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Lawyer Tries To Free Buffalo Man From County Jail

A Buffalo man facing weapons possession charges has filed a second writ of habeus corpus with the state Supreme Court in Mayville seeking his release from the Chautauqua County Jail.

David Roggenbaum, a Lakewood attorney, is representing Mikial C. Moore and, for the second time in about two months is using a writ of habeus corpus to earn Moore’s release from the county jail. A writ of habeus corpus is a court order demanding that a public official, in this case Sheriff James Quattrone, deliver an imprisoned individual to the court and show a valid reason for that person’s detention. The procedure provides a means for prison inmates, or others acting on their behalf, to dispute the legal basis for confinement. Habeas corpus has deep roots in English common law.

Moore was arraigned in Mayville on March 28 on charges of second-degree criminal possession of a weapon, tampering with physical evidence, second-degree obstructing governmental administration and fourth-degree criminal possession of stolen property as part of an investigation into a shooting on Jefferson Street on March 26. During the investigation, police reported finding four illegal handguns, 200 rounds of ammunition, 12 pounds of marijuana, 1.2 ounces of cocaine and $4,000 cash in numerous searches.

Bail was set at $50,000 cash or $100,000 insurance company bond, or $50,000 partially secured bond at 10%.

The arraignment came shortly before court proceedings were shut down due to the COVID-19 pandemic and executive orders by Gov. Andrew Cuomo that suspended court proceedings, including grand jury proceedings and preliminary hearings. On May 7, Cuomo issued Executive Order 202.28 which said a court must show good cause for a person to remain in jail longer than 45 days because courts can’t empanel a grand jury.

“Significantly, the effect of Governor Cuomo’s executive orders suspending all process related to Article 180 of the Criminal Procedure Law between March 7 and May 7, 2020, was the continued detention — without a hearing to determine whether there was in fact sufficient evidence to warrant the court holding the person in for action of the grand jury — of any person incarcerated from arraignments on a felony complaint who could not afford bail,” Roggenbaum wrote in his plea. “As related hereto, Mr. Moore, who was and is unable to secure his release given the excessive bail currently set, has remained in custody since his arrest.”

State Supreme Court Justice Lynn Keane denied a habeus corpus writ in May. A preliminary hearing was then held about a week later on May 21, after which Moore was sent back to the county jail. Roggenbaum argues that because Moore’s preliminary hearing was held May 21, he was entitled to mandatory release from the county jail on Sunday, July 5, because no grand jury was empaneled to hear evidence in the case. That July 5 date, Roggenbaum argues, is the last date when the county District Attorney’s office should have been allowed to file a good cause argument to a judge to extend the 45 day grand jury window.

“To be clear, Executive Order 202.28 does allow for the People to seek an extension of the July 5, 2020, deadline by making a ‘good cause’ application to the Court,” Roggenbaum wrote. Make no mistake, however, that by enacting these new directives, the Executive Order reinstated timely grand jury presentment, necessary to continue to incarcerate people on felony accusations awaiting such grand jury action, with that presumption only overcome when a court made findings of good cause for why such presentment cannot proceed in a particular case. In this case, the People have made no effort to seek a good cause extension to excuse or delay this statutory requirement to justify keeping defendant in custody absent an indictment. Instead, it appears the prosecution is simply relying on the presumption that the inability to impanel a grand jury by itself will establish good cause, should a defendant ultimately raise the issue.”

Roggenbaum seeks a hearing on Monday in state Supreme Court to have Moore produced in court.

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