Jail writ- J JOHN SEBASTIAN ATTORNEY

1. SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: CRIMINAL TERM PART
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THE PEOPLE OF THE STATE OF NEW YORK
Ex Rel: GARY GREENWALD, ESQ.
on Behalf of : ANNA GRISTINA WRIT OF HABEAS CORPUS
IND. NO.: 751/2012
Petitioner,
- against - ADJ. DATE AND PART:
DORA B.SCHRIRO, Commissioner
Department of Correction, PLACE OF
INCARCERATION:
RMSC 310-12-00212
Respondent.
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TO THE PEOPLE OF THE STATE OF NEW YORK:
TO THE COMMISSIONER:
WE COMMAND YOU, that the body of ANNA GRISTINA, by you
imprisoned and detained, as it is said together with the time and
cause of such imprisonment and detention by whatsoever name the
said ANNA GRISTINA is called or charged, be brought before the
Justice presiding at a Criminal Term of the Supreme Court of the
State of New York, Part -' New York County at the Criminal
Courthouse, 100 Centre Street, New York, New York, on day of
2012, at 9:30 a.m. in the forenoon, to do and receive that
which shall then and there be considered concerning the said Anna
Gristina, and have you then and there this Writ.
ORDERED, that service of a copy of this Order together with

2. the petition upon which it is based on the District Attorney on
or before the day of ' 2012, shall be deemed
sufficient service.
WITNESS, HONORABLE -' one of the Justices of
the Supreme Court, State of New York this day of
2012.
The above Writ allowed this day of
JUSTICE OF THE SUPREME COURT
OF THE STATE OF NEW YORK

3. SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: CRIMINAL TERM PART
x
THE PEOPLE OF THE STATE OF NEW YORK
Ex Rel: GARY GREENWALD, ESQ.
on Behalf of: ANNA GRISTINA
PETITION IN SUPPORT
OF WRIT OF HABEAS
CORPUS
Petitioner, IND. NO.: 751/2012
- against -
DORA B. SCHRIRO, Commissioner
Department of Correction,
Respondent.
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The Petition of GARY GREENWALD, ESQ., respectfully states:
1. The relator is an attorney associated with GREENWALD
LAW OFFICES, attorneys for the petitioner herein.
2. This affirmation is made on information and belief,
which is based upon inspection of the court and defense files,
and discussions with prosecutors and persons connected with this
case.
3. This affirmation is made in support of this Writ of
Habeas Corpus alleging that the Petitioner/Defendant is being
detained on excessive bail in violation of Article 1, Section 5
of the New York State Constitution and the Eighth Amendment of
the United States Constitution.
4. Petitioner/defendant was arraigned on a single charge
of Promoting Prostitution in the Third Degree [PL 230.25(1)], in
New York State Supreme Court, Part 59, on February 23, 2012, and
bail was set at $2,000,000 bond or $1,000,000 cash.
5. The Petitioner/Defendant remains incarcerated and unable

4. to post bail. Upon information and belief, the only hold on the
Petitioner/Defendant is the bail set by the court at her
arraignment, a sum which she has not posted and cannot post.
6. The Petition/Defendant has no prior criminal record.
She is married, has a family, children, long-time ties to her New
York community, is not a flight risk, and is prepared to turn her
passport over to the District Attorney's Office.
7. The instant offense of which the Petitioner/Defendant is
accused of violating is a single class D non-violent felony.
8. Upon conviction, this offense does not require a term of
incarceration as part of sentence, and in fact, the
Petitioner/Defendant is eligible for a non-incarceratory
sentence. Should the Petitioner/Defendant be convicted of this
offense, the maximum sentence she could face is 2 1/3 - 7 years
incarceration.
9. The Petitioner/Defendant has every intention of
presenting herself before the Court to answer the instant
charges. If released, the Petitioner/Defendant would remain at
large in accordance with conditions set by this Court.
10. The Petitioner/Defendant submits that the Court which
set her bail abused its discretion pursuant to Criminal Procedure
Law 510.30 and set an excessive bail in violation of both the New
York State and United States Constitutions. The attached
Memorandum-of Law demonstrates this position.
11. No other application for this relief has been made.
WHEREFORE, your Petitioner/Defendant respectfully requests
that the accompanying writ be granted and that an order be issued

