Kon v. Maginley-Liddie: New York Judges Must Make and Explain Individualized Flight-Risk Findings Before Remand; Noncompliance Is Reversible on Habeas

Introduction

In People ex rel. Kon v. Lynelle Maginley-Liddie, 2025 NY Slip Op 05785 (Oct. 21, 2025), the New York Court of Appeals clarified and enforced a core procedural requirement of New York’s post‑reform bail regime: before selecting a securing order—including the most restrictive option of remand—the court must make an individualized determination of the defendant’s risk of flight and must explain, on the record or in writing, both the basis for that determination and its choice of securing order (CPL 510.10[1]; see also CPL 530.40[4]).

The case arises from a habeas corpus challenge to a remand order entered after the defendant’s conviction was reversed and a new trial ordered. The trial court remanded the defendant without articulating a flight‑risk finding or offering reasons for the remand. The Appellate Division dismissed the habeas petition. The Court of Appeals reversed, holding that the trial court’s failure to comply with CPL 510.10(1)’s explanation mandate was an abuse of discretion warranting habeas relief, though not an automatic discharge. The remedy is a remittal for a new, compliant securing order.

Parties: Appellant was represented by Hannah Kon; respondent, the custodian (Department of Correction official), by Nancy Fitzpatrick Talcott. The opinion of the Court was authored by Judge Halligan; Judge Rivera concurred in result, joined by Judge Troutman.

Summary of the Opinion

After the Appellate Division reversed Diego Guerra’s conviction for ineffective assistance and ordered a new trial (People v. Guerra, 231 AD3d 852 [2d Dept 2024]), the trial court considered a new securing order under the current bail statute. The People urged continued remand based on the seriousness of the charges, the strength of the evidence, the potential sentence, and the asserted likelihood of success on the People’s pending appeal to the Court of Appeals. The defense argued community ties, a lack of prior criminal record, employment, a desire to clear his name, and that the People were unlikely to prevail on appeal.

The trial court then stated, without elaboration, that it had considered the factors in “section 510.30” and that remand was “the least restrictive means” of assuring return to court. It did not make an explicit flight‑risk finding or explain the basis for remand.

On habeas, the Appellate Division dismissed, concluding the remand did not violate constitutional or statutory standards (citing People ex rel. Klein v. Krueger, 25 NY2d 497 [1969]). The Court of Appeals reversed. It held:

Trial courts must make an individualized determination whether the defendant poses a risk of flight and must explain the basis for that determination and the choice of securing order on the record or in writing (CPL 510.10[1]; CPL 530.40[4]).
Merely reciting consideration of generic “factors,” mis‑citing the applicable statute, or invoking an outdated “least restrictive means” formulation does not satisfy the statute; the court must provide substantive reasoning.
The deficiency is reviewable on habeas; the failure to comply is an abuse of discretion (the concurrence labels it an error of law). However, it does not render the detention “illegal” within the meaning of CPLR 7010(a), because the court had statutory authority to remand upon proper findings.
Remedy: reverse the Appellate Division and remit for further proceedings to issue a new securing order that complies with CPL 510.10.

Analysis

I. Statutory background and the post‑2019 bail framework

New York’s 2019 bail reforms (as amended in subsequent years) fundamentally reoriented pretrial securing orders. For most offenses, there is a presumption of release; for enumerated “qualifying offenses,” courts retain discretion to set bail or, for felony qualifying offenses, to remand (CPL 510.10[4]; CPL 530.40[4]). Across the board, however, CPL 510.10(1) requires:

An individualized determination “whether the principal poses a risk of flight to avoid prosecution,”
Consideration of “the kind and degree of control or restriction necessary to reasonably assure the principal’s return to court,” and
Selection of a securing order consistent with that determination, accompanied by an explanation “on the record or in writing.”

The statute directs courts to “consider and take into account available information about the principal, including” a non‑exhaustive list of factors such as the person’s activities and history, criminal record, prior failures to appear, the charges, whether harm is alleged, firearm history, and—where the principal seeks a securing order pending appeal—the merit or lack of merit of the appeal. See CPL 510.10(1) and footnote 1 of the opinion. The statute’s focus remains on risk of flight; seriousness or harm may be considered insofar as it bears on that assessment, but New York law does not authorize detention on a free‑standing “dangerousness” standard.

II. What the Court decided

The Court of Appeals held that the trial court violated CPL 510.10(1) by:

Failing to make an explicit, individualized finding on flight risk; and
Failing to explain the basis for its determination and its choice of remand as the securing order.

The trial court’s generic assertion that it had considered “the factors outlined in section 510.30” and that remand was “the least restrictive means” did not satisfy the statute. The opinion notes that the court appeared to rely on an outdated formulation and cited the wrong statute (510.30 rather than 510.10). The Court emphasized that appellate or habeas courts cannot guess at the trial court’s reasoning, cannot infer a silent adoption of the People’s arguments, and cannot supply findings never made. The statute’s command to “explain” requires the court to put its reasoning into words—briefly is fine, but substantively.

