The arraignment of an East Hampton man Sunday morning, November 17, highlighted the changes coming to courthouses and police departments across New York State when it comes to bail and other procedures now taken for granted in the local jurisdictions. The case of Francisco Gomez-Berrezuetta was the exception that proves the rule.
Gomez-Berrezuetta, 36, also known as Xavier Gerrero, was pulled over by East Hampton town police on North Main Street Saturday night, November 16. Police said he was driving a 2005 Toyota erratically, leading to the stop. Failing sobriety tests, he was charged with driving while intoxicated, and was taken to headquarters, where he allegedly consented to take a breath test, the police said. The percentage of alcohol that was in his system, according to the police, was .22 of one percent, well above the .18 level that automatically raises such a charge to the aggravated level.
Gomez-Berrezuetta has never been convicted for DWI, so the aggravated charge is a misdemeanor.
That is not to say he has never been arrested on a DWI charge, according to the police. Allegedly, Gomez-Berrezutta, then going by the name Xavier Gerrero, was charged with DWI in Brookhaven by Suffolk County police in July 2014. While it is not clear whether or not he posted bail after that arrest, he never returned to court to answer the charge, the police said. A warrant was issued for him in 2014, which has been open since then. His license was suspended at that time, both based on the drunken driving charge, and the failure to appear in court, the arrest report reads. Because of those suspensions, Gomez-Berrezutta was also charged by East Hampton town police November 16 with aggravated unlicensed driving, a felony.
Fast forward to the next morning, and the arraignment of Gomez-Berrezuetta in front of Justice Lisa Rana in East Hampton Town Justice Court.
Rana was criticized by some for setting bail last month at $1000 for Lisa Rooney, the Montauk woman who police say was drunk when her 2019 Chevrolet Silverado truck struck and killed a Colombian man in Montauk. When Rana set that bail amount, she explained that she was acting under the directive of the New York State legislature’s total overhaul of the criminal procedure laws.
The overhaul was done through the budget bill for 2020. Under the new criminal procedure law, judges are no longer allowed to set bail for those charged with drunken driving, no matter if it is a misdemeanor or a felony, and no matter if the arrest followed an accident in which there was a fatality.
Rana reviewed Gomez-Berrezutta’s history November 17. She said that, under the new law, she is not allowed to consider the felony, since it is a non-violent charge, nor is she allowed to consider the warrant history of a defendant, nor the fact that he allegedly failed to appear in court as required, nor that he was allegedly driving despite having had his license suspended by court order. If she had set bail, which she can still do, technically, until New Year’s Eve, it would have to be returned to Gomez-Berrezutta by December 31.
It is estimated that East Hampton Town Justice Court is currently holding $500,000 in bail posted by defendants. Every person who has posted bail over the past couple of years for defendants whose cases are still open must be tracked down by the court’s clerks, and the money the court is holding must be returned by December 31.
Rana ordered Gomez-Berrezuetta released without bail, and he was taken back to headquarters to be turned over to Suffolk County police on the warrant and arraigned in county court.