NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7034
SPONSOR: Tannousis TITLE OF BILL:
An act to amend the criminal procedure law, in relation to providing
judges more discretion regarding securing orders and limiting the
lengths of certain orders; to repeal certain provisions of the criminal
procedure law relating thereto; to amend the criminal procedure law and
the penal law, in relation to establishing new criminal discovery rules;
to repeal article 245 of the criminal procedure law relating thereto;
and to repeal certain provisions of the judiciary law and the executive
law relating to securing orders and criminal discovery
PURPOSE:
To repeal the Criminal Justice Reforms enacted in Chapters 55 and 59 of
the Laws of 2019 and subsequent amendments.
SUMMARY OF PROVISIONS:
§ 1. Subdivision 3 of section 150.10 of the criminal procedure law is
REPEALED.
§ 2. Subdivision 1 of section 150.20 of the criminal procedure law, as
amended by section 1-a of part JJJ of chapter 59 of the laws of 2019, is
amended to reflect original language prior to the bail & discovery
reforms enacted in the 2019-2020 New York State Budget.
§ 3. The criminal procedure law is amended by adding a new section
150.30 to address appearance tickets; issuance and service thereof after
arrest upon posting of pre-arraignment bail.
§ 4. Subdivision 1 of section 150.40 of the criminal procedure law, as
amended by section 8 of part 011 of chapter 56 of the laws of 2020, is
amended to address appearance ticket timetables.
§ 5. Section 150.80 of the criminal procedure law is REPEALED.
§ 6. Subdivisions 3-a, 3-b, 21 and 22 of section 500.10 of the criminal
procedure law are REPEALED.
§ 7. Subdivisions 5, 6, 7 and 9 of section 500.10 of the criminal proce-
dure law, as amended by section 1-e of part JJJ of chapter 59 of the
laws of 2019, are amended and related to definition of terms.
§ 8. Section 510.10 of the criminal procedure law, as amended by section
2 of part JJJ of chapter 59 of the laws of 2019 and subdivision 4 as
amended by section 2 of part UU of chapter 56 of the laws of 2020, is
amended and related to securing orders and classification of crimes.
§ 9. Section 510.20 of the criminal procedure law, as amended by section
3 of part JJJ of chapter 59 of the laws of 2019, is amended to closer
reflect original language prior to the bail & discovery reforms enacted
in the 2019-2020 New York State Budget.
§ 10. Section 510.30 of the criminal procedure law, as amended by
section 5 of part JJJ of chapter 59 of the laws of 2019, is amended to
closer reflect original language prior to the bail & discovery reforms
enacted in the 2019-2020 New York State Budget.
§ 11. Section 510.40 of the criminal procedure law, as amended by
section 6 of part JJJ of chapter 59 of the laws of 2019 and paragraph(c)
of subdivision 4 as amended by section 7 of part UU of chapter 56 of the
laws of 2020,,is amended to closer reflect original language prior to
the bail & discovery reforms enacted in the 2019-2020 New York State
Budget.
§ 12. Sections 510.43 and 510.45 of the criminal procedure law are
REPEALED.
§ 13. Section 510.50 of the criminal procedure law, as amended by
section 9 of part JJJ of chapter 59 of the laws of 2019, is amended and
related to the enforcement of a securing order.
§ 14. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
procedure law, as amended by section 10 of part JJJ of chapter 59 of the
laws of 2019, is amended to read as follows:
(b) The court (shall) may direct that the bail be posted in any one of
(three) two or more of the forms specified in subdivision one of this
section, designated in the alternative, and may designate different
amounts varying with-the forms except that one of the forms shall be
either an unsecured or partially secured surety bond, as selected by the
court.
§ 15. Section 530.10 of the criminal procedure law, as amended by
section 11 of part JJJ of chapter 59 of the laws of 2019, is amended and
related to orders of recognizance.
§ 16. Subdivision 4 of section 530.11 of the criminal procedure law, as
amended by section 12 of part JJJ of chapter 59 of the laws of 2019, is
amended to closer reflect original language prior to the bail & discov-
ery reforms enacted in the 2019-2020 New York State Budget.
§ 17. Subdivision 11 of section 530.12 of the criminal procedure law, as
amended by section 15 of part JJJ of chapter 59 of the laws of 2019is
amended to closer reflect original language prior to the bail & discov-
ery reforms enacted in the 2019-2020 New York State Budget.
§ 18. The opening paragraph of subdivision 1 of section 530.13 of the
criminal procedure law, as amended by section 14 of part JJJ of chapter
59 of the laws of 2019, is amended to read as follows:
§ 19. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
procedure law, as amended by section 13 of part JJJ of chapter 59 of the
laws of 2019, is amended to read as follows: (a) revoke an order of
recognizance(, release under non-monetary conditions) or bail and commit
the defendant to custody; or
§ 20. Section 530.20 of the criminal procedure law is REPEALED and a new
section 530.20 is added to closer reflect original language prior to the
bail & discovery reforms enacted in the .2019-2020 New York State Budg-
et.
§ 21-23. The section heading and subdivisions 1 and 2 of section 530.30,
530.40 and 530.45 of the criminal procedure law, are amended by section
17 of part JJJ of chapter 59 of the laws of 2019, are amended to closer
reflect original language prior to the bail & discovery reforms enacted
in the 2019-2020 New York State Budget.
§ 24. Subdivision 2-a of section 530.45 of the criminal procedure law is
REPEALED.
§ 25-28. Amend the criminal procedure law to closer reflect original
language prior to the bail & discovery reforms enacted in the 2019-2020
New York State Budget.
§ 29. Subdivision 3 of section 620.50 of the criminal procedure law, as
amended by section 24 of part JJJ of chapter 59 of the laws of 2019, is
amended to read as follows:
3. A material witness order must be executed as follows:
(a) If the bail is posted and approved by the court, the witness must,
as provided in subdivision (two) three of section 510.40 of this part,
be released and be permitted to remain at liberty; provided that, where
the bail is posted by a person other than the witness himself or
herself, he or she may not be so released except upon his or her signed
written consent thereto;
(b) If the bail is not posted, or if though posted it is not approved by
the court, the witness must, as provided in subdivision (two) three of
section 510.40 of this part, be committed to the custody of the sheriff.
§ 30. Article 245 of the criminal procedure law is REPEALED.
§ 31-39. The criminal procedure law is amended by adding a new article
240 all related to discovery
§ 40. Subdivision 4 of section 610.20 of the criminal procedure law is
REPEALED.
§ 41-43 are amended to closer reflect original language prior to the
bail & discovery reforms enacted in the 2019-2020 New York State Budget.
§ 44. Subdivision 5 of section 216 of.the judiciary law is REPEALED.
§ 45. Section 837-u of the executive law is REPEALED.
JUSTIFICATION:
This legislation is necessary to ensure public safety in New York State
by repealing the criminal justice reforms enacted in the 2019 -'20 State
Budget.
LEGISLATIVE HISTORY:
12/18/19: A.8855 referred to codes
01/08/20: A.8855 referred to codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately, provided, however that the
amendments to subdivision 9 of section 65.20 of the criminal procedure
law made by section thirty-two of this act shall not affect the repeal
of such section and shall be deemed repealed therewith.
STATE OF NEW YORK
________________________________________________________________________
7034
2023-2024 Regular Sessions
IN ASSEMBLY
May 10, 2023
___________
Introduced by M. of A. TANNOUSIS -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to providing
judges more discretion regarding securing orders and limiting the
lengths of certain orders; to repeal certain provisions of the crimi-
nal procedure law relating thereto; to amend the criminal procedure
law and the penal law, in relation to establishing new criminal
discovery rules; to repeal article 245 of the criminal procedure law
relating thereto; and to repeal certain provisions of the judiciary
law and the executive law relating to securing orders and criminal
discovery
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 150.10 of the criminal procedure
2 law is REPEALED.
3 § 2. Subdivision 1 of section 150.20 of the criminal procedure law, as
4 amended by section 1-a of part JJJ of chapter 59 of the laws of 2019,
5 subparagraph (viii) as amended and subparagraphs (ix), (x) and (xi) of
6 paragraph (b) as added by section 1 of subpart B of part UU of chapter
7 56 of the laws of 2022, is amended to read as follows:
8 1. [(a)] Whenever a police officer is authorized pursuant to section
9 140.10 of this title to arrest a person without a warrant for an offense
10 other than a class A, B, C or D felony or a violation of section 130.25,
11 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he [shall,
12 except as set out in paragraph (b) of this subdivision] or she may,
13 subject to the provisions of subdivisions three and four of section
14 150.40 of this [title] article, instead issue to and serve upon such
15 person an appearance ticket.
16 [(b) An officer is not required to issue an appearance ticket if:
17 (i) the person has one or more outstanding local criminal court or
18 superior court warrants;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09723-01-3
A. 7034 2
1 (ii) the person has failed to appear in court proceedings in the last
2 two years;
3 (iii) the person has been given a reasonable opportunity to make their
4 verifiable identity and a method of contact known, and has been unable
5 or unwilling to do so, so that a custodial arrest is necessary to
6 subject the individual to the jurisdiction of the court. For the
7 purposes of this section, an officer may rely on various factors to
8 determine a person's identity, including but not limited to personal
9 knowledge of such person, such person's self-identification, or photo-
10 graphic identification. There is no requirement that a person present
11 photographic identification in order to be issued an appearance ticket
12 in lieu of arrest where the person's identity is otherwise verifiable;
13 however, if offered by such person, an officer shall accept as evidence
14 of identity the following: a valid driver's license or non-driver iden-
15 tification card issued by the commissioner of motor vehicles, the feder-
16 al government, any United States territory, commonwealth or possession,
17 the District of Columbia, a state government or municipal government
18 within the United States or a provincial government of the dominion of
19 Canada; a valid passport issued by the United States government or any
20 other country; an identification card issued by the armed forces of the
21 United States; a public benefit card, as defined in paragraph (a) of
22 subdivision one of section 158.00 of the penal law;
23 (iv) the person is charged with a crime between members of the same
24 family or household, as defined in subdivision one of section 530.11 of
25 this chapter;
26 (v) the person is charged with a crime defined in article 130 of the
27 penal law;
28 (vi) it reasonably appears the person should be brought before the
29 court for consideration of issuance of an order of protection, pursuant
30 to section 530.13 of this chapter, based on the facts of the crime or
31 offense that the officer has reasonable cause to believe occurred;
32 (vii) the person is charged with a crime for which the court may
33 suspend or revoke his or her driver license;
34 (viii) it reasonably appears to the officer, based on the observed
35 behavior of the individual in the present contact with the officer and
36 facts regarding the person's condition that indicates a sign of distress
37 to such a degree that the person would face harm without immediate
38 medical or mental health care, that bringing the person before the court
39 would be in such person's interest in addressing that need; provided,
40 however, that before making the arrest, the officer shall make all
41 reasonable efforts to assist the person in securing appropriate
42 services;
43 (ix) the person is eighteen years of age or older and charged with
44 criminal possession of a weapon on school grounds as defined in section
45 265.01-a of the penal law;
46 (x) the person is eighteen years of age or older and charged with a
47 hate crime as defined in section 485.05 of the penal law; or
48 (xi) the offense is a qualifying offense pursuant to paragraph (t) of
49 subdivision four of section 510.10 of this chapter, or pursuant to para-
50 graph (t) of subdivision four of section 530.40 of this chapter.]
51 § 3. The criminal procedure law is amended by adding a new section
52 150.30 to read as follows:
53 § 150.30 Appearance ticket; issuance and service thereof after arrest
54 upon posting of pre-arraignment bail.