5. setting a reasonable bail.
DATED: Chester, New York
' 2012
GARY GREENWALD, ESQ.
GREENWALD LAW OFFICES
99 Brookside Ave
Chester, NY 10918
845-469-4900

6. MEMORANDUM - OF- LAW
IN SUPPORT OF THE INSTANT WRIT OF HABEAS CORPUS
SEEKING REDUCTION OF THE PETITIONER/DEFENDANT'S BAIL
It is without question that the scope of collateral review
by the court hearing habeas corpus petitions concerning excessive
bail is narrow and concerns only whether the court which set bail
abused its discretion pursuant to N.Y. Criminal Procedure Law§
510.30, and violated the constitutional standard prohibiting
excessive bail. See, People ex rel. Hunt v. Warden of Riker's
Island, 161 AD2d 475 [1st Dept 1990], appeal denied, 76 NY2d 703
[1990]; see also, People ex rel. Robinson v. Campbell, 184 AD2d
988 [3rd Dept 1992].
In determining whether or not the fixation of bail violates
constitutional or statutory standards inhibiting excessive bail,
the habeas corpus court should consider relevant criteria
including, inter alia, the "nature of the offense, the penalty
which may be imposed, the probability of the willing appearance
of the defendant or his flight to avoid punishment, the pecuniary
and social condition of defendant and his general reputation and
character, and the apparent nature and strength of the proof as
bearing on the probability of his conviction." See, People ex
rel. Klein v. Krueger, 25 NY2d 497, 501 [1969]. But in
conducting such a review, the habeas corpus court may not, absent
extraordinary circumstances, consider evidence not before the
original bail-fixating court. People ex rel. Rosenthal v.
Wolfson, 48 N.Y.2d 230 [1979]. The scope of inquiry is only as
to whether the bail setting court abused its discretion by

7. setting said bail without reason or for reasons insufficient in
law. See, People ex rel. Klein v. Krueger, suprai see also,
People ex rel. Weisenfeld v. Warden, New York Detention Facility,
37 N.Y.2d 760 [1975]. It is of paramount importance that the
bail was the product of discretion which rested upon a rational
basis. See, People ex rel. Klein v. Krueger, supra. There must
be a sufficient showing on the record to support the decision and
the exercise of discretion must be upon a rational consideration
of the criteria cited in CPL 510.30(2). Unless the record sets
forth the factors utilized in determining the amount of bail or
the habeas corpus court has made specific findings in its
decision fixing bail, the exercise of discretion must be deemed
arbitrary.
Moreover, the "presumption of innocence accorded every
criminal defendant militates strongly against incarceration in
advance of a determination as to guilt. For this reason bail may
not be set in an amount greater than necessary to ensure court
attendance." See, People ex rel. Benton v. Warden, N.Y. City
House of Detention for Men, 118 A.D.2d 443, 445 [1st Dept 1986]
see also, State ex rel. Barrett on behalf of Galanis v. Koehler,
132 AD2d 491 [1st Dept 1987], appeal dismissed, 70 NY2d 951
[1988]. "The statutory criteria of CPL 510.30(2) are used to
gauge the only matter of legitimate concern in such a bail
hearing, viz., whether any bail or the amount fixed was necessary
to insure the defendant's future appearance in court." See,
People ex rel. Masselli v. Levy, 126 AD2d 501 [1st Dept 1987].
The seriousness of the crime charged and severity of the

