People ex rel. Lazer v. Warden of New York County Men's House of Detention

173 A.D.2d 425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1991
• Status: Published

Opinions

Judgments, Supreme Court, New York County (Herbert J. Adlerberg, J.), entered April 4, 1991, denying petitioners’ petitions, ex parte, for a writ of habeas corpus fixing a reasonable bail, reversed, on the law and on the facts and in the exercise of discretion, without costs or disbursements, the petitions granted and bail set in the case of petitioner Esposito in the sum of $250,000, insurance company bail bond or cash, subject to the following conditions: that he surrender his passport to the court and remain in New York pending disposition of the pending criminal charge (indictment No. 21059-91) and execute a waiver of extradition agreement in a form acceptable to the trial court; in the case of petitioner Palmieri, bail reduced from $150,000 to the sum of $75,000, insurance company bail bond or cash, subject to said petitioner’s execution of a waiver of extradition agreement, as aforesaid; in the event petitioners fail to comply with the above conditions, judgments affirmed, without costs or disbursements.

Petitioners have been incarcerated continuously since their arrest on January 31, 1991 on a charge of attempted grand larceny in the first degree (Penal Law §§ 110.00, 155.42), a class C felony, for their alleged complicity in an attempt to sell certain promissory notes in an amount in excess of $8,000,000, issued by an agency of the Indonesian Government, to an undercover detective. The People allege that the detective was repeatedly assured by petitioners that the notes had, in every past instance, been honored by the Indonesian Government, when, in fact, as they both knew, the notes had never been so honored. After review of all the material submitted to the bail-setting court, we are of the view that petitioner Esposito, presently held in remand without bail, is entitled to bail in the sum indicated as long as the conditions imposed are met. Given the nature of the charge and the range of punishment on conviction, we believe that such a bail is sufficient to assure said petitioner’s presence in the jurisdiction for trial. In the case of petitioner Palmieri, who played a lesser role in the negotiations, we believe that a bail, as reduced herein together with the condition attached, is sufficient to assure his return and availability for trial. In so holding, we are not undertaking a de novo bail determination (see, People ex rel. Rosenthal v Wolfson, 48 NY2d 230) or examining the bail question afresh (see, People ex rel. Klein v Krueger, 25 NY2d 497, 501), as the dissent indicated. Rather, we conclude, on the basis of the record which was before the bail-fixing court, that the court’s ruling constituted an improvident exercise of discretion. (See, supra, at 500-501.)

With respect to the dissent’s concerns about petitioners’ ties to the PLO and its resources, it should be noted that there is not even a suggestion in the record of any such relationship in the case of petitioner Palmieri. In fact, his resources are such that he cannot make the currently fixed bail of $150,000. The relationship between petitioner Esposito and Hassan Zubaidi, reputedly "a PLO financier and alleged arms dealer”, is, in essence, comprehended by the underlying charge and taken into account in the bail set herein and conditions attached. In accordance with the bail criteria set forth in CPL 510.30 (2) (a), it is entitled to no other consideration. We note, in passing, that the clerk’s work sheet in connection with the indictment of Hubert Thierry, a French national accused in an earlier indictment of the same crime as is charged here for identical acts, indicates that Thierry was granted bail. In that prosecution, he was alleged by the People to be Zubaidi’s attorney, business consultant and "front man.” After conviction he was sentenced to five years probation. Nor did anyone . else in the case receive a sentence of incarceration. Concur— Murphy, P. J., Sullivan and Carro, JJ.