55 1. Issuance and service of an appearance ticket by a police officer
56 following an arrest without a warrant, as prescribed in subdivision two
A. 7034 3
1 of section 150.20 of this article, may be made conditional upon the
2 posting of a sum of money, known as pre-arraignment bail. In such case,
3 the bail becomes forfeit upon failure of such person to comply with the
4 directions of the appearance ticket. The person posting such bail must
5 complete and sign a form which states (a) the name, residential address
6 and occupation of each person posting cash bail; and (b) the title of
7 the criminal action or proceeding involved; and (c) the offense or
8 offenses which are the subjects of the action or proceeding involved,
9 and the status of such action or proceeding; and (d) the name of the
10 principal and the nature of his or her involvement in or connection with
11 such action or proceeding; and (e) the date of the principal's next
12 appearance in court; and (f) an acknowledgement that the cash bail will
13 be forfeited if the principal does not comply with the directions of the
14 appearance ticket; and (g) the amount of money posted as cash bail. Such
15 pre-arraignment bail may be posted as provided in subdivision two or
16 three of this section.
17 2. A desk officer in charge at a police station, county jail, or
18 police headquarters, or any of his or her superior officers, may in such
19 place, fix pre-arraignment bail, in an amount prescribed in this subdi-
20 vision, and upon the posting thereof must issue and serve an appearance
21 ticket upon the arrested person, give a receipt for the bail, and
22 release such person from custody. Such pre-arraignment bail may be fixed
23 in the following amounts:
24 (a) If the arrest was for a class E felony, any amount not exceeding
25 seven hundred fifty dollars.
26 (b) If the arrest was for a class A misdemeanor, any amount not
27 exceeding five hundred dollars.
28 (c) If the arrest was for a class B misdemeanor or an unclassified
29 misdemeanor, any amount not exceeding two hundred fifty dollars.
30 (d) If the arrest was for a petty offense, any amount not exceeding
31 one hundred dollars.
32 3. A police officer, who has arrested a person without a warrant
33 pursuant to subdivision two of section 150.20 of this article for a
34 traffic infraction, may, where he or she reasonably believes that such
35 arrested person is not licensed to operate a motor vehicle by this state
36 or any state covered by a reciprocal compact guaranteeing appearance as
37 is provided in section five hundred seventeen of the vehicle and traffic
38 law, fix pre-arraignment bail in the amount of fifty dollars; provided,
39 however, such bail shall be posted by means of a credit card or similar
40 device. Upon the posting thereof, said officer must issue and serve an
41 appearance ticket upon the arrested person, give a receipt for the bail,
42 and release such person from custody.
43 4. The chief administrator of the courts shall establish a system for
44 the posting of pre-arraignment bail by means of credit card or similar
45 device, as is provided by section two hundred twelve of the judiciary
46 law. The head of each police department or police force and of any state
47 department, agency, board, commission or public authority having police
48 officers who fix pre-arraignment bail as provided herein may elect to
49 use the system established by the chief administrator or may establish
50 such other system for the posting of pre-arraignment bail by means of
51 credit card or similar device as he or she may deem appropriate.
52 § 4. Subdivision 1 of section 150.40 of the criminal procedure law, as
53 amended by section 8 of part UU of chapter 56 of the laws of 2020, is
54 amended to read as follows:
55 1. An appearance ticket must be made returnable [at a date as soon as
56 possible, but in no event later than twenty days from the date of issu-
A. 7034 4
1 ance; or at the next scheduled session of the appropriate local criminal
2 court if such session is scheduled to occur more than twenty days from
3 the date of issuance; or at a later date, with the court's permission
4 due to enrollment in a pre-arraignment diversion program. The appearance
5 ticket shall be made returnable] in a local criminal court designated in
6 section 100.55 of this title as one with which an information for the
7 offense in question may be filed.
8 § 5. Section 150.80 of the criminal procedure law is REPEALED.
9 § 6. Subdivisions 3-a, 3-b, 21 and 22 of section 500.10 of the crimi-
10 nal procedure law are REPEALED.
11 § 7. Subdivisions 5, 6, 7 and 9 of section 500.10 of the criminal
12 procedure law, as amended by section 1-e of part JJJ of chapter 59 of
13 the laws of 2019, are amended to read as follows:
14 5. "Securing order" means an order of a court committing a principal
15 to the custody of the sheriff or fixing bail, [where authorized,] or
16 releasing the principal on the principal's own recognizance [or releas-
17 ing the principal under non-monetary conditions].
18 6. "Order of recognizance or bail" means a securing order releasing a
19 principal on the principal's own recognizance or [under non-monetary
20 conditions or, where authorized,] fixing bail.
21 7. "Application for recognizance or bail" means an application by a
22 principal that the court, instead of committing the principal to or
23 retaining the principal in the custody of the sheriff, either release
24 the principal on the principal's own recognizance[, release under non-
25 monetary conditions, or, where authorized,] or fix bail.
26 9. "Bail" means cash bail[,] or a bail bond [or money paid with a
27 credit card].
28 § 8. Section 510.10 of the criminal procedure law, as amended by
29 section 2 of part JJJ of chapter 59 of the laws of 2019, subdivision 1
30 as amended by section 1 of subpart C of part UU of chapter 56 of the
31 laws of 2022, subdivision 4 as amended by section 2 of part UU of chap-
32 ter 56 of the laws of 2020, and paragraphs (s) and (t) as amended and
33 paragraph (u) of subdivision 4 as added by section 2 of subpart B of
34 part UU of chapter 56 of the laws of 2022, is amended to read as
35 follows:
36 § 510.10 Securing order; when required; alternatives available[; stand-
37 ard to be applied].
38 [1.] When a principal, whose future court attendance at a criminal
39 action or proceeding is or may be required, initially comes under the
40 control of a court, such court shall, [in accordance with this title,]
41 by a securing order either release the principal on the principal's own
42 recognizance, [release the principal under non-monetary conditions,] or,
43 where authorized, fix bail or commit the principal to the custody of the
44 sheriff. [In all such cases, except where another type of securing order
45 is shown to be required by law, the court shall release the principal
46 pending trial on the principal's own recognizance, unless it is demon-
47 strated and the court makes an individualized determination that the
48 principal poses a risk of flight to avoid prosecution. If such a finding
49 is made, the court must select the least restrictive alternative and
50 condition or conditions that will reasonably assure the principal's
51 return to court. The court shall explain its choice of release, release
52 with conditions, bail or remand on the record or in writing. In making
53 its determination, the court must consider and take into account avail-
54 able information about the principal, including:
55 (a) The principal's activities and history;
56 (b) If the principal is a defendant, the charges facing the principal;
A. 7034 5
1 (c) The principal's criminal conviction record if any;
2 (d) The principal's record of previous adjudication as a juvenile
3 delinquent, as retained pursuant to section 354.1 of the family court
4 act, or, of pending cases where fingerprints are retained pursuant to
5 section 306.1 of such act, or a youthful offender, if any;
6 (e) The principal's previous record with respect to flight to avoid
7 criminal prosecution;
8 (f) If monetary bail is authorized, according to the restrictions set
9 forth in this title, the principal's individual financial circumstances,
10 and, in cases where bail is authorized, the principal's ability to post
11 bail without posing undue hardship, as well as his or her ability to
12 obtain a secured, unsecured, or partially secured bond;
13 (g) Any violation by the principal of an order of protection issued by
14 any court;
15 (h) The principal's history of use or possession of a firearm;
16 (i) Whether the charge is alleged to have caused serious harm to an
17 individual or group of individuals; and
18 (j) If the principal is a defendant, in the case of an application for
19 a securing order pending appeal, the merit or lack of merit of the
20 appeal.
21 2. A principal is entitled to representation by counsel under this
22 chapter in preparing an application for release, when a securing order
23 is being considered and when a securing order is being reviewed for
24 modification, revocation or termination. If the principal is financially
25 unable to obtain counsel, counsel shall be assigned to the principal.
26 3. In cases other than as described in subdivision four of this
27 section the court shall release the principal pending trial on the prin-
28 cipal's own recognizance, unless the court finds on the record or in
29 writing that release on the principal's own recognizance will not
30 reasonably assure the principal's return to court. In such instances,
31 the court shall release the principal under non-monetary conditions,
32 selecting the least restrictive alternative and conditions that will
33 reasonably assure the principal's return to court. The court shall
34 explain its choice of alternative and conditions on the record or in
35 writing.
36 4. Where the principal stands charged with a qualifying offense, the
37 court, unless otherwise prohibited by law, may in its discretion release
38 the principal pending trial on the principal's own recognizance or under
39 non-monetary conditions, fix bail, or, where the defendant is charged
40 with a qualifying offense which is a felony, the court may commit the
41 principal to the custody of the sheriff. A principal stands charged with
42 a qualifying offense for the purposes of this subdivision when he or she
43 stands charged with:
44 (a) a felony enumerated in section 70.02 of the penal law, other than
45 robbery in the second degree as defined in subdivision one of section
46 160.10 of the penal law, provided, however, that burglary in the second
47 degree as defined in subdivision two of section 140.25 of the penal law
48 shall be a qualifying offense only where the defendant is charged with
49 entering the living area of the dwelling;
50 (b) a crime involving witness intimidation under section 215.15 of the
51 penal law;
52 (c) a crime involving witness tampering under section 215.11, 215.12
53 or 215.13 of the penal law;
54 (d) a class A felony defined in the penal law, provided that for class
55 A felonies under article two hundred twenty of the penal law, only class
56 A-I felonies shall be a qualifying offense;
A. 7034 6
1 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
2 the penal law, or a felony sex offense defined in section 70.80 of the
3 penal law, or a crime involving incest as defined in section 255.25,
4 255.26 or 255.27 of such law, or a misdemeanor defined in article one
5 hundred thirty of such law;
6 (f) conspiracy in the second degree as defined in section 105.15 of
7 the penal law, where the underlying allegation of such charge is that
8 the defendant conspired to commit a class A felony defined in article
9 one hundred twenty-five of the penal law;
10 (g) money laundering in support of terrorism in the first degree as
11 defined in section 470.24 of the penal law; money laundering in support
12 of terrorism in the second degree as defined in section 470.23 of the
13 penal law; money laundering in support of terrorism in the third degree
14 as defined in section 470.22 of the penal law; money laundering in
15 support of terrorism in the fourth degree as defined in section 470.21
16 of the penal law; or a felony crime of terrorism as defined in article
17 four hundred ninety of the penal law, other than the crime defined in
18 section 490.20 of such law;
19 (h) criminal contempt in the second degree as defined in subdivision
20 three of section 215.50 of the penal law, criminal contempt in the first
21 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
22 the penal law or aggravated criminal contempt as defined in section
23 215.52 of the penal law, and the underlying allegation of such charge of
24 criminal contempt in the second degree, criminal contempt in the first
25 degree or aggravated criminal contempt is that the defendant violated a
26 duly served order of protection where the protected party is a member of
27 the defendant's same family or household as defined in subdivision one
28 of section 530.11 of this title;
29 (i) facilitating a sexual performance by a child with a controlled
30 substance or alcohol as defined in section 263.30 of the penal law, use
31 of a child in a sexual performance as defined in section 263.05 of the
32 penal law or luring a child as defined in subdivision one of section
33 120.70 of the penal law, promoting an obscene sexual performance by a
34 child as defined in section 263.10 of the penal law or promoting a sexu-
35 al performance by a child as defined in section 263.15 of the penal law;
36 (j) any crime that is alleged to have caused the death of another
37 person;
38 (k) criminal obstruction of breathing or blood circulation as defined
39 in section 121.11 of the penal law, strangulation in the second degree
40 as defined in section 121.12 of the penal law or unlawful imprisonment
41 in the first degree as defined in section 135.10 of the penal law, and
42 is alleged to have committed the offense against a member of the defend-
43 ant's same family or household as defined in subdivision one of section
44 530.11 of this title;
45 (l) aggravated vehicular assault as defined in section 120.04-a of the
46 penal law or vehicular assault in the first degree as defined in section
47 120.04 of the penal law;
48 (m) assault in the third degree as defined in section 120.00 of the
49 penal law or arson in the third degree as defined in section 150.10 of
50 the penal law, when such crime is charged as a hate crime as defined in
51 section 485.05 of the penal law;
52 (n) aggravated assault upon a person less than eleven years old as
53 defined in section 120.12 of the penal law or criminal possession of a
54 weapon on school grounds as defined in section 265.01-a of the penal
55 law;
A. 7034 7
1 (o) grand larceny in the first degree as defined in section 155.42 of
2 the penal law, enterprise corruption as defined in section 460.20 of the
3 penal law, or money laundering in the first degree as defined in section
4 470.20 of the penal law;
5 (p) failure to register as a sex offender pursuant to section one
6 hundred sixty-eight-t of the correction law or endangering the welfare
7 of a child as defined in subdivision one of section 260.10 of the penal
8 law, where the defendant is required to maintain registration under
9 article six-C of the correction law and designated a level three offen-
10 der pursuant to subdivision six of section one hundred sixty-eight-l of
11 the correction law;
12 (q) a crime involving bail jumping under section 215.55, 215.56 or
13 215.57 of the penal law, or a crime involving escaping from custody
14 under section 205.05, 205.10 or 205.15 of the penal law;
15 (r) any felony offense committed by the principal while serving a
16 sentence of probation or while released to post release supervision;
17 (s) a felony, where the defendant qualifies for sentencing on such
18 charge as a persistent felony offender pursuant to section 70.10 of the
19 penal law;
20 (t) any felony or class A misdemeanor involving harm to an identifi-
21 able person or property, or any charge of criminal possession of a
22 firearm as defined in section 265.01-b of the penal law, where such
23 charge arose from conduct occurring while the defendant was released on
24 his or her own recognizance, released under conditions, or had yet to be
25 arraigned after the issuance of a desk appearance ticket for a separate
26 felony or class A misdemeanor involving harm to an identifiable person
27 or property, or any charge of criminal possession of a firearm as
28 defined in section 265.01-b of the penal law, provided, however, that
29 the prosecutor must show reasonable cause to believe that the defendant
30 committed the instant crime and any underlying crime. For the purposes
31 of this subparagraph, any of the underlying crimes need not be a quali-
32 fying offense as defined in this subdivision. For the purposes of this
33 paragraph, "harm to an identifiable person or property" shall include
34 but not be limited to theft of or damage to property. However, based
35 upon a review of the facts alleged in the accusatory instrument, if the
36 court determines that such theft is negligible and does not appear to be
37 in furtherance of other criminal activity, the principal shall be
38 released on his or her own recognizance or under appropriate non-mone-
39 tary conditions; or
40 (u) criminal possession of a weapon in the third degree as defined in
41 subdivision three of section 265.02 of the penal law or criminal sale of
42 a firearm to a minor as defined in section 265.16 of the penal law.
