SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART

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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, CommissionerDepartment of Correction, PLACE OF

INCARCERATION: RMSC 310-12-00212

Respondent.

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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

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

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: CRIMINAL TERM PART

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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.

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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

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

setting a reasonable bail.

DATED: Chester, New York' 2012

GARY GREENWALD, ESQ. GREENWALD LAW OFFICES99 Brookside AveChester, NY 10918845-469-4900

MEMORANDUM - OF- LAWIN 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

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

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

of pretrial releasen.

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

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

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 OFFICES99 Brookside AveChester, NY 10918845-469-4900