One charged in fatal Philipstown hit-and-run
The Putnam County sheriff released three defendants awaiting trial in the county jail under the provisions of a new state bail law that went into effect on Jan. 1.
Sheriff Robert Langley Jr. said in a statement that the three men included an undocumented immigrant who in October allegedly struck and killed a 38-year-old Philipstown resident on Route 9 near Horton Road and fled the scene.
The defendant, Javier Lorenzano-Fercano, 40, was taken into custody by agents from the U.S. Immigration and Customs Enforcement upon his release from the jail, according to the Sheriff’s Department. After being arrested in Dutchess County the day after the October crash and charged with leaving the scene of a fatal accident, a felony, he was being held in Carmel on $25,000 cash bail or $50,000 bond.
Lorenzano-Fercano appeared in Philipstown Town Court on Wednesday (Jan. 8). His attorney, Joseph Tock of Mahopac, did not return a phone message.
The victim, Heriberto Mercado, who left behind a wife and two children, was found in the road after a witness heard a loud noise at about 11 p.m. on Friday, Oct. 25. The Sheriff’s Department said Mercado was walking home from the gas station at the intersection of Route 9 and Fishkill Road when he was struck.
Langley also said the jail released James McInerney, 50, a Long Island man charged with felony grand larceny, and Dusean Davis, 28, a Brooklyn resident charged with felony criminal possession of a forged instrument, pending their court appearances. Defense attorneys requested their clients be released.
(At the Dutchess County Jail, officials released at least 10 defendants following implementation of the bail-reform law.)
The bail-reform law, enacted as part of the 2019-20 state budget, eliminates cash bail for defendants charged with most misdemeanors and non-violent felonies, a step seen by its supporters as keeping low-income defendants from being jailed for long periods before trial. (A non-violent felony can include stalking, assaults that don’t cause serious injuries, drug offenses and burglary.) By one estimate, as of Dec. 30, about 65 percent of the state’s jail population were defendants awaiting trial.
“To not give judges the ability to consider the dangerousness of a defendant before releasing them directly into a community defies logic and puts public safety in jeopardy.” ~ State Sen. Sue Serino
The law also requires police officers to issue court appearance tickets rather than arrest most people charged with misdemeanors or the lowest class of felony.
The exceptions are sex-related misdemeanors and violations of orders of protection in domestic violence cases. For non-violent felonies, a judge can set bail for sex offenses, conspiracy to commit murder, witness intimidation or tampering, terrorism-related offenses or violating an order of protection.
Sandy Galef, whose state Assembly district includes Philipstown, and Jonathan Jacobson, whose district includes Beacon, both voted for the budget bill that included the law. State Sen. Sue Serino, whose district includes the Highlands, has been outspoken in her opposition.
A few states, including New York, do not allow judges to take “public safety” into account when deciding on bail. (A judge can consider flight risk.) In November, Serino introduced a bill that would allow judges to consider public safety — or what Serino called a suspect’s “dangerousness” — when determining whether he or she should be detained.
She also introduced a bill that would allow judges to set bail for “aggravated family offenses” such as assault, menacing, stalking, manslaughter, coercion, burglary and harassment where the defendant and the alleged victim are members of the same family or household.
“To not give judges the ability to consider the dangerousness of a defendant before releasing them directly into a community defies logic and puts public safety in jeopardy,” Serino said in a statement. “Making this important change is not about partisan politics, it’s about public safety.”
She added: “Proponents of the new bail law have argued that New Jersey recently passed ‘essentially’ the same changes and has seen a reduction in crime as a result. However, New Jersey ultimately did include measures to allow judges to conduct risk assessments before release based on the defendants’ criminal history and the severity of the charges — a measure that is missing from New York’s new bail laws.”