43 5. Notwithstanding the provisions of subdivisions three and four of
44 this section, with respect to any charge for which bail or remand is not
45 ordered, and for which the court would not or could not otherwise
46 require bail or remand, a defendant may, at any time, request that the
47 court set bail in a nominal amount requested by the defendant in the
48 form specified in paragraph (a) of subdivision one of section 520.10 of
49 this title; if the court is satisfied that the request is voluntary, the
50 court shall set such bail in such amount.
51 6.] When a securing order is revoked or otherwise terminated in the
52 course of an uncompleted action or proceeding but the principal's future
53 court attendance still is or may be required and the principal is still
54 under the control of a court, a new securing order must be issued. When
55 the court revokes or otherwise terminates a securing order which commit-
56 ted the principal to the custody of the sheriff, the court shall give
A. 7034 8
1 written notification to the sheriff of such revocation or termination of
2 the securing order.
3 § 9. Section 510.20 of the criminal procedure law, as amended by
4 section 3 of part JJJ of chapter 59 of the laws of 2019, is amended to
5 read as follows:
6 § 510.20 Application for [a change in securing order] recognizance or
7 bail; making and determination thereof in general.
8 1. Upon any occasion when a court [has issued] is required to issue a
9 securing order with respect to a principal [and the], or at any time
10 when a principal is confined in the custody of the sheriff as a result
11 of the securing order or a previously issued securing order, the princi-
12 pal may make an application for recognizance[, release under non-mone-
13 tary conditions] or bail.
14 2. [(a) The principal is entitled to representation by counsel in the
15 making and presentation of such application. If the principal is finan-
16 cially unable to obtain counsel, counsel shall be assigned to the prin-
17 cipal.
18 (b)] Upon such application, the principal must be accorded an opportu-
19 nity to be heard[, present evidence] and to contend that an order of
20 recognizance[, release under non-monetary conditions] or[, where author-
21 ized,] bail must or should issue, that the court should release the
22 principal on the principal's own recognizance [or under non-monetary
23 conditions] rather than fix bail, and that if bail is [authorized and]
24 fixed it should be in a suggested amount and form.
25 § 10. Section 510.30 of the criminal procedure law, as amended by
26 section 5 of part JJJ of chapter 59 of the laws of 2019, and subdivision
27 1 as amended by section 2 of subpart C of part UU of chapter 56 of the
28 laws of 2022, is amended to read as follows:
29 § 510.30 Application for [securing order] recognizance or bail; rules of
30 law and criteria controlling determination.
31 1. Determinations of applications for recognizance or bail are not in
32 all cases discretionary but are subject to rules, prescribed in article
33 five hundred thirty of this title and other provisions of law relating
34 to specific kinds of criminal actions and proceedings, providing (a)
35 that in some circumstances such an application must as a matter of law
36 be granted, (b) that in others it must as a matter of law be denied and
37 the principal committed to or retained in the custody of the sheriff,
38 and (c) that in others the granting or denial thereof is a matter of
39 judicial discretion.
40 2. To the extent that the issuance of an order of recognizance or bail
41 and the terms thereof are matters of discretion rather than of law, an
42 application is determined on the basis of the following factors and
43 criteria:
44 (a) With respect to any principal, the court [in all cases, unless
45 otherwise provided by law,] must [impose the least restrictive] consider
46 the kind and degree of control or restriction that is necessary to
47 secure the principal's return to court when required. In determining
48 that matter, the court must, on the basis of available information,
49 consider and take into account [information about the principal that is
50 relevant to the principal's return to court, including:
51 (a) The principal's activities and history;
52 (b) If the principal is a defendant, the charges facing the principal;
53 (c)]:
54 (i) The principal's character, reputation, habits and mental condi-
55 tion;
56 (ii) the principal's employment and financial resources;
A. 7034 9
1 (iii) The principal's family ties and the length of his or her resi-
2 dence if any in the community;
3 (iv) The principal's criminal [conviction] record if any;
4 [(d)] (v) The principal's record of previous adjudication as a juve-
5 nile delinquent, as retained pursuant to section 354.2 of the family
6 court act, or, of pending cases where fingerprints are retained pursuant
7 to section 306.1 of such act, or a youthful offender, if any;
8 [(e)] (vi) The principal's previous record if any in responding to
9 court appearances when required or with respect to flight to avoid crim-
10 inal prosecution;
11 [(f) If monetary bail is authorized, according to the restrictions set
12 forth in this title, the principal's individual financial circumstances,
13 and, in cases where bail is authorized, the principal's ability to post
14 bail without posing undue hardship, as well as his or her ability to
15 obtain a secured, unsecured, or partially secured bond;
16 (g) any] (vii) Any violation by the principal of an order of
17 protection issued by any court;
18 [(h) the] (viii) The principal's history of use or possession of a
19 firearm;
20 [(i) whether] (ix) Whether the charge is alleged to have caused seri-
21 ous harm to an individual or group of individuals; [and
22 (j)] (x) If the principal is a defendant, the weight of the evidence
23 against him or her in the pending criminal action and any other factor
24 indicating probability or improbability of conviction; or, in the case
25 of an application for [a securing order] bail or recognizance pending
26 appeal, the merit or lack of merit of the appeal; and
27 (xi) If he or she is a defendant, the sentence which may be or has
28 been imposed upon conviction.
29 [2.] (b) Where the principal is a defendant-appellant in a pending
30 appeal from a judgment of conviction, the court must also consider the
31 likelihood of ultimate reversal of the judgment. A determination that
32 the appeal is palpably without merit alone justifies, but does not
33 require, a denial of the application, regardless of any determination
34 made with respect to the factors specified in paragraph (a) of this
35 subdivision [one of this section].
36 3. When bail or recognizance is ordered, the court shall inform the
37 principal, if the principal is a defendant charged with the commission
38 of a felony, that the release is conditional and that the court may
39 revoke the order of release and may be authorized to commit the princi-
40 pal to the custody of the sheriff in accordance with the provisions of
41 subdivision two of section 530.60 of this [chapter] title if the princi-
42 pal commits a subsequent felony while at liberty upon such order.
43 § 11. Section 510.40 of the criminal procedure law, as amended by
44 section 6 of part JJJ of chapter 59 of the laws of 2019 and paragraph
45 (c) of subdivision 4 as amended by section 7 of part UU of chapter 56 of
46 the laws of 2020, is amended to read as follows:
47 § 510.40 [Court notification to principal of conditions of release and
48 of alleged violations of conditions of release] Application
49 for recognizance or bail; determination thereof, form of
50 securing order and execution thereof.
51 1. An application for recognizance or bail must be determined by a
52 securing order which either:
53 (a) Grants the application and releases the principal on his or her
54 own recognizance; or
55 (b) Grants the application and fixes bail; or
A. 7034 10
1 (c) Denies the application and commits the principal to, or retains
2 him or her in, the custody of the sheriff.
3 2. Upon ordering that a principal be released on the principal's own
4 recognizance, [or released under non-monetary conditions, or, if bail
5 has been fixed, upon the posting of bail,] the court must direct the
6 principal to appear in the criminal action or proceeding involved when-
7 ever the principal's attendance may be required and to [be] render the
8 principal at all times amenable to the orders and processes of the
9 court. If such principal is in the custody of the sheriff or at liberty
10 upon bail at the time of the order, the court must direct that the prin-
11 cipal be discharged from such custody or, as the case may be, that the
12 principal's bail be exonerated.
13 [2.] 3. Upon the issuance of an order fixing bail[, where authorized,]
14 and upon the posting thereof, the court must examine the bail to deter-
15 mine whether it complies with the order. If it does, the court must, in
16 the absence of some factor or circumstance which in law requires or
17 authorizes disapproval thereof, approve the bail and must issue a
18 certificate of release, authorizing the principal to be at liberty, and,
19 if the principal is in the custody of the sheriff at the time, directing
20 the sheriff to discharge the principal therefrom. If the bail fixed is
21 not posted, or is not approved after being posted, the court must order
22 that the principal be committed to the custody of the sheriff. [In the
23 event of any such non-approval, the court shall explain promptly in
24 writing the reasons therefor.
