Morgenthau v. Rosenberger

Petition, pursuant to CPLR article 78, seeking a writ in the [479] nature of prohibition to prevent a Justice of this Court from entertaining an application for bail pursuant to CPL 460.50, denied and the petition dismissed, without costs. Defendant stands convicted of two counts of sexual abuse in the first degree, for which he was sentenced to concurrent terms of l1/2 to 41/2 years’ imprisonment. Upon conviction, Supreme Court, New York County (Daniel P. FitzGerald, J.) remanded defendant without bail and, on December 21, 1994, application to fix bail pursuant to CPL 530.45 was made to respondent Justice Ernst Rosenberger, who issued an order setting bail in the amount of $3 million "until date of sentence”. On January 17, 1995, defendant applied for "reconsideration” of the order, proposing that bail be set at $1.2 million. Although the application was followed by various submissions from the parties, no decision was issued, and defendant was sentenced on February 7, 1995. On February 9, 1995, defendant filed a notice of appeal and subsequently submitted a motion for bail pursuant to CPL 460.50 to respondent Justice. In his petition, the District Attorney contends that, by requesting bail before Supreme Court on the date of sentencing, defendant forfeited his right to make an application for . bail before this Court. The language of the respective bail provisions, however, does not support this view. CPL 530.45 and 460.50 serve similar but distinct functions. CPL 530.45 provides a means for a defendant to obtain bail during the period following conviction and prior to sentencing. CPL 460.50 affords the means to obtain bail during the pendency of an appeal and, by its terms, applies to "a defendant who has taken an appeal to an intermediate appellate court from a judgment or from a sentence of a criminal court”. (CPL 460.50 [1].) Each provision contains the language, "Not more than one application may be made pursuant to this section.” (CPL 460.50 [3]; 530.45 [3].) Respondent’s initial order granting bail pursuant to CPL 530.45 expired, by its terms, on February 7, 1995, the date of sentencing. Defendant’s application to modify the amount of bail was thereby rendered moot. Likewise, the application at sentencing before Supreme Court could not have been entertained under CPL 460.50 as the notice of appeal had not yet been filed (People v Garcia, 437 NYS2d 382 [2d Dept, Mollen, J.]). Indeed, in dismissing defense counsel’s request for bail, Supreme Court specifically remarked that defendant would have the opportunity to make his application before whichever Justice of the Appellate Division he chose. Defendant has made only one post-sentence application to fix [480] bail, and the statutory prescription for a single appellate bail application has not been violated. This Court therefore has jurisdiction to issue an order pursuant to CPL 460.50. Concur— Murphy, P. J., and Rubin, J. Kupferman, J., concurs in a memorandum and Ross and Mazzarelli, JJ., dissent in a separate memorandum by Ross, J., all as follows: