Gov. Andrew Cuomo said Thursday that prosecutors in New York City should be charging individuals caught looting storefronts with crimes that would make them eligible for cash bail, which could prevent those defendants from being immediately released from custody.
But the state’s prosecutors, including those in New York City, issued a sharp rebuke soon after, saying Cuomo’s suggestion wouldn’t be possible due to the nature of those crimes.
Cuomo was saying that prosecutors should be charging individuals with bail-eligible crimes to prevent some of them from immediately being released. That would limit the possibility of those individuals going back to loot storefronts the next day, Cuomo said.
“If the police were arresting looters, and they were then being arrested and returned to the street the next day again, that would be nonsensical,” Cuomo said.
“But if you have looters who are using rocks, breaking windows, stealing, these people should be charged with the crime they’re committing, and bail set.”
He argued that those individuals should be charged with burglary in the second degree if they’ve used an object to break into a storefront and steal items. He also claimed that the charge would be bail eligible.
District attorneys, later Wednesday, said Cuomo was wrong on both points.
A spokesman for Manhattan District Attorney Cyrus Vance, whose office is charged with prosecuting several of the arrests over the last week, said many of the cases don’t rise to the level of burglary in the second degree under current state law.
"To date the overwhelming majority of looting cases in Manhattan cannot be charged as Burglary in the Second Degree,” the spokesman said. “The facts of those cases don’t support such a charge.”
Orange County District Attorney David Hoovler, the current president of the District Attorneys Association of the State of New York, confirmed that the nature of the crimes that have been reported don’t match with burglary in the second degree.
To qualify for that charge under current law, the storefront has to share the building with a dwelling, Hoovler said.
And, even if the storefront did share the building with a dwelling, the resulting charge still wouldn’t be eligible for cash bail, he said. A new law approved in April will change that, but it doesn’t go into effect until July.
“The law that would allow for bail for a burglary of a dwelling or shared dwelling does not go into effect until July 1 and even then the facts would have to also support entry into the dwelling portion of the premises,” Hoovler said.
“For an overwhelming majority of these cases, the facts do not justify charges that would be bail eligible under New York State's current laws. That is why we are seeing these looters immediately released upon arraignment or given a desk appearance ticket.”
A coalition of public defenders, which are rarely on the side of the state's prosecutors, issued a statement later Thursday, criticizing Cuomo's remarks. The coalition included each of the major public defender groups in New York City.
"This blatant disregard for truth in prosecution is aberrant to the demand for a fair justice system that protesters are now demanding," the coalition said.
Hundreds of people have been arrested in New York City each night since the protests started over the weekend.