PEOPLE v. BANYAI (2023)

The defendant, Daniel Banyai, moved by Order to Show Cause signed March 3, 2023 for an order staying the Judgment of Conviction issued by the Hon. Scott L. Volkman, City Court Judge, on March 1, 2023, and in particular, that portion of the sentence which included 60 days of incarceration in the Dutchess County Jail. Judge Volkman also sentenced Defendant to three years of probation, and a final full Order of Protection with a complete stay-away provision and total prohibition from communication including through third parties, as well as imposing a DNA order, a DNA fee of $50.00, and a mandatory surcharge and crime victim assistance fee of $200.00.

This court considered the affirmation in support, the oral argument of Defendant's counsel, Anthony Cillis, Esq. and of the Assistant District Attorney, Brittany Kessel, on the return of the Order to Show Cause, the following business day, March 6, 2023. The court has also considered the pre-sentence investigation report which the People's counsel handed to the court on March 6, 2023, as well as the sentencing minutes which were provided to the court on March 7, 2023.

The violation of the Order of Protection issued out of the Dutchess County Family Court in favor of the victim, Ms. Baker, occurred more than three years ago, on November 11, 2019. According to the sentencing minutes by Judge Volkman, there was substantial delay as a result of the COVID-19 pandemic. Jury selection occurred on January 17, 2023. The trial proceeded with the jury returning a guilty verdict at the end of the day on January 18, 2023. The jury convicted Defendant of Criminal Contempt in the 2nd Degree for violating the Order of Protection.

It is undisputed that there were no allegations in the record of a violation of the Order of Protection other than that which occurred on November 11, 2019 and which consisted of seven electronic messages being sent to a non-profit organization of which the victim was president. The messages inquired about the victim including as to her status at the company. This court was not provided with information as to the specific contents of those Facebook messages.

The recommendation contained in the pre-sentence investigation report was that Defendant be sentenced to probation supervision for a period of three years, a long term order of protection, and submission of a DNA sample for inclusion in the New York State Data Bank. It was noted that as a convicted felon (Defendant was previously convicted of two fraud related charges in 2006 and unlawful possession of a weapon in 2019), Defendant is prohibited from purchasing or possessing firearms.

Pursuant to CPL § 460.50 this court has the authority to stay or suspend execution of a sentence pending determination of an appeal where Defendant has taken appeal to an intermediate Appellate Court, as Defendant has here to the Appellate Term. Defendant asks to be released on his own recognizance or upon the posting of bail suggesting bail in the sum of $1,000.00. Turning to Penal Law § 510.30 the court must consider numerous factors in determining whether to grant a stay of the sentence pending appeal. The considerations include, but are not limited to, the defendant's activities and history, the current charges, the criminal convictions of record, the defendant's record with respect to court appearances, the defendant's individual financial circumstances and ability to post bail, whether there has been a violation of an order of protection, the defendant's history of use or possession of a firearm, whether the charge/conviction is alleged to have caused serious harm to an individual, the merit or lack of merit of the appeal, and the likelihood of ultimate reversal of the judgment.

In this case, the defendant does have a history of prior convictions, the victim claims his conduct had a severe detrimental impact on her life, he has violated an order of protection, he was convicted of unlawful possession of a firearm, yet it is undisputed that he has appeared at every scheduled court date, and that there have been no additional allegations of any violations of the order of protection between November 11 of 2019 and the present. As to the merit or lack of merit of the appeal, the court finds that the likelihood or unlikelihood of ultimate reversal of the sentence of incarceration weighs so evenly that the court cannot deny the application on that basis.

Based upon the foregoing, it is hereby

ORDERED that the defendant's motion is partly granted. Defendant is subject to the sentence imposed by Judge Volkman pending a determination on appeal except that upon the posting of $1,000.00 bail the sentence of 60 days incarceration is suspended pending a determination of the appeal. The defendant is advised that this release is conditional and that the court may revoke the order of release and may be authorized to commit the defendant to the custody of the Sheriff if Defendant is rearrested or if he fails to appear at any scheduled court date.

The foregoing constitutes the Decision and Order of the Court. Defendant's counsel may submit a proposed Conditional Order of Release.

Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.

Maria G. Rosa, J.