The Putnam County Legislature on Dec. 18 unanimously approved a resolution calling on the state Legislature to repeal or amend the measure. “Bail reform will make it impossible for a judge to set bail on a whole host of cases since cash bail will be eliminated for Class E felonies that include assault, aggravated harassment or theft, in addition to most misdemeanors,” it read. Before voting, legislators amended the resolution to reference Lorenzano-Fercano’s case.
I applaud The Current for shedding light on the serious crimes that are included and also how the state representatives of The Current’s coverage area voted on the approval of the changes. It is appropriate for Sheriff Langley to provide the information. It would be inappropriate for the county district attorney to release the information. To get into any specifics on the judges could jeopardize the case by appearing to be biased and giving the defense attorneys an opening to get the charges thrown out.
This new law needs to be adjusted for some of the crimes that they allow no bail for, but without a doubt, this is a great step for thousands of people in New York who are pretty much punished just because they can’t afford bail.
Bail is a racket that for the most part only serves the well-off, the well-connected, private jails/prisons and bail bondsman industry. Having to spend days/weeks/months in jail because you can’t afford bail is a crime and only makes criminals out of innocent people. You’re supposed to be innocent until proven guilty, being put in jail because of lack of funds is in itself, criminal.
Judges should have some say. I know because of an overzealous, incompetent, vindictive assistant district attorney thought it funny to try and set a ridiculously high bail on me for a misdemeanor that caused the judge to asked me how many felonies I had been convicted of. (I was never arrested nor convicted of anything before in my life and my case was thrown out.) The judge reduced it down to almost nothing. But this happens everyday in New York and elsewhere and thankfully it’s being reformed.
What does the law say is the punishment to the person who was released and does not show up for his or her court date? I haven’t seen or heard anything about that. If they don’t show up, I’m sure after this reform, they’ll be plenty of beds available.
If the defendant fails to appear for a court date, the law requires the judge to wait 48 hours before issuing a warrant for his or her arrest to allow the defense attorney to get his or her client to court. However, if the defendant continually misses court dates, the judge can revoke the conditions of the release and set bail or order detention. This also can happen if a defendant is accused of violating an order of protection, intimidating a witness or charged with a new felony after being released on a felony charge.
Apart from the bail-policy question, and the immigrant-status question of the driver, why the smug complacency in regard to the pedestrian fatality on Route 9 in October? Clearly this was an accident.
Why are there no sidewalks along the heavily traveled, uneven grade of Route 9? People live and work in the Clove Creek valley. Do we expect every one of them, to travel safely, to use a vehicle? Does anyone wonder why the traffic is so heavy and so hazardous there, requiring significant sheriff’s patrols? The route is not properly managed by the state.
Similar concerns about Route 9D in Philipstown drew public outcry and a significant (though still inadequate) response from the state. Why ignore the inadequacies of Route 9? Is it that the “wrong kind of people” live and travel along it? There should be a sidewalk from Jaycox Road north to the county line, although this would not absolve pedestrians from their responsibilities, including the need to remain alert to the traffic and to wear bright or reflective clothing from dusk to dawn.
State Sen. Sue Serino is correct when she acknowledges that the veritable end to cash bail in New Jersey has not jeopardized public safety. A report put out this year by the New Jersey courts shows that bail reform has not led to an increase in recidivism or a decrease in court appearances, despite requiring that judges use release as the default in all cases.
Where the senator gets it wrong is the need for New York to add a “dangerousness” analysis in order to be comparable to New Jersey. In fact, the bail reform already takes into account public safety while still protecting against the economic and racial disparities endemic to the old system. It allows judges to consider the primary factors that the New Jersey public-safety assessment relies upon, including the nature of the charge and any pending charges.
Under the new law, judges in New York are still allowed to set bail on the vast majority of violent felonies, as well as sex crimes, witness-tampering and any violations of family orders of protection. New York judges are also allowed to set bail on any felony when there is good evidence the person committed a new felony while awaiting trial.
New Jersey has shown that a more just criminal justice system is possible without jeopardizing public safety. Don’t let Sen. Serino get in the way of proving New York can do the same.