25 3. Non-monetary conditions of release shall be individualized and
26 established in writing by the court. At future court appearances, the
27 court shall consider a lessening of conditions or modification of condi-
28 tions to a less burdensome form based on the principal's compliance with
29 such conditions of release. In the event of alleged non-compliance with
30 the conditions of release in an important respect, pursuant to this
31 subdivision, additional conditions may be imposed by the court, on the
32 record or in writing, only after notice of the facts and circumstances
33 of such alleged non-compliance, reasonable under the circumstances,
34 affording the principal and the principal's attorney and the people an
35 opportunity to present relevant, admissible evidence, relevant witnesses
36 and to cross-examine witnesses, and a finding by clear and convincing
37 evidence that the principal violated a condition of release in an impor-
38 tant respect. Following such a finding, in determining whether to impose
39 additional conditions for non-compliance, the court shall consider and
40 may select conditions consistent with the court's obligation to impose
41 the least restrictive condition or conditions that will reasonably
42 assure the defendant's return to court. The court shall explain on the
43 record or in writing the reasons for its determination and for any
44 changes to the conditions imposed.
45 4. (a) Electronic monitoring of a principal's location may be ordered
46 only if the court finds, after notice, an opportunity to be heard and an
47 individualized determination explained on the record or in writing, that
48 the defendant qualifies for electronic monitoring in accordance with
49 subdivision twenty-one of section 500.10 of this title, and no other
50 realistic non-monetary condition or set of non-monetary conditions will
51 suffice to reasonably assure a principal's return to court.
52 (b) The specific method of electronic monitoring of the principal's
53 location must be approved by the court. It must be the least restrictive
54 procedure and method that will reasonably assure the principal's return
55 to court, and unobtrusive to the greatest extent practicable.
A. 7034 11
1 (c) Electronic monitoring of the location of a principal may be
2 conducted only by a public entity under the supervision and control of a
3 county or municipality or a non-profit entity under contract to the
4 county, municipality or the state. A county or municipality shall be
5 authorized to enter into a contract with another county or municipality
6 in the state to monitor principals under non-monetary conditions of
7 release in its county, but counties, municipalities and the state shall
8 not contract with any private for-profit entity for such purposes.
9 Counties, municipalities and the state may contract with a private for-
10 profit entity to supply electronic monitoring devices or other items,
11 provided that any interaction with persons under electronic monitoring
12 or the data produced by such monitoring shall be conducted solely by
13 employees of a county, municipality, the state, or a non-profit entity
14 under contract with such county, municipality or the state.
15 (d) Electronic monitoring of a principal's location may be for a maxi-
16 mum period of sixty days, and may be renewed for such period, after
17 notice, an opportunity to be heard and a de novo, individualized deter-
18 mination in accordance with this subdivision, which shall be explained
19 on the record or in writing.
20 A defendant subject to electronic location monitoring under this
21 subdivision shall be considered held or confined in custody for purposes
22 of section 180.80 of this chapter and shall be considered committed to
23 the custody of the sheriff for purposes of section 170.70 of the chap-
24 ter, as applicable.
25 5. If a principal is released under non-monetary conditions, the court
26 shall, on the record and in an individualized written document provided
27 to the principal, notify the principal, in plain language and a manner
28 sufficiently clear and specific:
29 (a) of any conditions to which the principal is subject, to serve as a
30 guide for the principal's conduct; and
31 (b) that the possible consequences for violation of such a condition
32 may include revocation of the securing order and the ordering of a more
33 restrictive securing order.]
34 § 12. Sections 510.43 and 510.45 of the criminal procedure law are
35 REPEALED.
36 § 13. Section 510.50 of the criminal procedure law, as amended by
37 section 9 of part JJJ of chapter 59 of the laws of 2019, is amended to
38 read as follows:
39 § 510.50 Enforcement of securing order.
40 [1.] When the attendance of a principal confined in the custody of the
41 sheriff is required at the criminal action or proceeding at a particular
42 time and place, the court may compel such attendance by directing the
43 sheriff to produce the principal at such time and place. If the princi-
44 pal is at liberty on the principal's own recognizance [or non-monetary
45 conditions] or on bail, the principal's attendance may be achieved or
46 compelled by various methods, including notification and the issuance of
47 a bench warrant, prescribed by law in provisions governing such matters
48 with respect to the particular kind of action or proceeding involved.
49 [2. Except when the principal is charged with a new crime while at
50 liberty, absent relevant, credible evidence demonstrating that a princi-
51 pal's failure to appear for a scheduled court appearance was willful,
52 the court, prior to issuing a bench warrant for a failure to appear for
53 a scheduled court appearance, shall provide at least forty-eight hours
54 notice to the principal or the principal's counsel that the principal is
55 required to appear, in order to give the principal an opportunity to
56 appear voluntarily.]
A. 7034 12
1 § 14. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
2 procedure law, as amended by section 10 of part JJJ of chapter 59 of the
3 laws of 2019, is amended to read as follows:
4 (b) The court [shall] may direct that the bail be posted in any one of
5 [three] two or more of the forms specified in subdivision one of this
6 section, designated in the alternative, and may designate different
7 amounts varying with the forms[, except that one of the forms shall be
8 either an unsecured or partially secured surety bond, as selected by the
9 court].
10 § 15. Section 530.10 of the criminal procedure law, as amended by
11 section 11 of part JJJ of chapter 59 of the laws of 2019, is amended to
12 read as follows:
13 § 530.10 Order of recognizance [release under non-monetary conditions]
14 or bail; in general.
15 Under circumstances prescribed in this article, a court, upon applica-
16 tion of a defendant charged with or convicted of an offense, is required
17 [to issue a securing order] or authorized to order bail or recognizance
18 for the release or prospective release of such defendant during the
19 pendency of either:
20 1. A criminal action based upon such charge; or
21 2. An appeal taken by the defendant from a judgment of conviction or a
22 sentence or from an order of an intermediate appellate court affirming
23 or modifying a judgment of conviction or a sentence.
24 § 16. Subdivision 4 of section 530.11 of the criminal procedure law,
25 as amended by section 12 of part JJJ of chapter 59 of the laws of 2019,
26 is amended to read as follows:
27 4. When a person is arrested for an alleged family offense or an
28 alleged violation of an order of protection or temporary order of
29 protection or arrested pursuant to a warrant issued by the supreme or
30 family court, and the supreme or family court, as applicable, is not in
31 session, such person shall be brought before a local criminal court in
32 the county of arrest or in the county in which such warrant is return-
33 able pursuant to article one hundred twenty of this chapter. Such local
34 criminal court may issue any order authorized under subdivision eleven
35 of section 530.12 of this article, section one hundred fifty-four-d or
36 one hundred fifty-five of the family court act or subdivision three-b of
37 section two hundred forty or subdivision two-a of section two hundred
38 fifty-two of the domestic relations law, in addition to discharging
39 other arraignment responsibilities as set forth in this chapter. In
40 making such order, the local criminal court shall consider [de novo] the
41 bail recommendation [and securing order], if any, made by the supreme or
42 family court as indicated on the warrant or certificate of warrant.
43 Unless the petitioner or complainant requests otherwise, the court, in
44 addition to scheduling further criminal proceedings, if any, regarding
45 such alleged family offense or violation allegation, shall make such
46 matter returnable in the supreme or family court, as applicable, on the
47 next day such court is in session.
48 § 17. Subdivision 11 of section 530.12 of the criminal procedure law,
49 as amended by section 15 of part JJJ of chapter 59 of the laws of 2019,
50 is amended to read as follows:
51 11. If a defendant is brought before the court for failure to obey any
52 lawful order issued under this section, or an order of protection issued
53 by a court of competent jurisdiction in another state, territorial or
54 tribal jurisdiction, and if, after hearing, the court is satisfied by
55 competent proof that the defendant has willfully failed to obey any such
56 order, the court may:
A. 7034 13
1 (a) revoke an order of recognizance [or release under non-monetary
2 conditions] or revoke an order of bail or order forfeiture of such bail
3 and commit the defendant to custody; or
4 (b) restore the case to the calendar when there has been an adjourn-
5 ment in contemplation of dismissal and commit the defendant to custody;
6 or
7 (c) revoke a conditional discharge in accordance with section 410.70
8 of this chapter and impose probation supervision or impose a sentence of
9 imprisonment in accordance with the penal law based on the original
10 conviction; or
11 (d) revoke probation in accordance with section 410.70 of this chapter
12 and impose a sentence of imprisonment in accordance with the penal law
13 based on the original conviction. In addition, if the act which consti-
14 tutes the violation of the order of protection or temporary order of
15 protection is a crime or a violation the defendant may be charged with
16 and tried for that crime or violation.
17 § 18. The opening paragraph of subdivision 1 of section 530.13 of the
18 criminal procedure law, as amended by section 14 of part JJJ of chapter
19 59 of the laws of 2019, is amended to read as follows:
20 When any criminal action is pending, and the court has not issued a
21 temporary order of protection pursuant to section 530.12 of this arti-
22 cle, the court, in addition to the other powers conferred upon it by
23 this chapter, may for good cause shown issue a temporary order of
24 protection in conjunction with any securing order committing the defend-
25 ant to the custody of the sheriff or as a condition of a pre-trial
26 release, or as a condition of release on bail or an adjournment in
27 contemplation of dismissal. In addition to any other conditions, such an
28 order may require that the defendant:
29 § 19. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
30 procedure law, as amended by section 13 of part JJJ of chapter 59 of the
31 laws of 2019, is amended to read as follows:
32 (a) revoke an order of recognizance[, release under non-monetary
33 conditions] or bail and commit the defendant to custody; or
34 § 20. Section 530.20 of the criminal procedure law is REPEALED and a
35 new section 530.20 is added to read as follows:
36 § 530.20 Order of recognizance or bail; by local criminal court when
37 action is pending therein.
38 When a criminal action is pending in a local criminal court, such
39 court, upon application of a defendant, must or may order recognizance
40 or bail as follows:
41 1. When the defendant is charged, by information, simplified informa-
42 tion, prosecutor's information or misdemeanor complaint, with an offense
43 or offenses of less than felony grade only, the court must order recog-
44 nizance or bail.
45 2. When the defendant is charged, by felony complaint, with a felony,
46 the court may, in its discretion, order recognizance or bail except as
47 otherwise provided in this subdivision:
48 (a) A city court, a town court or a village court may not order recog-
49 nizance or bail when (i) the defendant is charged with a class A felony,
50 or (ii) it appears that the defendant has two previous felony
51 convictions;
52 (b) No local criminal court may order recognizance or bail with
53 respect to a defendant charged with a felony unless and until:
54 (i) The district attorney has been heard in the matter or, after know-
55 ledge or notice of the application and reasonable opportunity to be
A. 7034 14
1 heard, has failed to appear at the proceeding or has otherwise waived
2 his or her right to do so; and
3 (ii) The court has been furnished with a report of the division of
4 criminal justice services concerning the defendant's criminal record if
5 any or with a police department report with respect to the defendant's
6 prior arrest record. If neither report is available, the court, with the
7 consent of the district attorney, may dispense with this requirement;
8 provided, however, that in an emergency, including but not limited to a
9 substantial impairment in the ability of such division or police depart-
10 ment to timely furnish such report, such consent shall not be required
11 if, for reasons stated on the record, the court deems it unnecessary.
12 When the court has been furnished with any such report or record, it
13 shall furnish a copy thereof to counsel for the defendant or, if the
14 defendant is not represented by counsel, to the defendant.
15 § 21. The section heading and subdivisions 1 and 2 of section 530.30
16 of the criminal procedure law, as amended by section 17 of part JJJ of
17 chapter 59 of the laws of 2019, are amended to read as follows:
18 Order of recognizance[, release under non-monetary conditions] or
19 bail; by superior court judge when action is pending in local criminal
20 court.
