this case.DATED: Chester, New York----- 2012GARY GREENWALD, ESQ.GREENWALD LAW OFFICES99 Brookside AveChester, NY 10918845-469-4900