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  1. 1. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART x THE PEOPLE OF THE STATE OF NEW YORK Ex Rel: GARY GREENWALD, ESQ. on Behalf of : ANNA GRISTINA WRIT OF HABEAS CORPUS IND. NO.: 751/2012 Petitioner, - against - ADJ. DATE AND PART: DORA B.SCHRIRO, Commissioner Department of Correction, PLACE OF INCARCERATION: RMSC 310-12-00212 Respondent. - x TO THE PEOPLE OF THE STATE OF NEW YORK: TO THE COMMISSIONER: WE COMMAND YOU, that the body of ANNA GRISTINA, by you imprisoned and detained, as it is said together with the time and cause of such imprisonment and detention by whatsoever name the said ANNA GRISTINA is called or charged, be brought before the Justice presiding at a Criminal Term of the Supreme Court of the State of New York, Part -' New York County at the Criminal Courthouse, 100 Centre Street, New York, New York, on day of 2012, at 9:30 a.m. in the forenoon, to do and receive that which shall then and there be considered concerning the said Anna Gristina, and have you then and there this Writ. ORDERED, that service of a copy of this Order together with
  2. 2. the petition upon which it is based on the District Attorney on or before the day of ' 2012, shall be deemed sufficient service. WITNESS, HONORABLE -' one of the Justices of the Supreme Court, State of New York this day of 2012. The above Writ allowed this day of JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK
  3. 3. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART x THE PEOPLE OF THE STATE OF NEW YORK Ex Rel: GARY GREENWALD, ESQ. on Behalf of: ANNA GRISTINA PETITION IN SUPPORT OF WRIT OF HABEAS CORPUS Petitioner, IND. NO.: 751/2012 - against - DORA B. SCHRIRO, Commissioner Department of Correction, Respondent. - x The Petition of GARY GREENWALD, ESQ., respectfully states: 1. The relator is an attorney associated with GREENWALD LAW 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 this case. 3. This affirmation is made in support of this Writ of Habeas Corpus alleging that the Petitioner/Defendant is being detained on excessive bail in violation of Article 1, Section 5 of the New York State Constitution and the Eighth Amendment of the United States Constitution. 4. Petitioner/defendant was arraigned on a single charge of Promoting Prostitution in the Third Degree [PL 230.25(1)], in New York State Supreme Court, Part 59, on February 23, 2012, and bail was set at $2,000,000 bond or $1,000,000 cash. 5. The Petitioner/Defendant remains incarcerated and unable
  4. 4. to post bail. Upon information and belief, the only hold on the Petitioner/Defendant is the bail set by the court at her arraignment, 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 New York community, is not a flight risk, and is prepared to turn her passport over to the District Attorney's Office. 7. The instant offense of which the Petitioner/Defendant is accused of violating is a single class D non-violent felony. 8. Upon conviction, this offense does not require a term of incarceration as part of sentence, and in fact, the Petitioner/Defendant is eligible for a non-incarceratory sentence. Should the Petitioner/Defendant be convicted of this offense, the maximum sentence she could face is 2 1/3 - 7 years incarceration. 9. The Petitioner/Defendant has every intention of presenting herself before the Court to answer the instant charges. If released, the Petitioner/Defendant would remain at large in accordance with conditions set by this Court. 10. The Petitioner/Defendant submits that the Court which set her bail abused its discretion pursuant to Criminal Procedure Law 510.30 and set an excessive bail in violation of both the New York State and United States Constitutions. The attached Memorandum-of Law demonstrates this position. 11. No other application for this relief has been made. WHEREFORE, your Petitioner/Defendant respectfully requests that the accompanying writ be granted and that an order be issued
  5. 5. setting a reasonable bail. DATED: Chester, New York ' 2012 GARY GREENWALD, ESQ. GREENWALD LAW OFFICES 99 Brookside Ave Chester, NY 10918 845-469-4900
  6. 6. MEMORANDUM - OF- LAW IN SUPPORT OF THE INSTANT WRIT OF HABEAS CORPUS SEEKING REDUCTION OF THE PETITIONER/DEFENDANT'S BAIL It is without question that the scope of collateral review by the court hearing habeas corpus petitions concerning excessive bail is narrow and concerns only whether the court which set bail abused its discretion pursuant to N.Y. Criminal Procedure Law§ 510.30, and violated the constitutional standard prohibiting excessive bail. See, People ex rel. Hunt v. Warden of Riker's Island, 161 AD2d 475 [1st Dept 1990], appeal denied, 76 NY2d 703 [1990]; see also, People ex rel. Robinson v. Campbell, 184 AD2d 988 [3rd Dept 1992]. In determining whether or not the fixation of bail violates constitutional or statutory standards inhibiting excessive bail, the habeas corpus court should consider relevant criteria including, inter alia, 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." See, People ex rel. Klein v. Krueger, 25 NY2d 497, 501 [1969]. But in conducting such a review, the habeas corpus court may not, absent extraordinary circumstances, consider evidence not before the original bail-fixating court. People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230 [1979]. The scope of inquiry is only as to whether the bail setting court abused its discretion by