21 1. When a criminal action is pending in a local criminal court, other
22 than one consisting of a superior court judge sitting as such, a judge
23 of a superior court holding a term thereof in the county, upon applica-
24 tion of a defendant, may order recognizance[, release under non-monetary
25 conditions] or[, where authorized,] bail when such local criminal court:
26 (a) Lacks authority to issue such an order, pursuant to the relevant
27 provisions of section 530.20 of this article; or
28 (b) Has denied an application for recognizance[, release under non-
29 monetary conditions] or bail; or
30 (c) Has fixed bail[, where authorized,] which is excessive[; or
31 (d) Has set a securing order of release under non-monetary conditions
32 which are more restrictive than necessary to reasonably assure the
33 defendant's return to court].
34 In such case, such superior court judge may vacate the order of such
35 local criminal court and release the defendant on his or her own recog-
36 nizance [or under non-monetary conditions,] or [where authorized,] fix
37 bail in a lesser amount or in a less burdensome form[, whichever are the
38 least restrictive alternative and conditions that will reasonably assure
39 the defendant's return to court. The court shall explain its choice of
40 alternative and conditions on the record or in writing].
41 2. Notwithstanding the provisions of subdivision one of this section,
42 when the defendant is charged with a felony in a local criminal court, a
43 superior court judge may not order recognizance, [release under non-mon-
44 etary conditions] or[, where authorized,] bail unless and until the
45 district attorney has had an opportunity to be heard in the matter and
46 such judge [and counsel for the defendant have] has been furnished with
47 a report as described in subparagraph (ii) of paragraph (b) of subdivi-
48 sion two of section 530.20 of this article.
49 § 22. Section 530.40 of the criminal procedure law is REPEALED and a
50 new section 530.40 is added to read as follows:
51 § 530.40 Order of recognizance or bail; by superior court when action is
52 pending therein.
53 When a criminal action is pending in a superior court, such court,
54 upon application of a defendant, must or may order recognizance or bail
55 as follows:
A. 7034 15
1 1. When the defendant is charged with an offense or offenses of less
2 than felony grade only, the court must order recognizance or bail.
3 2. When the defendant is charged with a felony, the court may, in its
4 discretion, order recognizance or bail. In any such case in which an
5 indictment (a) has resulted from an order of a local criminal court
6 holding the defendant for the action of the grand jury, or (b) was filed
7 at a time when a felony complaint charging the same conduct was pending
8 in a local criminal court, and in which such local criminal court or a
9 superior court judge has issued an order of recognizance or bail which
10 is still effective, the superior court's order may be in the form of a
11 direction continuing the effectiveness of the previous order.
12 3. Notwithstanding the provisions of subdivision two of this section,
13 a superior court may not order recognizance or bail, or permit a defend-
14 ant to remain at liberty pursuant to an existing order, after the
15 defendant has been convicted of either: (a) a class A felony or (b) any
16 class B or class C felony as defined in article one hundred thirty of
17 the penal law committed or attempted to be committed by a person eigh-
18 teen years of age or older against a person less than eighteen years of
19 age. In either case the court must commit or remand the defendant to the
20 custody of the sheriff.
21 4. Notwithstanding the provisions of subdivision two of this section,
22 a superior court may not order recognizance or bail when the defendant
23 is charged with a felony unless and until the district attorney has had
24 an opportunity to be heard in the matter and such court has been
25 furnished with a report as described in subparagraph (ii) of paragraph
26 (b) of subdivision two of section 530.20 of this article.
27 § 23. Subdivision 1 of section 530.45 of the criminal procedure law,
28 as amended by section 19 of part JJJ of chapter 59 of the laws of 2019,
29 is amended to read as follows:
30 1. When the defendant is at liberty in the course of a criminal action
31 as a result of a prior order of recognizance[, release under non-mone-
32 tary conditions] or bail and the court revokes such order and then[,
33 where authorized,] either fixes no bail or fixes bail in a greater
34 amount or in a more burdensome form than was previously fixed and
35 remands or commits defendant to the custody of the sheriff, [or issues a
36 more restrictive securing order,] a judge designated in subdivision two
37 of this section, upon application of the defendant following conviction
38 of an offense other than a class A felony or a class B or class C felony
39 offense as defined in article one hundred thirty of the penal law
40 committed or attempted to be committed by a person eighteen years of age
41 or older against a person less than eighteen years of age, and before
42 sentencing, may issue a securing order and either release the defendant
43 on the defendant's own recognizance, [release the defendant under non-
44 monetary conditions,] or[, where authorized,] fix bail or fix bail in a
45 lesser amount or in a less burdensome form[, or issue a less restrictive
46 securing order,] than fixed by the court in which the conviction was
47 entered.
48 § 24. Subdivision 2-a of section 530.45 of the criminal procedure law
49 is REPEALED.
50 § 25. Section 530.50 of the criminal procedure law, as amended by
51 chapter 264 of the laws of 2003, subdivision 1 as designated and subdi-
52 vision 2 as added by section 10 of part UU of chapter 56 of the laws of
53 2020, and subdivision 3 as added by section 4 of subpart D of part UU of
54 chapter 56 of the laws of 2022, is amended to read as follows:
55 § 530.50 Order of recognizance or bail; during pendency of appeal.
A. 7034 16
1 1. A judge who is otherwise authorized pursuant to section 460.50 or
2 section 460.60 of this chapter to issue an order of recognizance or bail
3 pending the determination of an appeal, may do so unless the defendant
4 received a class A felony sentence or a sentence for any class B or
5 class C felony offense defined in article one hundred thirty of the
6 penal law committed or attempted to be committed by a person eighteen
7 years of age or older against a person less than eighteen years of age.
8 2. [Notwithstanding the provisions of subdivision four of section
9 510.10, paragraph (b) of subdivision one of section 530.20 and subdivi-
10 sion four of section 530.40 of this title, when a defendant charged with
11 an offense that is not such a qualifying offense applies, pending deter-
12 mination of an appeal, for an order of recognizance or release on non-
13 monetary conditions, where authorized, or fixing bail, a judge identi-
14 fied in subdivision two of section 460.50 or paragraph (a) of
15 subdivision one of section 460.60 of this chapter may, in accordance
16 with law, and except as otherwise provided by law, issue a securing
17 order: releasing the defendant on the defendant's own recognizance or
18 under non-monetary conditions where authorized, fixing bail, or remand-
19 ing the defendant to the custody of the sheriff where authorized.
20 3.] Where an appeal by the people has been taken from an order
21 dismissing one or more counts of an accusatory instrument for failure to
22 comply with a discovery order pursuant to subdivision twelve of section
23 450.20 of this chapter and the defendant is charged with a qualifying
24 offense in the remaining counts in the accusatory instrument, pending
25 determination of an appeal, the defendant may apply for an order of
26 recognizance or [release on non-monetary conditions, where authorized,
27 or] fixing bail. A judge identified in subdivision two of section 460.50
28 of this chapter or paragraph (a) of subdivision one of section 460.60 of
29 this chapter may, in accordance with law, and except as otherwise
30 provided by law, issue a securing order releasing the defendant on the
31 defendant's own recognizance [or under non-monetary conditions where
32 authorized], fixing bail, or remanding the defendant to the custody of
33 the sheriff where authorized.
34 § 26. Section 530.60 of the criminal procedure law, as amended by
35 section 20 of part JJJ of chapter 59 of the laws of 2019, is amended to
36 read as follows:
37 § 530.60 [Certain modifications of a securing order] Order of recogni-
38 zance or bail; revocation thereof.
39 1. Whenever in the course of a criminal action or proceeding a defend-
40 ant is at liberty as a result of an order of recognizance[, release
41 under non-monetary conditions] or bail issued pursuant to this chapter,
42 and the court considers it necessary to review such order, [whether due
43 to a motion by the people or otherwise,] the court may, and [except as
44 provided in subdivision two of section 510.50 of this title concerning a
45 failure to appear in court,] by a bench warrant if necessary, require
46 the defendant to appear before the court. Upon such appearance, the
47 court, for good cause shown, may revoke the order of recognizance[,
48 release under non-monetary conditions,] or bail. If the defendant is
49 entitled to recognizance[, release under non-monetary conditions,] or
50 bail as a matter of right, the court must issue another such order. If
51 the defendant is not, the court may either issue such an order or commit
52 the defendant to the custody of the sheriff in accordance with this
53 section.
54 Where the defendant is committed to the custody of the sheriff and is
55 held on a felony complaint, a new period as provided in section 180.80
A. 7034 17
1 of this chapter shall commence to run from the time of the defendant's
2 commitment under this subdivision.
3 2. (a) Whenever in the course of a criminal action or proceeding a
4 defendant charged with the commission of a felony is at liberty as a
5 result of an order of recognizance, [release under non-monetary condi-
6 tions] or bail issued pursuant to this article it shall be grounds for
7 revoking such order that the court finds reasonable cause to believe the
8 defendant committed one or more specified class A or violent felony
9 offenses or intimidated a victim or witness in violation of section
10 215.15, 215.16 or 215.17 of the penal law while at liberty.
11 [(b) Except as provided in paragraph (a) of this subdivision or any
12 other law, whenever in the course of a criminal action or proceeding a
13 defendant charged with the commission of an offense is at liberty as a
14 result of an order of recognizance, release under non-monetary condi-
15 tions or bail issued pursuant to this article it shall be grounds for
16 revoking such order and fixing bail in such criminal action or proceed-
17 ing when the court has found, by clear and convincing evidence, that the
18 defendant:
19 (i) persistently and willfully failed to appear after notice of sched-
20 uled appearances in the case before the court; or
21 (ii) violated an order of protection in the manner prohibited by
22 subdivision (b), (c) or (d) of section 215.51 of the penal law while at
23 liberty; or
24 (iii) stands charged in such criminal action or proceeding with a
25 misdemeanor or violation and, after being so charged, intimidated a
26 victim or witness in violation of section 215.15, 215.16 or 215.17 of
27 the penal law or tampered with a witness in violation of section 215.11,
28 215.12 or 215.13 of the penal law, law while at liberty; or
29 (iv) stands charged in such action or proceeding with a felony and,
30 after being so charged, committed a felony while at liberty.
31 (c)] Before revoking an order of recognizance[, release under non-mon-
32 etary conditions,] or bail pursuant to this subdivision, the court must
33 hold a hearing and shall receive any relevant, admissible evidence not
34 legally privileged. The defendant may cross-examine witnesses and may
35 present relevant, admissible evidence on his own behalf. Such hearing
36 may be consolidated with, and conducted at the same time as, a felony
37 hearing conducted pursuant to article one hundred eighty of this chap-
38 ter. A transcript of testimony taken before the grand jury upon presen-
39 tation of the subsequent offense shall be admissible as evidence during
40 the hearing. The district attorney may move to introduce grand jury
41 testimony of a witness in lieu of that witness' appearance at the hear-
42 ing.
43 [(d)] (b) Revocation of an order of recognizance[, release under non-
44 monetary conditions] or bail and [a new securing order fixing bail or]
45 commitment[, as specified in this paragraph and] pursuant to this subdi-
46 vision shall be for the following periods, either:
47 [(i) Under paragraph (a) of this subdivision, revocation of the order
48 of recognizance, release under non-monetary conditions or, as the case
49 may be, bail, and a new securing order fixing bail or committing the
50 defendant to the custody of the sheriff shall be as follows:
51 (A)] (i) For a period not to exceed ninety days exclusive of any peri-
52 ods of adjournment requested by the defendant; or
53 [(B)] (ii) Until the charges contained within the accusatory instru-
54 ment have been reduced or dismissed such that no count remains which
55 charges the defendant with commission of a felony; or
A. 7034 18
1 [(C)] (iii) Until reduction or dismissal of the charges contained
2 within the accusatory instrument charging the subsequent offense such
3 that no count remains which charges the defendant with commission of a
4 class A or violent felony offense.
