Amd §§500.10, 510.10, 510.20, 510.30, 510.45, 530.20 & 530.40, rpld §510.45 sub 3 ¶(b), §530.20 sub 1 ¶(b),
CP L
Restores judicial discretion relating to bail reform; provides that when the defendant is charged with a felony, the court shall request of the applicable county pre-trial services agency a risk and needs assessment be conducted on the eligible defendant for the purpose of determining whether such defendant should be released on the defendant's own recognizance, released under non-monetary conditions or, where authorized, bail or commit the defendant to the custody of the sheriff; defines risks and needs assessment; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5169
SPONSOR: Tannousis TITLE OF BILL:
An act to amend the criminal procedure law, in relation to bail reform;
and to repeal certain provisions of such law relating thereto
PURPOSE OR GENERAL IDEA OF BILL::
This bill provides courts with the authority and tools necessary to
render securing orders, when an individual charged with a crime(s)
continues to pose a danger to the community and/or a risk of flight to
avoid prosecution. This bill requires that a risk and needs assessment
be utilized to assist the court in making such determinations.
SUMMARY OF PROVISIONS::
Sections one through eleven amend pertinent sections of the criminal
procedure law to effectuate the intent of this legislation.
Section 12 establishes the effective date.
JUSTIFICATION:
The criminal justice changes codified in statute as part of the State
Fiscal Year 2019-20 enacted budget, which eliminated cash bail and
pretrial detention for most criminal offenses beginning on January 1,
2020, has proven to be a. detriment to communities across New York
State.
To date, thousands of individuals charged with serious crimes have been
released; a significant number have reoffended and victimized members of
communities throughout the State. This rise of danger to our communities
neglects government's' fundamental responsibility to protect its citi-
zens.
Moreover, these changes have hindered the ability of the judiciary to
render individualized securing order decisions except in very limited
circumstances.
This legislation ameliorates the existing statute by restoring the
discretion of the courts and requiring that a risk and needs assessment
be utilized as part of the decision making process.
PRIOR LEGISLATIVE HISTORY::
2021 A6933 Held for consideration in Codes
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS::
None.
EFFECTIVE DATE::
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
5169
2023-2024 Regular Sessions
IN ASSEMBLY
March 3, 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 bail reform;
and to repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 500.10 of the criminal procedure law is amended by
2 adding a new subdivision 23 to read as follows:
3 23. "Risk and needs assessment" means a risk and needs assessment
4 instrument, approved by the chief administrative judge of the unified
5 court system. Such approved assessment instrument shall be objective,
6 standardized and developed based on analysis of empirical data and risk
7 factors relevant to the principal's danger to the community and risk of
8 failure of a principal to appear. Such approved assessment instrument
9 shall not be discriminatory based on race, national origin, sex, any
10 other protected class or socioeconomic status.
11 § 2. Section 510.10 of the criminal procedure law, as amended by
12 section 2 of part JJJ of chapter 59 of the laws of 2019, subdivision 1
13 as amended by section 1 of subpart C of part UU of chapter 56 of the
14 laws of 2022, subdivision 4 as amended by section 2 of part UU of chap-
15 ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4 as
16 amended and paragraph (u) of subdivision 4 as added by section 2 of
17 subpart B of part UU of chapter 56 of the laws of 2022, is amended to
18 read as follows:
19 § 510.10 Securing order; when required; alternatives available; standard
20 to be applied.
