PEOPLE EX REL LORD v. COLUMBIA COUNTY SHERIFF (2021)

The petitioner, Khalid Lord, through the Columbia County Public Defender seeks by Order to Show Cause a writ of habeas corpus and an Order directing the immediate release of the petitioner on his own recognizance. The Columbia County District Attorney opposes.

On August 6, 2021 the petitioner was arrested for Criminal Sale of a Controlled Substance 3rd Degree (PL § 220.39(1)), and released on his own recognizance. By Order to Show Cause dated August 24, 2021 the Hudson City Court (Connor, J.) revoked the petitioner's recognizance bail pursuant to CPL § 530.60, with a bail hearing scheduled for August 31, 2021. In support of that application, the Columbia County District offered his affirmation, with supporting exhibits (namely Exhibit 1, referenced as a printout of the petitioner's Facebook page), asserting that the petitioner “posted on his Facebook page, Lay Lo, photographs depicting a New York State Trooper and his family ․ (and that the Trooper) was instrumental in the arrest of the defendant.” In sum, the District Attorney argued that petitioner's alleged conduct constituted a threat made to a witness and therefore sufficient to revoke his recognizance bail. The petitioner remains in the custody of the respondent Columbia County Sheriff.

On August 25, 2021 the petitioner filed an application for a writ, which was declined by the Court by Letter Order dated August 27, 2021 — noting that the petitioner “already had an appropriate remedy in the form of the bail hearing scheduled for August 31, 2021 (People ex rel. Bullock v. Barry, 2002 WL 31720977 [Sup. Ct., New York County 2007]); and that “were the Court to grant the Writ, the CPL 530.60 objections could be addressed ․ by the Court directing a bail hearing within 72 hours (People v. Leyva, 72 Misc.3d 1033, 151 N.Y.S.3d 833 [2021]).

Now, in support of the instant application, the petitioner tells the Court that he appeared on August 31, 2021 in Hudson City Court for a bail hearing, asserts that “no actual hearing took place, and that the Columbia County District Attorney's Office offered no evidence into record.” He further notes that he has not been charged with any additional crime relative to the allegations in August 24, 2021 Order to Show Cause — which revoked his recognizance bail. The petitioner has also provided a copy of the transcript of the August 31, 2021 proceedings in Hudson City Court.

In opposition, the District Attorney notes that at the bail hearing held on August 31, 2021, the People “rested on the papers previously submitted in support of the Order to Show Cause” dated August 24, 2021. It is also argued that the hearing court “determined after the hearing that the defendant's Facebook posts were indeed intended to intimidate a witness ․ (and) that the threat against the ․ Trooper gives the Court an adequate basis to review its previous Order to release the defendant on his own recognizance.”

On the return of the instant Order to Show Cause, the District Attorney informed the Court that the petitioner has not yet been indicted following his August 6, 2021 arrest, that the matter has not yet been presented to the Grand Jury, and that he has not been arrested or indicted on a charge of intimidating a witness. The Court also understands that the petitioner has not waived indictment and that the underlying criminal matter has not been transferred from City Court to County Court.

Also on the return, the petitioner reiterated his argument that at the bail hearing held on August 31, 2021 the People failed to offer any “relevant admissible evidence” for the hearing court to reasonably believe the petitioner committed the crime of intimidating a witness.

For the reasons that follow the Court grants the petitioner's application for a Writ, and further Orders and Directs that he be immediately released from the custody of the Columbia County Sheriff.

However viewed, pursuant to CPL § 530.60[2][c], the hearing court could revoke the petitioner's prior securing order only after conducting a hearing, receive “relevant admissible evidence” and upon a finding that there was reasonable cause to believe that — as alleged by the District Attorney — he intimated or threatened a witness in violation of PL §§ 215.15, 215.16, or 215.17. Hearsay evidence, unless allowed under a recognized exception, may “not be considered in CPL § 530.60[2][c] hearings” (People v. Brann, 69 Misc. 3d 201, 204, 126 N.Y.S.3d 877 [2020]).

Turning the copy of the Facebook posting attached to the District Attorney's affirmation — which is the lynchpin of the People's argument that they offered “relevant admissible evidence” at the August 31, 2021 bail hearing — it was in admissible form only if the People satisfied the requirements to be admitted as an exception to the hearsay rule. Particularly, its admissibility required a sufficient authentication of the posting. Where, as here, there is no evidence that it was the petitioner's site, or that he had exclusive access to the site, or that the Facebook site was secure, there was simply no adequate foundation for the authentication of the posting or its admissibility (People v. Johnson, 51 Misc. 3d 450, 458, 28 N.Y.S.3d 783 [2015]). The District Attorney's affirmation, standing alone, was insufficient to establish the authenticity of the Facebook posting (JPMorgan Chase Bank, N.A. v. Clancy, 117 A.D.3d 472, 985 N.Y.S.2d 507 [2d Dept. 2014]) or that it was admissible as an exception to the hearsay rule.

On this record, including the Court's review of the transcript of the August 31, 2021 bail hearing, the hearing court erred on the law in not excluding hearsay, namely the copy of a Facebook posting, without finding that it fell under a recognized exemption (Brann, at 883,). Here, it was error to permit the People to introduce the Facebook posting into evidence. This said, and without any other admissible evidence, the hearing court could not revisit the original determination to release the petitioner on his own recognizance (People v. Leyva, 72 Misc.3d 1033, 151 N.Y.S.3d 833 [2021]).

Accordingly, it is

ORDERED, that the petitioner's application for a Writ of Habeas Corpus is granted; and it is further

ORDERED, that the Columbia County Sheriff shall immediately release the petitioner from his custody.

This constitutes the Decision and Order of the Court.

Henry F. Zwack, J.