5 Upon expiration of any of the three periods specified within this
6 [subparagraph] paragraph, whichever is shortest, the court may grant or
7 deny release upon an order of bail or recognizance in accordance with
8 the provisions of this article. Upon conviction to an offense the
9 provisions of this article [five hundred thirty of this chapter] shall
10 apply[; and
11 (ii) Under paragraph (b) of this subdivision, revocation of the order
12 of recognizance, release under non-monetary conditions or, as the case
13 may be, bail shall result in the issuance of a new securing order which
14 may, if otherwise authorized by law, permit the principal's release on
15 recognizance or release under non-monetary conditions, but shall also
16 render the defendant eligible for an order fixing bail provided, howev-
17 er, that in accordance with the principles in this title the court must
18 select the least restrictive alternative and condition or conditions
19 that will reasonably assure the principal's return to court. Nothing in
20 this subparagraph shall be interpreted as shortening the period of
21 detention, or requiring or authorizing any less restrictive form of a
22 securing order, which may be imposed pursuant to any other law].
23 [(e)] (c) Notwithstanding the provisions of paragraph (a) [or (b)] of
24 this subdivision a defendant, against whom a felony complaint has been
25 filed which charges the defendant with commission of a class A or
26 violent felony offense [or violation of section 215.15, 215.16 or 215.17
27 of the penal law] committed while he or she was at liberty as specified
28 therein, may be committed to the custody of the sheriff pending a revo-
29 cation hearing for a period not to exceed seventy-two hours. An addi-
30 tional period not to exceed seventy-two hours may be granted by the
31 court upon application of the district attorney upon a showing of good
32 cause or where the failure to commence the hearing was due to the
33 defendant's request or occurred with his or her consent. Such good cause
34 must consist of some compelling fact or circumstance which precluded
35 conducting the hearing within the initial prescribed period.
36 § 27. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
37 procedure law, as amended by chapter 435 of the laws of 2021, is amended
38 to read as follows:
39 (a) If at any time during the defendant's participation in the judi-
40 cial diversion program, the court has reasonable grounds to believe that
41 the defendant has violated a release condition [in an important respect]
42 or has [willfully] failed to appear before the court as requested, the
43 court [except as provided in subdivision two of section 510.50 of this
44 chapter regarding a failure to appear,] shall direct the defendant to
45 appear or issue a bench warrant to a police officer or an appropriate
46 peace officer directing him or her to take the defendant into custody
47 and bring the defendant before the court without unnecessary delay;
48 provided, however, that under no circumstances shall a defendant who
49 requires treatment for opioid use be deemed to have violated a release
50 condition on the basis of his or her participation in medically
51 prescribed drug treatments under the care of a health care professional
52 licensed or certified under title eight of the education law, acting
53 within his or her lawful scope of practice. The [relevant] provisions of
54 subdivision one of section 530.60 of this chapter relating to [issuance
55 of securing orders] revocation of recognizance or bail shall apply to
56 such proceedings under this subdivision.
A. 7034 19
1 § 28. Section 410.60 of the criminal procedure law, as amended by
2 section 23 of part JJJ of chapter 59 of the laws of 2019, is amended to
3 read as follows:
4 § 410.60 Appearance before court.
5 A person who has been taken into custody pursuant to section 410.40 or
6 [section] 410.50 of this article for violation of a condition of a
7 sentence of probation or a sentence of conditional discharge must forth-
8 with be brought before the court that imposed the sentence. Where a
9 violation of probation petition and report has been filed and the person
10 has not been taken into custody nor has a warrant been issued, an
11 initial court appearance shall occur within ten business days of the
12 court's issuance of a notice to appear. If the court has reasonable
13 cause to believe that such person has violated a condition of the
14 sentence, it may commit such person to the custody of the sheriff[,] or
15 fix bail[, release such person under non-monetary conditions] or release
16 such person on such person's own recognizance for future appearance at a
17 hearing to be held in accordance with section 410.70 of this article. If
18 the court does not have reasonable cause to believe that such person has
19 violated a condition of the sentence, it must direct that such person be
20 released.
21 § 29. Subdivision 3 of section 620.50 of the criminal procedure law,
22 as amended by section 24 of part JJJ of chapter 59 of the laws of 2019,
23 is amended to read as follows:
24 3. A material witness order must be executed as follows:
25 (a) If the bail is posted and approved by the court, the witness must,
26 as provided in subdivision [two] three of section 510.40 of this part,
27 be released and be permitted to remain at liberty; provided that, where
28 the bail is posted by a person other than the witness himself or
29 herself, he or she may not be so released except upon his or her signed
30 written consent thereto;
31 (b) If the bail is not posted, or if though posted it is not approved
32 by the court, the witness must, as provided in subdivision [two] three
33 of section 510.40 of this part, be committed to the custody of the sher-
34 iff.
35 § 30. Article 245 of the criminal procedure law is REPEALED.
36 § 31. The criminal procedure law is amended by adding a new article
37 240 to read as follows:
38 ARTICLE 240
39 DISCOVERY
40 Section 240.10 Definition of terms.
41 240.20 Upon demand of defendant.
42 240.30 Upon demand of prosecutor.
43 240.35 Refusal of demand.
44 240.40 Upon court order.
45 240.43 Disclosure of prior uncharged criminal, vicious or immor-
46 al acts.
47 240.44 Upon pre-trial hearing.
48 240.45 Upon trial, of prior statements and criminal history of
49 witnesses.
50 240.50 Protective orders.
51 240.60 Continuing duty to disclose.
52 240.70 Sanctions; fees.
53 240.75 Certain violations.
54 240.80 When demand, refusal and compliance made.
55 240.90 Motion procedure.
A. 7034 20
1 § 240.10 Definition of terms. The following definitions are applicable
2 to this article:
3 1. "Demand to produce" means a written notice served by and on a
4 party to a criminal action, without leave of the court, demanding to
5 inspect property pursuant to this article and giving reasonable notice
6 of the time at which the demanding party wishes to inspect the property
7 designated.
8 2. "Attorneys' work product" means property to the extent that it
9 contains the opinions, theories or conclusions of the prosecutor,
10 defense counsel or members of their legal staffs.
11 3. "Property" means any existing tangible personal or real property,
12 including, but not limited to, books, records, reports, memoranda,
13 papers, photographs, tapes or other electronic recordings, articles of
14 clothing, fingerprints, blood samples, fingernail scrapings or
15 handwriting specimens, but excluding attorneys' work product.
16 4. "At the trial" means as part of the people's or the defendant's
17 direct case.
18 § 240.20 Upon demand of defendant.
19 1. Except to the extent protected by court order, upon a demand to
20 produce by a defendant against whom an indictment, superior court
21 information, prosecutor's information, information, or simplified
22 information charging a misdemeanor is pending, the prosecutor shall
23 disclose to the defendant and make available for inspection,
24 photographing, copying or testing, the following property:
25 (a) Any written, recorded or oral statement of the defendant, and of
26 a co-defendant to be tried jointly, made, other than in the course of
27 the criminal transaction, to a public servant engaged in law enforcement
28 activity or to a person then acting under his direction or in
29 cooperation with him or her;
30 (b) Any transcript of testimony relating to the criminal action or
31 proceeding pending against the defendant, given by the defendant, or by
32 a co-defendant to be tried jointly, before any grand jury;
33 (c) Any written report or document, or portion thereof, concerning a
34 physical or mental examination, or scientific test or experiment,
35 relating to the criminal action or proceeding which was made by, or at
36 the request or direction of a public servant engaged in law enforcement
37 activity, or which was made by a person whom the prosecutor intends to
38 call as a witness at trial, or which the people intend to introduce at
39 trial;
40 (d) Any photograph or drawing relating to the criminal action or
41 proceeding which was made or completed by a public servant engaged in
42 law enforcement activity, or which was made by a person whom the
43 prosecutor intends to call as a witness at trial, or which the people
44 intend to introduce at trial;
45 (e) Any photograph, photocopy or other reproduction made by or at the
46 direction of a police officer, peace officer or prosecutor of any
47 property prior to its release pursuant to the provisions of section
48 450.10 of the penal law, irrespective of whether the people intend to
49 introduce at trial the property or the photograph, photocopy or other
50 reproduction;
51 (f) Any other property obtained from the defendant, or a co-defendant
52 to be tried jointly;
53 (g) Any tapes or other electronic recordings which the prosecutor
54 intends to introduce at trial, irrespective of whether such recording
55 was made during the course of the criminal transaction;
A. 7034 21
1 (h) Anything required to be disclosed, prior to trial, to the
2 defendant by the prosecutor, pursuant to the constitution of this state
3 or of the United States;
4 (i) The approximate date, time and place of the offense charged and of
5 defendant's arrest;
6 (j) In any prosecution under section 156.05 or 156.10 of the penal
7 law, the time, place and manner of notice given pursuant to subdivi-
8 sion six of section 156.00 of such law; and
9 (k) In any prosecution commenced in a manner set forth in this
10 subdivision alleging a violation of the vehicle and traffic law, in
11 addition to any material required to be disclosed pursuant to this
12 article, any other provision of law, or the constitution of this state
13 or of the United States, any written report or document, or portion
14 thereof, concerning a physical examination, a scientific test or
15 experiment, including the most recent record of inspection, or
16 calibration or repair of machines or instruments utilized to perform
17 such scientific tests or experiments and the certification certificate,
18 if any, held by the operator of the machine or instrument, which tests
19 or examinations were made by or at the request or direction of a public
20 servant engaged in law enforcement activity or which was made by a
21 person whom the prosecutor intends to call as a witness at trial, or
22 which the people intend to introduce at trial.
23 2. The prosecutor shall make a diligent, good faith effort to
24 ascertain the existence of demanded property and to cause such property
25 to be made available for discovery where it exists but is not within the
26 prosecutor's possession, custody or control; provided, that the
27 prosecutor shall not be required to obtain by subpoena duces tecum
28 demanded material which the defendant may thereby obtain.
29 § 240.30 Upon demand of prosecutor.
30 1. Except to the extent protected by court order, upon a demand to
31 produce by the prosecutor, a defendant against whom an indictment,
32 superior court information, prosecutor's information, information, or
33 simplified information charging a misdemeanor is pending shall disclose
34 and make available for inspection, photographing, copying or testing,
35 subject to constitutional limitations:
36 (a) any written report or document, or portion thereof, concerning a
37 physical or mental examination, or scientific test, experiment, or
38 comparisons, made by or at the request or direction of, the defendant,
39 if the defendant intends to introduce such report or document at trial,
40 or if the defendant has filed a notice of intent to proffer psychiatric
41 evidence and such report or document relates thereto, or if such report
42 or document was made by a person, other than defendant, whom defendant
43 intends to call as a witness at trial; and
44 (b) any photograph, drawing, tape or other electronic recording which
45 the defendant intends to introduce at trial.
46 2. The defense shall make a diligent good faith effort to make such
47 property available for discovery where it exists but the property is not
48 within its possession, custody or control, provided, that the defendant
49 shall not be required to obtain by subpoena duces tecum demanded
50 material that the prosecutor may thereby obtain.
51 § 240.35 Refusal of demand.
52 Notwithstanding the provisions of sections 240.20 and 240.30 of this
53 article, the prosecutor or the defendant, as the case may be, may refuse
54 to disclose any information which he or she reasonably believes is not
55 discoverable by a demand to produce, pursuant to section 240.20 or
56 240.30 of this article as the case may be, or for which he or she
A. 7034 22
1 reasonably believes a protective order would be warranted. Such refusal
2 shall be made in a writing, which shall set forth the grounds of such
3 belief as fully as possible, consistent with the objective of the
4 refusal. The writing shall be served upon the demanding party and a copy
5 shall be filed with the court.