21 1. When a principal, whose future court attendance at a criminal
22 action or proceeding is or may be required, comes under the control of a
23 court, such court shall, in accordance with this title, by a securing
24 order [release the principal] request of the applicable county pre-trial
25 services agency that a risk and needs assessment be conducted on the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00533-01-3
A. 5169 2
1 eligible principal and such court shall take into account the risk and
2 needs assessment, but such assessment shall not be the sole determina-
3 tive factor, for the purpose of determining whether such principal
4 should be released on the principal's own recognizance, [release the
5 principal] released under non-monetary conditions, or, where authorized,
6 fix bail or commit the principal to the custody of the sheriff. In all
7 such cases, except where another type of securing order is shown to be
8 required by law, the court shall release the principal pending trial on
9 the principal's own recognizance, unless [it is] the risk needs assess-
10 ment has demonstrated and the court [makes an individualized determi-
11 nation] determines that the principal is a danger to the community or
12 poses a risk of flight to avoid prosecution. If such a finding specific
13 to risk of flight to avoid prosecution is made, the court must select
14 the least restrictive alternative and condition or conditions that will
15 reasonably assure the principal's return to court. The court shall
16 explain its choice of release, release with conditions, bail or remand
17 on the record or in writing. In making its determination, the court must
18 consider and take into account available information about the princi-
19 pal, including:
20 (a) The principal's activities and history;
21 (b) If the principal is a defendant, the charges facing the principal;
22 (c) The principal's criminal conviction record if any;
23 (d) The principal's record of previous adjudication as a juvenile
24 delinquent, as retained pursuant to section 354.1 of the family court
25 act, or, of pending cases where fingerprints are retained pursuant to
26 section 306.1 of such act, or a youthful offender, if any;
27 (e) The principal's previous record with respect to flight to avoid
28 criminal prosecution;
29 (f) If monetary bail is authorized, according to the restrictions set
30 forth in this title, the principal's individual financial circumstances,
31 and, in cases where bail is authorized, the principal's ability to post
32 bail without posing undue hardship, as well as his or her ability to
33 obtain a secured, unsecured, or partially secured bond;
34 (g) Any violation by the principal of an order of protection issued by
35 any court;
36 (h) The principal's history of use or possession of a firearm;
37 (i) Whether the charge is alleged to have caused serious harm to an
38 individual or group of individuals; and
39 (j) If the principal is a defendant, in the case of an application for
40 a securing order pending appeal, the merit or lack of merit of the
41 appeal.
42 2. A principal is entitled to representation by counsel under this
43 chapter in preparing an application for release, when a securing order
44 is being considered and when a securing order is being reviewed for
45 modification, revocation or termination. If the principal is financially
46 unable to obtain counsel, counsel shall be assigned to the principal.
47 3. [In cases other than as described in subdivision four of this
48 section the court shall release the principal pending trial on the prin-
49 cipal's own recognizance, unless the court finds on the record or in
50 writing that release on the principal's own recognizance will not
51 reasonably assure the principal's return to court. In such instances,
52 the court shall release the principal under non-monetary conditions,
53 selecting the least restrictive alternative and conditions that will
54 reasonably assure the principal's return to court. The court shall
55 explain its choice of alternative and conditions on the record or in
56 writing.
A. 5169 3
1 4. Where the principal stands charged with a qualifying offense, the
2 court, unless otherwise prohibited by law, may in its discretion release
3 the principal pending trial on the principal's own recognizance or under
4 non-monetary conditions, fix bail, or, where the defendant is charged
5 with a qualifying offense which is a felony, the court may commit the
6 principal to the custody of the sheriff. A principal stands charged with
7 a qualifying offense for the purposes of this subdivision when he or she
8 stands charged with:
9 (a) a felony enumerated in section 70.02 of the penal law, other than
10 robbery in the second degree as defined in subdivision one of section
11 160.10 of the penal law, provided, however, that burglary in the second
12 degree as defined in subdivision two of section 140.25 of the penal law
13 shall be a qualifying offense only where the defendant is charged with
14 entering the living area of the dwelling;
15 (b) a crime involving witness intimidation under section 215.15 of the
16 penal law;
17 (c) a crime involving witness tampering under section 215.11, 215.12
18 or 215.13 of the penal law;
19 (d) a class A felony defined in the penal law, provided that for class
20 A felonies under article two hundred twenty of the penal law, only class
21 A-I felonies shall be a qualifying offense;
22 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
23 the penal law, or a felony sex offense defined in section 70.80 of the
24 penal law, or a crime involving incest as defined in section 255.25,
25 255.26 or 255.27 of such law, or a misdemeanor defined in article one
26 hundred thirty of such law;
27 (f) conspiracy in the second degree as defined in section 105.15 of
28 the penal law, where the underlying allegation of such charge is that
29 the defendant conspired to commit a class A felony defined in article