Remedy: The Court rejected the argument that the failure rendered custody “illegal” under CPLR 7010(a) (which would trigger discharge), because, had the trial court complied with the statute, it could have lawfully remanded a defendant charged with a qualifying felony. The Court instead characterized the violation as an abuse of discretion reviewable on habeas under People ex rel. Klein v. Krueger, requiring reversal and remittal for a new, compliant securing order. Recognizing a mismatch between CPLR 7010’s historic remedial menu and the modern bail statute’s spectrum of securing orders, the Court nonetheless directed the Appellate Division to ensure compliance with CPL 510.10 on remand (see footnote 2).

III. Precedents cited and their influence

People ex rel. Klein v. Krueger, 25 NY2d 497 (1969):
The Court reaffirmed Klein’s core framework: bail determinations are not directly appealable; habeas relief is available to police “constitutional or statutory standards” but review is limited. The habeas court may not conduct a de novo bail hearing or re‑weigh factors; it reviews the propriety of the order on the record before the bail court. Here, Klein supports the proposition that failure to follow statutory procedure is a proper subject for habeas and that the appropriate relief is corrective, not a wholesale redo of bail on a fresh record.
People ex rel. Rosenthal v. Wolfson, 48 NY2d 230 (1979):
Cited for the rule that habeas review is confined to the record before the bail‑setting court. This underlines why CPL 510.10’s on‑the‑record explanation requirement matters: without articulated reasons, meaningful review is impossible.
People ex rel. Griffin v. Brann, 72 Misc 3d 237 (Sup Ct, Bronx County 2020), and State of N.Y. ex rel. Rooney v. Brann, 68 Misc 3d 679 (Sup Ct, Kings County 2020):
These trial‑level decisions cautioned that judges need not deliver a “lengthy catechistic” analysis of every factor but must give more than boilerplate. The Court of Appeals adopts that calibration: brevity is permissible; substance is required.
People ex rel. Steinagle v. Howard, 204 AD3d 1491 (4th Dept 2022):
The concurrence leans on Steinagle to emphasize that failure to explain is a violation of a statutory mandate—an error of law rather than a discretionary misjudgment. Although the majority uses the language of “abuse of discretion,” both opinions converge on the same remedy: reversal and a compliant securing order.
People ex rel. Welch v. Maginley-Liddie, — NY3d —, 2025 NY Slip Op 03645 (2025):
Quoted by the concurrence for the basic notion of where the Legislature confers discretion in the bail statutes. The concurrence uses Welch to illustrate that discretion exists where the statute says so; where the statute mandates an explanation, there is no discretion to omit it.
People v. McClemore, 4 NY3d 821 (2005), and Tipaldo v. Lynn, 26 NY3d 204 (2015):
Cited by the concurrence to draw a general line between areas where the Legislature grants judicial discretion and areas where it imposes mandatory duties; the explanation mandate in CPL 510.10(1) falls in the latter category.
People v. Guerra, 231 AD3d 852 (2d Dept 2024):
The underlying reversal for ineffective assistance frames the procedural posture. The Court of Appeals expressly took no position on the merits of the People’s pending appeal from that reversal; the present decision is strictly about bail procedure and habeas remedy.

IV. The Court’s legal reasoning

Statutory command is clear and enforceable:
CPL 510.10(1) does not invite or allow silent compliance. It requires an individualized flight‑risk determination and an explanation of both that determination and the chosen securing order, on the record or in writing. Noncompliance is not cured by bare assertions that “factors” were considered.
No inference upon inference:
The People argued the trial court’s rationale was “obvious” from their presentation. The Court rejected inferences as incompatible with the Legislature’s insistence on transparency. Courts must actually say whether they find a risk of flight and why that finding supports the chosen order.
Outdated phrasing is not harmless:
The trial court’s invocation of “least restrictive means” and reference to CPL 510.30 illustrated reliance on a superseded template. In the post‑reform regime, the statute’s operative standard is to assess flight risk and “select a securing order consistent with its determination,” coupled with a reasoned explanation. Using obsolete language both signals and risks substantive misapplication.
Scope of explanation:
The Court disclaimed any requirement for a factor‑by‑factor catechism. A short but meaningful articulation will suffice. However, the explanation must identify the facts and factors the judge actually relied on and how they relate to return‑to‑court risk.
Remedy harmonized with habeas limits:
Under Klein and Rosenthal, habeas review is limited; the habeas court does not rehear bail de novo or consider new facts. The Court’s remedy—reversal and remittal for a compliant securing order—fits that framework and respects separation of functions, while enforcing the Legislature’s procedural safeguards.
Abuse of discretion vs. error of law:
The majority characterizes the failure as an abuse of discretion; the concurrence calls it an error of law because the court had no discretion to omit a required explanation. Although analytically distinct, both formulations yield the same practical result: reversal and remand for a statutorily compliant order.
Not “illegal detention” under CPLR 7010(a):
Because the trial court had authority to remand upon proper findings in a qualifying felony case, the defect did not make custody “illegal” for purposes of mandatory discharge under CPLR 7010(a). The Court recognized that CPLR 7010’s binary remedies (“discharge” or “fix bail”) do not map perfectly onto the modern spectrum of securing orders, noting the statutes were not amended in tandem. Nonetheless, habeas courts must ensure compliance with CPL 510.10.

