HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/MCGREEVY.ASC

Text File | 1993-01-14 | 4KB | 83 lines

/* This case is reported in 514 N.Y.S. 2d 662. In this case, the
defendant is granted conditions of bail- one of which being a
negative AIDS test. In this case the court finds that this may
not be a condition of pre-trial release. [Even with AIDS testing
statutes, this case remains authority for the fact that a
NEGATIVE test is not a permissible condition of granting bail.
Note that the public defender must bring the suit on behalf of
the people of state (!) a quaint procedureal idea. Most states
simply allow a defendant to appeal a refusal of bail or
conditions for bail.*/

The PEOPLE of the State of New York on Relation of Arthur F.
GLASS, Jr., Assistant Rensselaer County Public Defender, Acting
on Behalf of Timothy RYAN,

v.

W. Warren McGREEVY, Sheriff of the County of Rensselaer,
Respondent.

Supreme Court, Rensselaer County.

April 8, 1987.

F. WARREN TRAVERS, Justice.

This matter was commenced by defendant's attorney by petition for
a Writ of Habeas Corpus.  Defendant has been detained in the
Rensselaer County Jail and is charged with Rape in the First
Degree and Burglary in the Second Degree.  Defendant, after
arraignment in the local criminal court, appeared in County Court
upon a Writ of Habeas Corpus on April 3, 1987, where bail was set
at $10,000. The court also ordered as a condition of release on
bail that petitioner undergo a blood test to confirm to the court
that petitioner is not a carrier or infected with the virus
associated with Acquired Immune Deficiency Syndrome, more
commonly known as "AIDS". On April 6, 1987, after a bail hearing,
the County Court reduced the amount of bail to $2,500.00, but
continued the condition of a negative "AIDS" test.  This
proceeding challenges the condition of a negative "AIDS" test
imposed by County Court prior to release on bail.

[1]  Such an Order may properly be reviewed in a Habeas Corpus
proceeding where it appears that either constitutional or
statutory standards proscribing excessive bail have been
violated, CPLR 7010; People v. Wolcott, 111 A.D.2d 943, 490
N.Y.S.2d 40 (Third Department).  The factors which must guide the
court's exercise of discretion in setting bail are set forth at
CPL 510.30, see also People v. Warden, 118 A.D.2d 443, 499
N.Y.S.2d 738. The presumption of innocence accorded every
criminal defendant militates strongly against incarceration in
advance of a determination as to guilt  The County Court here has
effectively denied bail to the petitioner by requiring a negative
"AIDS" test as a condition to release on bail.

[2] The standards set forth in CPL 510.30 do not contain any
requirement of a negative "AIDS" test as a condition of release
upon bail.  It may be the Legislature should address the issue of
AIDS testing upon arrest for certain crimes for the benefit of
the victim as well as the accused. That is a policy decision for
the Legislature to make and not the courts. AIDS is certainly a
serious worldwide health danger to all people and not something
that can be ignored.  The court finds it was improper and an
abuse of discretion pursuant to CPLR, Section 7010(b) to impose a
condition of a negative AIDS test prior to release on bail,
People ex rel. Ryan v. Infante, 108 A.D.2d 987, 485 N.Y.S.2d 852.

The court must, pursuant to CPLR 7010(b), turn its attention to
the question of release on bail after finding that the County
Court has, by its conditions, effectively denied bail. This court
upon consideration of all the papers, oral argument, the
principal's character, reputation, employment status, family
ties, length of residence, criminal record, the weight of the
evidence against him, and the potential sentence which may be
imposed upon conviction, determines that bail in the sum of
$10,000 is appropriate.

All papers are returned to Attorney Glass for submission of an
Order without notice in accordance herewith directly to chambers.