30 one hundred twenty-five of the penal law;
31 (g) money laundering in support of terrorism in the first degree as
32 defined in section 470.24 of the penal law; money laundering in support
33 of terrorism in the second degree as defined in section 470.23 of the
34 penal law; money laundering in support of terrorism in the third degree
35 as defined in section 470.22 of the penal law; money laundering in
36 support of terrorism in the fourth degree as defined in section 470.21
37 of the penal law; or a felony crime of terrorism as defined in article
38 four hundred ninety of the penal law, other than the crime defined in
39 section 490.20 of such law;
40 (h) criminal contempt in the second degree as defined in subdivision
41 three of section 215.50 of the penal law, criminal contempt in the first
42 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
43 the penal law or aggravated criminal contempt as defined in section
44 215.52 of the penal law, and the underlying allegation of such charge of
45 criminal contempt in the second degree, criminal contempt in the first
46 degree or aggravated criminal contempt is that the defendant violated a
47 duly served order of protection where the protected party is a member of
48 the defendant's same family or household as defined in subdivision one
49 of section 530.11 of this title;
50 (i) facilitating a sexual performance by a child with a controlled
51 substance or alcohol as defined in section 263.30 of the penal law, use
52 of a child in a sexual performance as defined in section 263.05 of the
53 penal law or luring a child as defined in subdivision one of section
54 120.70 of the penal law, promoting an obscene sexual performance by a
55 child as defined in section 263.10 of the penal law or promoting a sexu-
56 al performance by a child as defined in section 263.15 of the penal law;
A. 5169 4
1 (j) any crime that is alleged to have caused the death of another
2 person;
3 (k) criminal obstruction of breathing or blood circulation as defined
4 in section 121.11 of the penal law, strangulation in the second degree
5 as defined in section 121.12 of the penal law or unlawful imprisonment
6 in the first degree as defined in section 135.10 of the penal law, and
7 is alleged to have committed the offense against a member of the defend-
8 ant's same family or household as defined in subdivision one of section
9 530.11 of this title;
10 (l) aggravated vehicular assault as defined in section 120.04-a of the
11 penal law or vehicular assault in the first degree as defined in section
12 120.04 of the penal law;
13 (m) assault in the third degree as defined in section 120.00 of the
14 penal law or arson in the third degree as defined in section 150.10 of
15 the penal law, when such crime is charged as a hate crime as defined in
16 section 485.05 of the penal law;
17 (n) aggravated assault upon a person less than eleven years old as
18 defined in section 120.12 of the penal law or criminal possession of a
19 weapon on school grounds as defined in section 265.01-a of the penal
20 law;
21 (o) grand larceny in the first degree as defined in section 155.42 of
22 the penal law, enterprise corruption as defined in section 460.20 of the
23 penal law, or money laundering in the first degree as defined in section
24 470.20 of the penal law;
25 (p) failure to register as a sex offender pursuant to section one
26 hundred sixty-eight-t of the correction law or endangering the welfare
27 of a child as defined in subdivision one of section 260.10 of the penal
28 law, where the defendant is required to maintain registration under
29 article six-C of the correction law and designated a level three offen-
30 der pursuant to subdivision six of section one hundred sixty-eight-l of
31 the correction law;
32 (q) a crime involving bail jumping under section 215.55, 215.56 or
33 215.57 of the penal law, or a crime involving escaping from custody
34 under section 205.05, 205.10 or 205.15 of the penal law;
35 (r) any felony offense committed by the principal while serving a
36 sentence of probation or while released to post release supervision;
37 (s) a felony, where the defendant qualifies for sentencing on such
38 charge as a persistent felony offender pursuant to section 70.10 of the
39 penal law;
40 (t) any felony or class A misdemeanor involving harm to an identifi-
41 able person or property, or any charge of criminal possession of a
42 firearm as defined in section 265.01-b of the penal law, where such
43 charge arose from conduct occurring while the defendant was released on
44 his or her own recognizance, released under conditions, or had yet to be
45 arraigned after the issuance of a desk appearance ticket for a separate
46 felony or class A misdemeanor involving harm to an identifiable person
47 or property, or any charge of criminal possession of a firearm as
48 defined in section 265.01-b of the penal law, provided, however, that
49 the prosecutor must show reasonable cause to believe that the defendant
50 committed the instant crime and any underlying crime. For the purposes
51 of this subparagraph, any of the underlying crimes need not be a quali-
52 fying offense as defined in this subdivision. For the purposes of this
53 paragraph, "harm to an identifiable person or property" shall include
54 but not be limited to theft of or damage to property. However, based
55 upon a review of the facts alleged in the accusatory instrument, if the
56 court determines that such theft is negligible and does not appear to be
A. 5169 5
1 in furtherance of other criminal activity, the principal shall be
2 released on his or her own recognizance or under appropriate non-mone-
3 tary conditions; or
4 (u) criminal possession of a weapon in the third degree as defined in
5 subdivision three of section 265.02 of the penal law or criminal sale of
6 a firearm to a minor as defined in section 265.16 of the penal law.
