Morgenthau v. Rosenberger ( 1995 )

Kupferman, J. (concurring).

The Court is concerned with the issue of successive applications for bail, but I find that situation to be ambiguous and this Court’s previous ruling, while indicative, to be non-binding.

Rather than tilt at windmills in an arcane analysis, I am concerned with the real issues, which are: (1) will defendant flee if released pending appeal; and (2) is there a basis with any substance for the appeal so that it would be unfair to require defendant to serve a term of imprisonment pursuant to a judgment that may possibly be reversed.

The bail of $1,400,000 to be posted as a predicate for defendant’s release is more than sufficient and, especially when viewed in the context of the sentence of l1/2 to 41/2 years (of which some six months have been so far served with the remainder to be served if and when the appeal is lost), is not conducive to flight.

As to the basis for his appeal, defendant raises five points of which some have an apparent colorable basis. Accordingly, I agree with Justice Rosenberger that bail should be granted pending an expedited appeal.

In reaching my conclusion, I have put aside my personal distaste for this defendant and his lifestyle.