  7. 7. setting said bail without reason or for reasons insufficient in law. 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 the bail was the product of discretion which rested upon a rational basis. See, People ex rel. Klein v. Krueger, supra. There must be a sufficient showing on the record to support the decision and the exercise of discretion must be upon a rational consideration of the criteria cited in CPL 510.30(2). Unless the record sets forth the factors utilized in determining the amount of bail or the habeas corpus court has made specific findings in its decision fixing bail, the exercise of discretion must be deemed arbitrary. Moreover, the "presumption of innocence accorded every criminal defendant militates strongly against incarceration in advance of a determination as to guilt. For this reason bail may not be set in an amount greater than necessary to ensure court attendance." See, People ex rel. Benton v. Warden, N.Y. City House 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 to gauge the only matter of legitimate concern in such a bail hearing, viz., whether any bail or the amount fixed was necessary to insure the defendant's 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. 8. possible punishment are, of course, relevant considerations, but only to the extent that they demonstrate a defendant's propensity to flee. The statute is clear in this regard when it commands that "the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance.n See, CPL§ 510.30(2) (a) (emphasis added). The nature of the case against the defendant and possible punishment are only two of the numerous factors to be weighed in making the ultimate determination required by CPL§ 510.30(2). Other factors include character, reputation, habits and mental condition, employment and financial resources, fammily ties and length of time at a residence, criminal record, juvenile delinquency record, record of responding to court appearances when required, the weight of evidence against the defendant and probability of conviction. The court is required by the statue to examine and balance all of these factors delineated in CPL 510.30(2), keeping in mind that the legitimate objective of the bail system is to secure the attendance in court of a defendant. Petitioner/Defendant notes the recent New York State Court of Appeals decision, People ex rel. McManus v. Horn, 2012 WL 952409, March 22, 2012 , wherein the Court held that, "[p]roviding flexible bail alternatives to pretrial detainees- who are presumptively innocent until proven guilty beyond a reasonable doubt-is consistent with the underlying purpose of article 520. The legislation [CPL Article 520] was intended to reform the restrictive bail scheme that existed in the former Code of criminal Procedure in order to improve the availability
  9. 9. of pretrial releasen.
  10. 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 set forth in CPL 510.30[2] relate to the Petitioner/Defendant. The Petitioner/Defendant is a 44 year old married woman, a mother with no criminal record. Her character, reputation, habits, and mental condition, aside from the instant case, have never been called into question. She has family ties, and has been a resident of her Orange County, NY community for more than ten years. While the Petitioner/ Defendant has been trying to start a legitimate on-line dating service, and her husband is a real estate agent, they are not a family of means. The Petitioner/Defendant has no ability to raise the amount of money required to meet the bail that has been set. In fact, it is so disproportionate to the financial resources of the Petitioner/Defendant that it is tantamount to remand. Furthermore, the bail as has been set is completely inappropriate for a single count of a low- level non-violent D felony, a felony which permits a probationary sentence should a conviction be attained. Although the People submit that they have compelling evidence of the Petitioner/Defendant's 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 set bail in this case abused its discretion in setting such an excessive bail. It appears that the only consideration of the court was that the Petitioner/Defendant may be a flight risk, based upon an allegation by the People that many years ago the Petitioner/Defendant went to Canada when the police were possibly
  11. 11. investigating her. Besides being an unproven and unsupported allegation, the Petitioner/Defendant asserts that at the time when the Petitioner/Defendant did indeed travel to Canada, she had not been arrested or charged with any crime, nor was there a warrant issued for her arrest. Furthermore, she was never subsequently charged with absconding, or any crime relating to her travels. The Court which set the bail did not have a rational basis for setting it at such a high amount, as the reason given by the Court for setting it was clearly insufficient in the eyes of the law, and an abuse of discretion. Especially in light of all of the other CPL 510.30(2) factors which are favorable to the Petitioner/Defendant, which strongly support a reasonable bail having been set, and which the bail setting court apparently did not weigh. For the Court could have, and should have, set a much lower bail which, considering the Petitioner/Defendant's financial situation, and with the Petitioner/Defendant surrendering her passport to the New York County District Attorney's Office, would have guaranteed all of her appearances in Court. The Petitioner/Defendant is aware of the People's allegation that the Petitioner/Defendant generated millions of dollars over the years by promoting prostitution. However, the Petitioner/Defendant submits that if that position had any truth behind it, the Petitioner/Defendant would clearly have been able to post her bail to attain her release. That is obviously not the case. For bail to have been set in the millions for a D felony, on a defendant with no prior record and who enjoys the
  12. 12. presumption of innocence, is outrageous. Accordingly, the Petitioner/Defendant prays that this Court grant this Writ of Habeas Corpus and issue an order setting a reasonable bail in this case. DATED: Chester, New York -----' 2012 GARY GREENWALD, ESQ. GREENWALD LAW OFFICES 99 Brookside Ave Chester, NY 10918 845-469-4900