6 § 240.40 Upon court order.
7 Notwithstanding the provisions of sections 240.20 and 240.30 of
8 this article, the prosecutor or the defendant, as the case may be, may
9 refuse to disclose any information which he or she reasonably believes
10 is not discoverable by a demand to produce, pursuant to section 240.20
11 or 240.30 of this article as the case may be, or for which he or she
12 reasonably believes a protective order would be warranted. Such refusal
13 shall be made in a writing, which shall set forth the grounds of such
14 belief as fully as possible, consistent with the objective of the
15 refusal. The writing shall be served upon the demanding party and a
16 copy shall be filed with the court.
17 § 240.43 Disclosure of prior uncharged criminal, vicious or immoral
18 acts.
19 1. Upon motion of a defendant against whom an indictment, superior
20 court information, prosecutor's information, information, or simplified
21 information charging a misdemeanor is pending, the court in which such
22 accusatory instrument is pending: (a) must order discovery as to any
23 material not disclosed upon a demand pursuant to section 240.20
24 of this article, if it finds that the prosecutor's refusal to disclose
25 such material is not justified; (b) must, unless it is satisfied that
26 the people have shown good cause why such an order should not be
27 issued, order discovery or any other order authorized by subdivision
28 one of section 240.70 of this article as to any material not disclosed
29 upon demand pursuant to section 240.20 of this article where the prose-
30 cutor has failed to serve a timely written refusal pursuant to
31 section 240.35 of this article; (c) may order discovery with respect to
32 any other property, which the people intend to introduce at the trial,
33 upon a showing by the defendant that discovery with respect to such
34 property is material to the preparation of his or her defense, and
35 that the request is reasonable; and (d) where property in the people's
36 possession, custody, or control that consists of a deoxyribonu-
37 cleic acid ("DNA") profile obtained from probative biological material
38 gathered in connection with the investigation or prosecution of the
39 defendant and the defendant establishes that such profile complies with
40 federal bureau of investigation or state requirements, whichever are
41 applicable and as such requirements are applied to law enforcement
42 agencies seeking a keyboard search or similar comparison, and that the
43 data meets state DNA index system or national DNA index system criteria
44 as such criteria are applied to law enforcement agencies seeking such a
45 keyboard search or similar comparison, the court may order an entity
46 that has access to the combined DNA index system or its successor system
47 to compare such DNA profile against DNA databanks by keyboard searches,
48 or a similar method that does not involve uploading, upon notice to both
49 parties and the entity required to perform the search, upon a showing by
50 the defendant that such a comparison is material to the presentation of
51 his or her defense and that the request is reasonable. For purposes of
52 this paragraph, a "keyboard search" shall mean a search of a DNA profile
53 against the databank in which the profile that is searched is not
54 uploaded to or maintained in the databank. Upon granting the motion
55 pursuant to paragraph (c) of this subdivision, the court shall, upon
56 motion of the people showing such to be material to the preparation of
A. 7034 23
1 their case and that the request is reasonable, condition its order of
2 discovery by further directing discovery by the people of property, of
3 the same kind or character as that authorized to be inspected by the
4 defendant, which he or she intends to introduce at the trial.
5 2. Upon motion of the prosecutor, and subject to constitutional
6 limitation, the court in which an indictment, superior court
7 information, prosecutor's information, information, or simplified
8 information charging a misdemeanor is pending: (a) must order discovery
9 as to any property not disclosed upon a demand pursuant to section
10 240.30 of this article, if it finds that the defendant's refusal
11 to disclose such material is not justified; and (b) may order the
12 defendant to provide non-testimonial evidence. Such order may,
13 among other things, require the defendant to:
14 (i) Appear in a line-up;
15 (ii) Speak for identification by witness or potential witness;
16 (iii) Be fingerprinted;
17 (iv) Pose for photographs not involving reenactment of an event;
18 (v) Permit the taking of samples of blood, hair or other materials
19 from his or her body in a manner not involving an unreasonable
20 intrusion thereof or a risk of serious physical injury thereto;
21 (vi) Provide specimens of his or her handwriting;
22 (vii) Submit to a reasonable physical or medical inspection of his
23 or her body.
24 This subdivision shall not be construed to limit, expand, or otherwise
25 affect the issuance of a similar court order, as may be authorized by
26 law, before the filing of an accusatory instrument consistent with such
27 rights as the defendant may derive from the constitution of this state
28 or of the United States. This section shall not be construed to limit or
29 otherwise affect the administration of a chemical test where other-
30 wise authorized pursuant to section one thousand one hundred ninety-
31 four-a of the vehicle and traffic law.
32 3. An order pursuant to this section may be denied, limited or
33 conditioned as provided in section 240.50 of this article.
34 § 240.44 Upon pre-trial hearing.
35 Subject to a protective order, at a pre-trial hearing held in a
36 criminal court at which a witness is called to testify, each party,
37 prior to the commencement of the direct examination of each of its
38 witnesses, shall, upon request of the other party, make available to
39 that party to the extent not previously disclosed:
40 1. Any written or recorded statement, including any testimony before a
41 grand jury, made by such witness other than the defendant which relates
42 to the subject matter of the witness's testimony.
43 2. A record of a judgment of conviction of such witness other than the
44 defendant if the record of conviction is known by the prosecutor or
45 defendant, as the case may be, to exist.
46 3. The existence of any pending criminal action against such witness
47 other than the defendant if the pending criminal action is known by the
48 prosecutor or defendant, as the case may be, to exist.
49 § 240.45 Upon trial, of prior statements and criminal history of
50 witnesses.
51 1. After the jury has been sworn and before the prosecutor's opening
52 address, or in the case of a single judge trial after commencement and
53 before submission of evidence, the prosecutor shall, subject to a
54 protective order, make available to the defendant:
55 (a) Any written or recorded statement, including any testimony before
56 a grand jury and an examination videotaped pursuant to section 190.32 of
A. 7034 24
1 this part, made by a person whom the prosecutor intends to call as a
2 witness at trial, and which relates to the subject matter of the
3 witness's testimony;
4 (b) A record of judgment of conviction of a witness the people intend
5 to call at trial if the record of conviction is known by the prosecutor
6 to exist;
7 (c) The existence of any pending criminal action against a witness
8 the people intend to call at trial, if the pending criminal action is
9 known by the prosecutor to exist.
10 The provisions of paragraphs (b) and (c) of this subdivision shall not
11 be construed to require the prosecutor to fingerprint a witness or
12 otherwise cause the division of criminal justice services or other law
13 enforcement agency or court to issue a report concerning a witness.
14 2. After presentation of the people's direct case and before the
15 presentation of the defendant's direct case, the defendant shall,
16 subject to a protective order, make available to the prosecutor:
17 (a) any written or recorded statement made by a person other than the
18 defendant whom the defendant intends to call as a witness at the trial,
19 and which relates to the subject matter of the witness's testimony;
20 (b) a record of judgment of conviction of a witness, other than the
21 defendant, the defendant intends to call at trial if the record of
22 conviction is known by the defendant to exist;
23 (c) the existence of any pending criminal action against a witness,
24 other than the defendant, the defendant intends to call at trial, if the
25 pending criminal action is known by the defendant to exist.
26 § 240.50 Protective orders.
27 1. The court in which the criminal action is pending may, upon motion
28 of either party, or of any affected person, or upon determination of a
29 motion of either party for an order of discovery, or upon its own
30 initiative, issue a protective order denying, limiting, conditioning,
31 delaying or regulating discovery pursuant to this article for good
32 cause, including constitutional limitations, danger to the integrity of
33 physical evidence or a substantial risk of physical harm, intimidation,
34 economic reprisal, bribery or unjustified annoyance or embarrassment to
35 any person or an adverse effect upon the legitimate needs of law
36 enforcement, including the protection of the confidentiality of
37 informants, or any other factor or set of factors which outweighs the
38 usefulness of the discovery.
39 2. An order limiting, conditioning, delaying or regulating discovery
40 may, among other things, require that any material copied or derived
41 therefrom be maintained in the exclusive possession of the attorney for
42 the discovering party and be used for the exclusive purpose of preparing
43 for the defense or prosecution of the criminal action.
44 3. A motion for a protective order shall suspend discovery of the
45 particular matter in dispute.
46 4. Notwithstanding any other provision of this article, the personal
47 residence address of a police officer or correction officer shall not be
48 required to be disclosed except pursuant to an order issued by a court
49 following a finding of good cause.
50 § 240.60 Continuing duty to disclose.
51 If, after complying with the provisions of this article or an order
52 pursuant thereto, a party finds, either before or during trial,
53 additional material subject to discovery or covered by such order, he
54 or she shall promptly comply with the demand or order, refuse to
55 comply with the demand where refusal is authorized, or apply for a
56 protective order.
A. 7034 25
1 § 240.70 Sanctions; fees.
2 1. If, during the course of discovery proceedings, the court finds
3 that a party has failed to comply with any of the provisions of this
4 article, the court may order such party to permit discovery of the prop-
5 erty not previously disclosed, grant a continuance, issue a protective
6 order, prohibit the introduction of certain evidence or the calling of
7 certain witnesses or take any other appropriate action.
8 2. The failure of the prosecution to call as a witness a person speci-
9 fied in subdivision one of section 240.20 of this article or of any
10 party to introduce disclosed material at the trial shall not, by itself,
11 constitute grounds for any sanction or for adverse comment thereupon by
12 any party in summation to the jury or at any other point.
13 3. A fee for copies of records required to be disclosed may be
14 charged. Such fee shall not exceed twenty-five cents per photocopy not
15 in excess of nine inches by fourteen inches, or the actual cost of
16 reproducing any other record, except when a different fee is otherwise
17 prescribed by law.
18 § 240.75 Certain violations.
19 The failure of the prosecutor or any agent of the prosecutor to
20 disclose statements that are required to be disclosed under subdivision
21 one of section 240.44 of this article or paragraph (a) of subdivision
22 one of section 240.45 of this article shall not constitute grounds for
23 any court to order a new pre-trial hearing or set aside a
24 conviction, or reverse, modify or vacate a judgment of conviction in the
25 absence of a showing by the defendant that there is a reasonable
26 possibility that the non-disclosure materially contributed to the
27 result of the trial or other proceeding; provided, however, that nothing
28 in this section shall affect or limit any right the defendant
29 may have to a re-opened pre-trial hearing when such statements were
30 disclosed before the close of evidence at trial.
31 § 240.80 When demand, refusal and compliance made.
32 1. A demand to produce shall be made within thirty days after
33 arraignment and before the commencement of trial. If the defendant is
34 not represented by counsel, and has requested an adjournment to obtain
35 counsel or to have counsel assigned, the thirty-day period shall
36 commence, for purposes of a demand by the defendant, on the date counsel
37 initially appears on his or her behalf. However, the court may
38 direct compliance with a demand to produce that, for good cause shown,
39 could not have been made within the time specified.
40 2. A refusal to comply with a demand to produce shall be made within
41 fifteen days of the service of the demand to produce, but for good cause
42 may be made thereafter.
43 3. Absent a refusal to comply with a demand to produce, compliance
44 with such demand shall be made within fifteen days of the service of the
45 demand or as soon thereafter as practicable.
46 § 240.90 Motion procedure.
47 1. A motion by a prosecutor for discovery shall be made within
48 forty-five days after arraignment, but for good cause shown may be made
49 at any time before commencement of trial.
50 2. A motion by a defendant for discovery shall be made as prescribed
51 in section 255.20 of this title.
52 3. Where the interests of justice so require, the court may permit a
53 party to a motion for an order of discovery or a protective order, or
54 other affected person, to submit papers or to testify ex parte or in
55 camera. Any such papers and transcript of such testimony shall be
56 sealed, but shall constitute a part of the record on appeal.
