§ 7010.Determination of proceeding.

Subd (a) of this section is derived from part of CPA §§ 1251, 1253, 1255, 1256 and 1267 and the first sentence of § 1262. Cf. notes to § 7003(a). The provision of the second sentence that there shall be no discharge solely for a “defect in form of the commitment” corresponds to the provision in CPA § 1255 that the prisoner shall be discharged on bail or remanded “although the commitment is irregular.” The additional requirement of CPA § 1255, where the commitment was irregular, that the prisoner “appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offense,” has been omitted as misleading. The primary question in most habeas corpus proceedings is whether the detention is “lawful.” This question is most often phrased in terms of “jurisdiction.” See 21 Carmody-Wait, Cyclopedia of New York Practice 7 (1956). Thus, in cases involving unlawful detention or commitment, the issue is whether the committing magistrate acted without jurisdiction. The magistrate has jurisdiction if there is “any” or “some” evidence produced at the hearing before him that the person detained is guilty of the crime for which he is committed; it is not the function of the court on habeas corpus, however, to make an independent determination that the defendant “appears” to be guilty. People ex rel. Howey v Warden, 207 NY 354, 101 NE 167 (1913); Matter of Henry, 13 Misc 734, 35 NY Supp 210 (Sup Ct 1895); see 21 Carmody-Wait, op cit supra at 73–75; NY Code Crim Proc § 208. The purpose of CPA § 1255, and of the corresponding provision in this subd, is to prevent the release of the person detained merely for a defect in the form of the commitment. As the Court of Appeals noted in People ex rel. Howey v Warden, supra at 360, 101 NE at 169:

“What the section in question contemplated and provides for are those practically immaterial errors in the description or nomenclature of the crime or in the form of the warrant which might well be overlooked when the evidence disclosed the probable commission by the accused of a crime substantially and fairly described in the warrant.” A judge who may hear a habeas corpus petition would also be qualified to sit as a committing magistrate. Compare Code Crim Proc § 147, with § 7002(b). Thus it would appear that where there is no evidence to support the commitment, but evidence that the person detained is guilty of some other crime, the judge holding the hearing on return of the writ could commit the prisoner for the other crime instead of discharging him. However, the court in People ex rel. Howey v Warden, supra at 360, 101 NE at 169, appears to have rejected such a possibility:

“A judge sitting in habeas corpus proceedings would have no authority to remand the accused for further confinement under this warrant of commitment because the evidence disclosed to his mind the probable commission of a crime by the accused radically differing from the one named and with which he had never been charged, and as to which no examination had taken place, and on which he had never been committed by the magistrate who alone had authority to commit. Such a result would involve not the disregard of a mere irregularity in the warrant but practically the commission of the accused to confinement by a new warrant made by the judge in a habeas corpus proceeding rather than by the committing magistrate.” But cf. People ex rel. Childs v Knott, 187 App Div 604, 620, 176 NY Supp 321, 333–34 (1st Dept 1919), affd 228 NY 608, 127 NE 329 (1920). No attempt has been made to resolve this apparent conflict since it involves primarily an interpretation of the Code of Criminal Procedure. Apparently, however, nothing would prevent the rearrest and commitment for another crime of the person discharged, “by virtue of a subsequent lawful mandate.” See CPLR § 7012; CPA § 1269. The specific exclusion from discharge because of detention by the wrong person, in the second sentence of this subd follows from the provisions of CPA § 1256 which are incorporated in subd (c). Although confined by its terms to cases of illegal detention, this subdivision is not intended to exclude habeas corpus proceedings based upon other grounds, such as in matrimonial cases, where a different determination from that provided for herein may be appropriate. See Dom Rel Law §§ 70, 71. CPA § 1254, which provided that a court should not inquire into the legality of a mandate or order except as permitted by CPA § 1252, is omitted as unnecessary. The final sentence of this subdivision incorporates the substance of the first sentence of CPA § 1267. The second sentence of CPA § 1267 has been deleted; an aggrieved party’s right to compensation for his wrongful detention may be satisfied in an action for false imprisonment. CPA § 1266, which dealt with service of a final order of discharge, has also been deleted as unnecessary. See notes to § 7001. The last sentence of CPA § 1262 has been deleted. Its provisions are now fully covered by § 204 of the Mental Hygiene Law, by virtue of a 1921 amendment to its predecessor, the Insanity Law. Laws 1921, c 673, § 5. The term “final judgment” has been used to conform to present terminology. But cf. rule 411.