V. Remedy and procedural posture

The Court of Appeals reversed the Appellate Division’s dismissal and remitted for “further proceedings in accordance with this opinion,” directing the issuance of a new securing order that complies with CPL 510.10. In doing so, the Court:

Confirmed that habeas remains the proper vehicle to police statutory compliance in bail decisions.
Clarified that where a trial court fails to make the required findings and explanations, the appropriate relief is not de novo bail determination by the habeas court, but a corrective remittal to secure a lawful order on the existing record (or, as the Appellate Division may direct, to develop the record as consistent with the statutory framework).
Signaled to habeas courts and the Appellate Division that relief need not be confined to “fixing the amount of bail” under CPLR 7010(b); modern relief may take the form of requiring a statutorily compliant securing order, given bail law’s evolution.

VI. Impact

This decision will have immediate operational consequences for bail practice in New York:

For trial judges:
Courts must expressly (1) find or reject flight risk and (2) explain, succinctly but substantively, why the chosen securing order follows from that finding. Reliance on outdated scripts or boilerplate is no longer tenable. Judges should be prepared to reference specific CPL 510.10(1) factors that drove the decision and to briefly explain why less restrictive options would or would not reasonably assure return to court.
For defense counsel:
Develop a robust record tailored to statutory factors: community ties, history, employment, prior court performance, health, financial circumstances (where bail is in play), and reasons the person will appear. Object to inadequate explanations and request a compliant on‑the‑record rationale. This opinion provides strong support for habeas relief where courts fail to explain.
For prosecutors:
Tie arguments to flight risk, not generic dangerousness. Explain how charge seriousness, potential sentence, strength of evidence, and any prior non‑appearance bear on incentives to flee. If arguments rely on appellate posture, recognize the statute’s limited treatment of appeal‑merits factors (explicitly listed when the defendant seeks bail pending appeal) and be prepared to justify their relevance to return‑to‑court risk in the particular posture.
For habeas practice:
Kon strengthens the enforceability of CPL 510.10(1)’s explanation mandate and supplies a clear remedy. While detention is not “illegal” solely because of a deficient explanation, the defect is reversible on habeas as an abuse of discretion (or error of law). Expect more targeted habeas petitions challenging unexplained remand orders.
Systemic effects:
The decision promotes transparency and accountability in bail rulings and ensures meaningful appellate/habeas review by building a usable record. It also implicitly encourages harmonization between CPLR 7010 remedies and the modern bail framework, recognizing that “fix bail or discharge” is too narrow a menu for today’s spectrum of securing orders.

Complex Concepts Simplified

Securing order:
Any pretrial order governing a defendant’s status: release on recognizance, non‑monetary conditions, bail (cash/insurance), or remand (custody). The choice is governed by statute and must be tied to risk of flight.
Qualifying offense:
A set of offenses designated by statute (CPL 510.10[4]) for which courts may set bail and, for felonies, may remand. In this case, the charged sexual performance offenses triggered that framework.
Individualized determination:
A case‑specific assessment focused on this defendant’s risk of failing to appear, based on statutorily listed and other relevant factors—not a generic assumption about the offense or category of defendants.
Flight risk vs. dangerousness:
New York’s bail scheme centers on risk of non‑appearance. While seriousness and alleged harm can be considered insofar as they affect incentives to appear, there is no free‑standing authority to detain based solely on predicted dangerousness.
“Explain … on the record or in writing”:
The judge must briefly state reasons—identifying key facts and factors and how they support the order—either orally at the hearing (transcribed) or in a written order. Boilerplate recitations are inadequate.
Habeas review of bail:
Bail orders are not directly appealable. A detainee may seek habeas relief, but the court’s review is limited to the original record; it cannot conduct a new evidentiary hearing to redo bail. The remedy is to correct violations of constitutional or statutory standards.
Abuse of discretion vs. error of law:
The majority frames the failure to explain as an abuse of discretion; the concurrence calls it an error of law because the statute leaves no discretion to omit an explanation. Either way, the violation mandates reversal and a compliant order.

Conclusion

Kon v. Maginley-Liddie cements a straightforward but essential rule for New York’s post‑reform bail system: judges must do two things before ordering remand (or any securing order)—make an individualized finding on flight risk and explain, on the record or in writing, why the chosen order follows from that finding. The Court of Appeals’ insistence on transparency forecloses silent reliance on party arguments, prohibits outdated scripts, and ensures that habeas review remains meaningful within its limited scope. While the Court avoids labeling such detentions “illegal” for automatic discharge, it squarely holds that noncompliance is reversible on habeas, with remittal for a statutorily compliant securing order.

For practitioners and judges alike, the message is practical and clear: build a record, state the reasons, and tie the order to risk of flight under CPL 510.10(1). Doing so honors legislative design, promotes fairness, and provides the appellate record New York’s law requires. Kon will likely become the touchstone citation whenever a securing order is issued without the explanation the statute demands.