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Law360 (April 21, 2020, 6:31 PM EDT) -- A New York state judge on Monday questioned the constitutionality of Gov. Andrew Cuomo's emergency orders during the COVID-19 pandemic, which have delayed preliminary hearings for people who have been arrested and jailed for crimes.
In a Monday decision, Cohoes City Court Judge Thomas J. Marcelle lectured on the importance of preserving civil liberties in the midst of an emergency as he questioned the governor's orders, even though he ultimately ruled he could not ignore a chief administrative judge's instructions deeming the preliminary hearing sought by nine incarcerated defendants as "nonessential."
New York vastly restricted court activities in March, with Chief Administrative Judge Lawrence K. Marks suspending all but "essential" proceedings, which included arraignments but not preliminary hearings. Cuomo then issued Executive Order 202.8 tolling the statute of limitations through April 19, before extending that through May 7 in a subsequent order.
"While the court might be inclined to suspect that the executive order is unconstitutional, it will not and cannot override the order from Judge Marks," Judge Marcelle said, referring to the suspension of requirements under CPL 180.80 that a judge schedule a hearing within five to six days of a person's detention. "Thus, the court holds that a preliminary hearing under CPL 180.80 is a non-essential judicial activity in accordance with Judge Marks's order and no hearing can be held while it is in effect."
He concluded that suspending civil liberties may seem well-advised during a crisis, but there could be serious repercussions.
"People focus on fighting the battle, in this case a virus, and collateral damage on liberty is an afterthought that can be dealt with later and condemned in retrospect by history," he said. "So may be the case here."
While acknowledging that Cuomo and Judge Marks need to make tough decisions "in the midst of a terrible pandemic," Judge Marcelle warned that "courts need to be mindful that at some point the delay for prisoners becomes intolerable. The court is sure from the defendants' perspective it already has."
The governor's office did not immediately respond to a request for comment. A spokesman for the state courts declined to comment on the ruling.
Judge Marcelle has been nominated by two presidents for a federal judgeship, most recently by President Donald Trump. That opportunity was blocked in 2019 by Sen. Kirsten Gillibrand, who opposed the nomination because of Marcelle's views against abortion.
The local judge's decision on Monday in the case of nine men held for various crimes also drew attention to inequality in the availability of the state's much-vaunted "virtual" hearings in Albany County.
The inmates' argument that their due process rights were violated because video-linked or teleconferenced hearings are available to family court litigants in Albany County, but not to criminal defendants "has true force," Judge Marcelle ruled.
"Mr. Stanley has been incarcerated twenty-five days; if an adjournment is granted, he will have been confined more than fifty days without a judge determining if there is reasonable cause to hold him," the judge ruled. "All the while, virtual hearings are being conducted in family courts. Simply put, the defendants want what other litigants have — a virtual evidentiary hearing."
An attorney with the Albany County Office of the Public Defender declined to comment on behalf of the inmates.
The government is represented by Bryanne Perlanski of the Albany County District Attorney's Office.
Inmates are represented by various counsel. Taequan Stanley is represented by Anthony R. Huntley of the Albany County Office of the Public Defender. George Fuller, Kenneth Foster, Lee Williams, Edward Proper and Hassan Guishard are represented by Stephen Herrick and Beau Melita of the Albany County Office of the Public Defender. Bahkee Green is represented by Adam Eggleston of O'Brien & Wood. Ray-Son Butler is represented by Tina Sodhi of the Albany County Conflict Public Defender and Francisco Calderon. Zaquan Woody is represented by Paul Edwards.
The case is People of the State of New York v. Taequan Stanley et al., index numbers CR-637-20, CR-638-20, CR-669-20, CR-667-20, CR-693-20, CR-656-20, CR-548-20, CR-659-20, CR-674-20 in the Albany, Cohoes and Watervliet City Courts.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