Subd (b) of this section is a substitute for part of the first and all of the second sentence of CPA § 1255, part of CPA § 1276, and all of CPA §§ 1264, 1265, 1277, 1278, 1279, and 1280. The subdivision regulates the granting of bail as a result of a habeas corpus proceeding, the lowering of excessive bail through such proceeding, and prescribes the procedure for the release of a prisoner when bail is so granted. Bail is to be given in the manner required by the Code of Criminal Procedure. See Code Crim Proc §§ 550–606. No reason can be seen for treating the procedure for release of a prisoner on bail after habeas corpus proceedings differently from the procedure for his release on bail at any other time. The procedures in the CPA were archaic; they have been carried forward unchanged through various revisions of the civil practice act and civil code. See Code Civ Proc §§ 2061–2065 and notes (Throop ed 1880). The Code of Criminal Procedure provides a detailed system kept up to date because of its constant use and the procedures there set out should be adopted for bail on applications for habeas corpus. Compare, e.g., CPA §§ 1276–1278, with Code Crim Proc §§ 583–585. The language of CPA § 1255 made it appear mandatory that a person be admitted to bail on the return of a writ of habeas corpus in all cases where the offense was a “bailable” one. If the word “bailable” were given its normal meaning of any case not specifically non-bailable, the section would have been contrary to § 553 of the Code of Criminal Procedure, which provides that in all cases other than misdemeanors or those cases specifically enumerated in § 552 of that Code, a person may be admitted to bail “as a matter of discretion.” CPA § 1255 has not been given this literal meaning. Its predecessor provided that on the return of a writ of habeas corpus the person hearing the return was required to “either discharge, or bail, or remand the party so brought, as the case shall require, and as to justice shall appertain. . . .” Laws 1818, c 277, § 2. Once discretion has been exercised in denying or allowing bail, a court hearing a habeas corpus proceeding may only determine whether there has been an abuse of that discretion. People ex rel. Shapiro v Keeper of the City Prison, 290 NY 393, 49 NE2d 498 (1943). A habeas corpus proceeding may not be utilized to reduce bail unless it has been set so high that discretion in fixing it was abused. People ex rel. Rao v Adams, 296 NY 231, 72 NE2d 170 (1947); People ex rel. Lobell v McDonnell, 296 NY 109, 71 NE2d 423 (1947). The reason for the former practice of limiting habeas corpus to cases where discretion has been abused—reflected in this subdivision—was succinctly stated by the Court of Appeals in People ex rel. Shapiro v Keeper of the City Prison, supra, at 399, 49 NE2d at 501:

“[T]he lack of any statutory right of appeal from the General Sessions order [denying bail] made it doubly important that habeas corpus be made available to a prisoner forced to lie in jail without an adjudication of guilt. It does not follow, however, that the court which entertained the writ could exercise an independent discretion as to bail. The Legislature which forbade any appeal from an order denying bail, did not intend, in a backhanded way and under other forms, to permit the equivalent of an appeal, as to matters of discretion as well as matters of law. The traditional status and purpose of a writ of habeas corpus can be maintained in cases like this without making it a device for obtaining a new trial of a discretionary matter.” Subd (c) of this section covers CPA § 1252, part of § 1256 and the second sentence of § 1262. It is not necessary to repeat the grounds upon which a remand is required, as did CPA § 1252, because CPA § 1231 and § 7003(a) cover the same subject by stating when the writ shall not be issued. Language has been simplified, but no change in meaning is intended.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1971, ch 1097 § 8, eff Sept 1, 1971.