A. 7034 26
1 § 32. Subdivision 9 of section 65.20 of the criminal procedure law, as
2 amended by section 4 of part LLL of chapter 59 of the laws of 2019, is
3 amended to read as follows:
4 9. (a) Prior to the commencement of the hearing conducted pursuant to
5 subdivision six of this section, the district attorney shall, subject to
6 a protective order, comply with the provisions of subdivision one of
7 section [245.20] 240.45 of this chapter as they concern any witness whom
8 the district attorney intends to call at the hearing and the child
9 witness.
10 (b) Before a defendant calls a witness at such hearing, he or she
11 must, subject to a protective order, comply with the provisions of
12 subdivision [four] two of section [245.20] 240.45 of this chapter as
13 they concern all the witnesses the defendant intends to call at such
14 hearing.
15 § 33. Subdivision 5 of section 200.95 of the criminal procedure law,
16 as amended by section 5 of part LLL of chapter 59 of the laws of 2019,
17 is amended to read as follows:
18 5. Court ordered bill of particulars. Where a prosecutor has timely
19 served a written refusal pursuant to subdivision four of this section
20 and upon motion, made in writing, of a defendant, who has made a request
21 for a bill of particulars and whose request has not been complied with
22 in whole or in part, the court must, to the extent a protective order is
23 not warranted, order the prosecutor to comply with the request if it is
24 satisfied that the items of factual information requested are authorized
25 to be included in a bill of particulars, and that such information is
26 necessary to enable the defendant adequately to prepare or conduct his
27 or her defense and, if the request was untimely, a finding of good cause
28 for the delay. Where a prosecutor has not timely served a written
29 refusal pursuant to subdivision four of this section the court must,
30 unless it is satisfied that the people have shown good cause why such an
31 order should not be issued, issue an order requiring the prosecutor to
32 comply or providing for any other order authorized by [section 245.80 of
33 this part] subdivision one of section 240.70 of this part.
34 § 34. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
35 procedure law, as amended by section 6 of part LLL of chapter 59 of the
36 laws of 2019, is amended to read as follows:
37 (c) granting discovery pursuant to article [245]two hundred forty; or
38 § 35. Subdivision 1 of section 255.20 of the criminal procedure law,
39 as amended by section 7 of part LLL of chapter 59 of the laws of 2019,
40 is amended to read as follows:
41 1. Except as otherwise expressly provided by law, whether the defend-
42 ant is represented by counsel or elects to proceed pro se, all pre-trial
43 motions shall be served or filed within forty-five days after arraign-
44 ment and before commencement of trial, or within such additional time as
45 the court may fix upon application of the defendant made prior to entry
46 of judgment. In an action in which [either (a) material or information
47 has been disclosed pursuant to paragraph (m) or (n) of subdivision one
48 of section 245.20 of this title, (b)] an eavesdropping warrant and
49 application have been furnished pursuant to section 700.70 of this chap-
50 ter, or [(c)] a notice of intention to introduce evidence has been
51 served pursuant to section 710.30 of this chapter, such period shall be
52 extended until forty-five days after the last date of such service. If
53 the defendant is not represented by counsel and has requested an
54 adjournment to obtain counsel or to have counsel assigned, such forty-
55 five day period shall commence on the date counsel initially appears on
56 defendant's behalf.
A. 7034 27
1 § 36. Section 340.30 of the criminal procedure law, as amended by
2 section 8 of part LLL of chapter 59 of the laws of 2019, is amended to
3 read as follows:
4 § 340.30 Pre-trial discovery and notices of defenses.
5 The provisions of article two hundred [forty-five] forty of this part,
6 concerning pre-trial discovery by a defendant under indictment in a
7 superior court, and article two hundred fifty of this part, concerning
8 pre-trial notice to the people by a defendant under indictment in a
9 superior court who intends to advance a trial defense of mental disease
10 or defect or of alibi, apply to a prosecution of an information in a
11 local criminal court.
12 § 37. Subdivision 14 of section 400.27 of the criminal procedure law,
13 as amended by section 9 of part LLL of chapter 59 of the laws of 2019,
14 is amended to read as follows:
15 14. (a) At a reasonable time prior to the sentencing proceeding or a
16 [mental retardation] competency hearing:
17 (i) the prosecutor shall, unless previously disclosed and subject to a
18 protective order, make available to the defendant the statements and
19 information specified in subdivision one of section [245.20] 240.45 of
20 this part and make available for inspection, photographing, copying or
21 testing the property specified in subdivision one of section [245.20]
22 240.20 of this part; and
23 (ii) the defendant shall, unless previously disclosed and subject to a
24 protective order, make available to the prosecution the statements and
25 information specified in subdivision [four] two of section [245.20]
26 240.20 of this part and make available for inspection, photographing,
27 copying or testing, subject to constitutional limitations, the reports,
28 documents and other property specified in [section 245.20] subdivision
29 one of section 240.30 of this part.
30 (b) Where a party refuses to make disclosure pursuant to this section,
31 the provisions of [section 245.70, 245.75 and/or 245.80] sections
32 240.35, 240.40 and 240.50 of this part shall apply.
33 (c) If, after complying with the provisions of this section or an
34 order pursuant thereto, a party finds either before or during a sentenc-
35 ing proceeding or [mental retardation] competency hearing, additional
36 material subject to discovery or covered by court order, the party shall
37 promptly make disclosure or apply for a protective order.
38 (d) If the court finds that a party has failed to comply with any of
39 the provisions of this section, the court may [employ] enter any of the
40 [remedies or sanctions] orders specified in subdivision one of section
41 [245.80] 240.70 of this part.
42 § 38. The opening paragraph of paragraph (b) of subdivision 1 of
43 section 440.30 of the criminal procedure law, as amended by section 10
44 of part LLL of chapter 59 of the laws of 2019, is amended to read as
45 follows:
46 In conjunction with the filing or consideration of a motion to vacate
47 a judgment pursuant to section 440.10 of this article by a defendant
48 convicted after a trial, in cases where the court has ordered an eviden-
49 tiary hearing upon such motion, the court may order that the people
50 produce or make available for inspection property, as defined in subdi-
51 vision three of section 240.10 of this part, in its possession, custody,
52 or control that was secured in connection with the investigation or
53 prosecution of the defendant upon credible allegations by the defendant
54 and a finding by the court that such property, if obtained, would be
55 probative to the determination of defendant's actual innocence, and that
56 the request is reasonable. The court shall deny or limit such a request
A. 7034 28
1 upon a finding that such a request, if granted, would threaten the
2 integrity or chain of custody of property or the integrity of the proc-
3 esses or functions of a laboratory conducting DNA testing, pose a risk
4 of harm, intimidation, embarrassment, reprisal, or other substantially
5 negative consequences to any person, undermine the proper functions of
6 law enforcement including the confidentiality of informants, or on the
7 basis of any other factor identified by the court in the interests of
8 justice or public safety. The court shall further ensure that any prop-
9 erty produced pursuant to this paragraph is subject to a protective
10 order, where appropriate. The court shall deny any request made pursuant
11 to this paragraph where:
12 § 39. Subdivision 3 of section 610.20 of the criminal procedure law,
13 as amended by section 3 of part LLL of chapter 59 of the laws of 2019,
14 is amended to read as follows:
15 3. An attorney for a defendant in a criminal action or proceeding, as
16 an officer of a criminal court, may issue a subpoena of such court,
17 subscribed by himself or herself, for the attendance in such court of
18 any witness whom the defendant is entitled to call in such action or
19 proceeding. An attorney for a defendant may not issue a subpoena duces
20 tecum of the court directed to any department, bureau or agency of the
21 state or of a political subdivision thereof, or to any officer or repre-
22 sentative thereof[, unless the subpoena is indorsed by the court and
23 provides at least three days for the production of the requested materi-
24 als. In the case of an emergency, the court may by order dispense with
25 the three-day production period]. Such a subpoena duces tecum may be
26 issued in behalf of a defendant upon order of a court pursuant to the
27 rules applicable to civil cases as provided in section twenty-three
28 hundred seven of the civil practice law and rules.
29 § 40. Subdivision 4 of section 610.20 of the criminal procedure law is
30 REPEALED.
31 § 41. Subdivision 10 of section 450.10 of the penal law, as amended by
32 section 11 of part LLL of chapter 59 of the laws of 2019, is amended to
33 read as follows:
34 10. Where there has been a failure to comply with the provisions of
35 this section, and where the district attorney does not demonstrate to
36 the satisfaction of the court that such failure has not caused the
37 defendant prejudice, the court shall instruct the jury that it may
38 consider such failure in determining the weight to be given such
39 evidence and may also impose any other sanction set forth in subdivision
40 one of section [245.80] 240.70 of the criminal procedure law; provided,
41 however, that unless the defendant has convinced the court that such
42 failure has caused him or her undue prejudice, the court shall not
43 preclude the district attorney from introducing into evidence the prop-
44 erty, photographs, photocopies, or other reproductions of the property
45 or, where appropriate, testimony concerning its value and condition,
46 where such evidence is otherwise properly authenticated and admissible
47 under the rules of evidence. Failure to comply with any one or more of
48 the provisions of this section shall not for that reason alone be
49 grounds for dismissal of the accusatory instrument.
50 § 42. Section 460.80 of the penal law, as amended by section 12 of
51 part LLL of chapter 59 of the laws of 2019, is amended to read as
52 follows:
53 § 460.80 Court ordered disclosure.
54 Notwithstanding the provisions of article two hundred [forty-five]
55 forty of the criminal procedure law, when forfeiture is sought pursuant
56 to section 460.30 of this article, the court may order discovery of any
A. 7034 29
1 property not otherwise disclosed which is material and reasonably neces-
2 sary for preparation by the defendant with respect to the forfeiture
3 proceeding pursuant to such section. The court may issue a protective
4 order denying, limiting, conditioning, delaying or regulating such
5 discovery where a danger to the integrity of physical evidence or a
6 substantial risk of physical harm, intimidation, economic reprisal,
7 bribery or unjustified annoyance or embarrassment to any person or an
8 adverse effect upon the legitimate needs of law enforcement, including
9 the protection of the confidentiality of informants, or any other factor
10 or set of factors outweighs the usefulness of the discovery.
11 § 43. Subdivision 5 of section 480.10 of the penal law, as amended by
12 section 13 of part LLL of chapter 59 of the laws of 2019, is amended to
13 read as follows:
14 5. In addition to information required to be disclosed pursuant to
15 article two hundred [forty-five] forty of the criminal procedure law,
16 when forfeiture is sought pursuant to this article, and following the
17 defendant's arraignment on the special forfeiture information, the court
18 shall order discovery of any information not otherwise disclosed which
19 is material and reasonably necessary for preparation by the defendant
20 with respect to a forfeiture proceeding brought pursuant to this arti-
21 cle. Such material shall include those portions of the grand jury
22 minutes and such other information which pertain solely to the special
23 forfeiture information and shall not include information which pertains
24 to the criminal charges. Upon application of the prosecutor, the court
25 may issue a protective order pursuant to section [245.70] 240.40 of the
26 criminal procedure law with respect to any information required to be
27 disclosed pursuant to this subdivision.
28 § 44. Subdivision 5 of section 216 of the judiciary law is REPEALED.
29 § 45. Section 837-u of the executive law is REPEALED.
30 § 46. This act shall take effect immediately; provided, however, that
31 the amendments to subdivision 9 of section 65.20 of the criminal proce-
32 dure law made by section thirty-two of this act shall not affect the
33 repeal of such section and shall be deemed repealed therewith.
