Appellate panel rules against defendant in bail reform case

A Brooklyn appellate court ruled Wednesday against a Nassau burglary defendant's bid for release from jail — siding with a local judge's decision in a case related to the state's new bail reform law.

An attorney for Brayan Castano, 31, of Queens, argued last week before a four-justice panel that his client was entitled to get out of Nassau’s jail without bail under the new legislation.  

Attorney Jeffrey Groder said Castano’s charges were “nonqualifying offenses” under the statute, meaning Castano was charged with certain violent felonies that entitle a defendant to no-bail release.

He argued that because second-degree burglary was specified as a charge that qualifies a defendant for such release, his client’s attempted burglary charge — a less serious felony — shouldn’t prevent it.

However, Nassau prosecutor Andrea DiGregorio argued the legislation didn’t specifically list second-degree attempted burglary as a nonqualifying offense, saying bail could therefore be set for such a charge.

She also cited Castano's prior conviction for bail jumping and his alleged ties to Colombia, arguing his bail should remain at $2 million bond or $1 million cash as he awaits trial. Under the appellate decision, that bail now will be continued.

Nassau police arrested Castano and two co-defendants in 2018 before a grand jury indicted him on eight counts of second-degree burglary, one count of attempted second-degree burglary and a count of possessing burglar’s tools.

His arrest followed an investigation into a series of residential burglaries in high-end neighborhoods in places such as Old Westbury, Manhasset and Jericho. Prosecutors have alleged Castano was the getaway driver for the ring that made off with $2 million to $3 million in property before a bust during a Jericho break-in.

The appellate court found acting state Supreme Court Justice Helene Gugerty’s decision to continue the same bail for Castano after the new law took effect “did not violate ‘constitutional or statutory standards.’ ”

The panel issued its one-page decision, which also denied the defense’s secondary appeal for a bail reduction, without much explanation.

But the panel did comment during last week’s arguments about the “illogic” of the new legislation.

Brendan Brosh, a spokesman for the Nassau district attorney, said Wednesday: "This is one of many examples where the legislature's process last year left drafting errors that will necessitate litigation like this.”

His statement added: “We look forward to collaborating with lawmakers in a more open, considered and careful process to give New Yorkers a fair and just system that safeguards the rights of the accused and keeps the public safe.”

An exception in the new law setting out no-bail release terms says a judge may make “an individualized determination that the principal poses a risk of flight to avoid prosecution.”

The judge then may set “the least restrictive” condition “that will reasonably assure” the person’s return to court.

The defense tried to counter the flight risk argument by saying Castano is a lifelong Queens resident who is married, works in construction and is an Army veteran.

“We’re disappointed in the decision and now we have to turn our attention to getting the case to trial,” Groder said Wednesday.