A Brooklyn appellate court heard arguments Friday related to the state's new bail reform law as the attorney for a man indicted in a series of burglaries at million-dollar Nassau homes challenged a local judge's decision to deny his client's release from jail.
Nassau jail inmate Brayan Castano, 31, of Queens, should be freed while awaiting trial, defense attorney Jeffrey Groder told a four-justice panel in a case that could set a precedent involving interpretation of the new law.
The Mineola lawyer said Castano’s charges are “nonqualifying offenses” under the statute.
He said that means his client is entitled to release on his own recognizance because he’s charged with certain violent felonies that qualify a defendant for no-bail release.
But Nassau prosecutor Andrea DiGregorio countered that Castano should stay jailed on his current $2 million bond or $1 million cash bail, as acting State Supreme Court Justice Helene Gugerty ruled in Nassau County Court on Jan. 13.
DiGregorio told the Second Judicial Department panel the new legislation doesn’t specifically list second-degree attempted burglary as a nonqualifying offense even if it does list second-degree burglary as such. Castano faces both charges.
In an appellate filing, the prosecutor called Gugerty’s bail decision “a proper exercise of judicial discretion” and “founded upon a rational basis, the relevant statutory and constitutional requirements, and the factors of the case.”
But Groder argued Friday that “there’s no reason why an attempt should be excluded" as it is a less serious felony than "the completed crime."
Justice Mark Dillon said from the bench Friday that the State Legislature either “engaged in an act of illogic on purpose or they just screwed up” when drafting the law.
Gugerty, the Nassau judge, said during her ruling last week in Castano’s case that “there are many aspects of the bail reform statute which are incongruous.”
But she added: “Nevertheless, it is my obligation as a judge to apply the law strictly as enacted by the legislature.”
Gugerty made her bail ruling that day after Nassau prosecutor Stefanie Palma said Castano had a previous felony assault conviction, a bail jumping conviction and “ties to Colombia.”
An exception in the new law says a judge may make “an individualized determination that the principal poses a risk of flight to avoid prosecution” and then set “the least restrictive” condition “that will reasonably assure” the person’s return to court.
Groder said that day and in an appellate filing that Castano was a U.S. Army veteran who worked in construction, had been married for two years and was a lifelong Queens resident.
On Friday, he also asked the justices to consider setting a bail of $200,000 bond or $20,000 cash for Castano if they decided monetary bail was needed.
In late 2018, a Nassau grand jury indicted Castano and his co-defendants Andres Zapata, 21, of Queens, and Oscar Vera, 28, of San Bernardino, California, on multiple felony charges before all three pleaded not guilty.
Castano is facing eight counts of second-degree burglary, one count of attempted second-degree burglary and a count of possessing burglar’s tools. He has been jailed since his September 2018 arrest.
Nassau police nabbed the trio after a probe that began in May 2018 into residential burglaries in high-end neighborhoods and gated communities in places including Old Westbury, Manhasset and Jericho.
The Nassau district attorney’s office has alleged Castano was the getaway driver for the burglary ring that made off with $2 million to $3 million in stolen property before a police bust during a break-in at a Jericho home on Sept. 21, 2018.
Police said the burglars stole jewelry, cash and other valuables by breaking into the back doors and windows of homes, mostly on Friday and Saturday evenings.
The appellate panel on Friday also questioned why Castano had been jailed for more than a year without a trial.
“Isn’t this exactly the situation that was being addressed by the legislature when they changed this … and did this bail reform ... because there were people sitting in jail for years at a time without getting a trial?” Justice Linda Christopher remarked.
Justice Paul Wooten said “the spirit of the statute is designed so that people are not warehoused in jail pending a date for trial.”
DiGregorio pointed to defense requests for delays and said the prosecution had been ready for trial since October. Groder said he recently was appointed to represent Castano after his client ran out of money to pay his private lawyer.
The court could issue a decision next week.