8. possible punishment are, of course, relevant considerations, but
only to the extent that they demonstrate a defendant's propensity
to flee. The statute is clear in this regard when it commands
that "the court must consider the kind and degree of control or
restriction that is necessary to secure his court attendance.n
See, CPL§ 510.30(2) (a) (emphasis added).
The nature of the case against the defendant and possible
punishment are only two of the numerous factors to be weighed in
making the ultimate determination required by CPL§ 510.30(2).
Other factors include character, reputation, habits and mental
condition, employment and financial resources, fammily ties and
length of time at a residence, criminal record, juvenile
delinquency record, record of responding to court appearances
when required, the weight of evidence against the defendant and
probability of conviction. The court is required by the statue
to examine and balance all of these factors delineated in CPL
510.30(2), keeping in mind that the legitimate objective of the
bail system is to secure the attendance in court of a defendant.
Petitioner/Defendant notes the recent New York State Court
of Appeals decision, People ex rel. McManus v. Horn, 2012 WL
952409, March 22, 2012 , wherein the Court held that,
"[p]roviding flexible bail alternatives to pretrial detainees-
who are presumptively innocent until proven guilty beyond a
reasonable doubt-is consistent with the underlying purpose of
article 520. The legislation [CPL Article 520] was
intended to reform the restrictive bail scheme that existed in
the former Code of criminal Procedure in order to improve the
availability

9. of pretrial releasen.

10. In the case at bar, the bail set of $2,000,000 bond or
$1,000,000 cash is excessive in light of how the factors set
forth in CPL 510.30[2] relate to the Petitioner/Defendant. The
Petitioner/Defendant is a 44 year old married woman, a mother
with no criminal record. Her character, reputation, habits, and
mental condition, aside from the instant case, have never been
called into question. She has family ties, and has been a
resident of her Orange County, NY community for more than ten
years. While the Petitioner/ Defendant has been trying to start
a legitimate on-line dating service, and her husband is a real
estate agent, they are not a family of means. The
Petitioner/Defendant has no ability to raise the amount of money
required to meet the bail that has been set. In fact, it is so
disproportionate to the financial resources of the
Petitioner/Defendant that it is tantamount to remand.
Furthermore, the bail as has been set is completely
inappropriate for a single count of a low- level non-violent D
felony, a felony which permits a probationary sentence should a
conviction be attained. Although the People submit that they
have compelling evidence of the Petitioner/Defendant's guilt,
that does not change the fact that the instant offense is a non-
violent felony which does not require a sentence of jail time.
The Petitioner/Defendant submits that the court which set
bail in this case abused its discretion in setting such an
excessive bail. It appears that the only consideration of the
court was that the Petitioner/Defendant may be a flight risk,
based upon an allegation by the People that many years ago the
Petitioner/Defendant went to Canada when the police were possibly

11. investigating her. Besides being an unproven and unsupported
allegation, the Petitioner/Defendant asserts that at the time
when the Petitioner/Defendant did indeed travel to Canada, she
had not been arrested or charged with any crime, nor was there a
warrant issued for her arrest. Furthermore, she was never
subsequently charged with absconding, or any crime relating to
her travels.
The Court which set the bail did not have a rational basis
for setting it at such a high amount, as the reason given by the
Court for setting it was clearly insufficient in the eyes of the
law, and an abuse of discretion. Especially in light of all of
the other CPL 510.30(2) factors which are favorable to the
Petitioner/Defendant, which strongly support a reasonable bail
having been set, and which the bail setting court apparently did
not weigh. For the Court could have, and should have, set a much
lower bail which, considering the Petitioner/Defendant's
financial situation, and with the Petitioner/Defendant
surrendering her passport to the New York County District
Attorney's Office, would have guaranteed all of her appearances
in Court.
The Petitioner/Defendant is aware of the People's
allegation that the Petitioner/Defendant generated millions of
dollars over the years by promoting prostitution. However, the
Petitioner/Defendant submits that if that position had any truth
behind it, the Petitioner/Defendant would clearly have been able
to post her bail to attain her release. That is obviously not
the case. For bail to have been set in the millions for a D
felony, on a defendant with no prior record and who enjoys the

12. presumption of innocence, is outrageous.
Accordingly, the Petitioner/Defendant prays that this Court
grant this Writ of Habeas Corpus and issue an order setting a
reasonable bail in this case.
DATED: Chester, New York
-----' 2012
GARY GREENWALD, ESQ.
GREENWALD LAW OFFICES
99 Brookside Ave
Chester, NY 10918
845-469-4900