7 5. Notwithstanding the provisions of subdivisions three and four of
8 this section, with] With respect to any charge for which bail or remand
9 is not ordered, and for which the court would not [or could not] other-
10 wise require bail or remand, a defendant may, at any time, request that
11 the court set bail in a nominal amount requested by the defendant in the
12 form specified in paragraph (a) of subdivision one of section 520.10 of
13 this title; if the court is satisfied that the request is voluntary, the
14 court shall set such bail in such amount.
15 [6.] 4. When a securing order is revoked or otherwise terminated in
16 the course of an uncompleted action or proceeding but the principal's
17 future court attendance still is or may be required and the principal is
18 still under the control of a court, a new securing order must be issued.
19 When the court revokes or otherwise terminates a securing order which
20 committed the principal to the custody of the sheriff, the court shall
21 give written notification to the sheriff of such revocation or termi-
22 nation of the securing order.
23 § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
24 amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is
25 amended to read as follows:
26 1. Upon any occasion when a court has issued a securing order with
27 respect to a principal and the principal is confined in the custody of
28 the sheriff as a result of the securing order or a previously issued
29 securing order, the principal may make an application for recognizance,
30 release under non-monetary conditions or bail. Any such decision by the
31 court for a change in a securing order with respect to a principal shall
32 take into account the risk and needs assessment conducted by the appli-
33 cable county pre-trial services agency, but such assessment shall not be
34 the sole determinative factor.
35 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
36 amended by section 2 of subpart C of part UU of chapter 56 of the laws
37 of 2022, is amended to read as follows:
38 1. With respect to any principal, the court in all cases, unless
39 otherwise provided by law, must impose the least restrictive kind and
40 degree of control or restriction that is necessary to secure the princi-
41 pal's return to court when required unless such principal poses a danger
42 to the community. In determining that matter, the court [must], in addi-
43 tion to taking into account the risk and needs assessment conducted by
44 the applicable county pre-trial services agency, on the basis of avail-
45 able information, consider and take into account information about the
46 principal that is relevant to the principal's return to court, includ-
47 ing:
48 (a) The principal's activities and history;
49 (b) If the principal is a defendant, the charges facing the principal;
50 (c) The principal's criminal conviction record if any;
51 (d) The principal's record of previous adjudication as a juvenile
52 delinquent, as retained pursuant to section 354.2 of the family court
53 act, or, of pending cases where fingerprints are retained pursuant to
54 section 306.1 of such act, or a youthful offender, if any;
55 (e) The principal's previous record with respect to flight to avoid
56 criminal prosecution;
A. 5169 6
1 (f) If monetary bail is authorized, according to the restrictions set
2 forth in this title, the principal's individual financial circumstances,
3 and, in cases where bail is authorized, the principal's ability to post
4 bail without posing undue hardship, as well as his or her ability to
5 obtain a secured, unsecured, or partially secured bond;
6 (g) any violation by the principal of an order of protection issued by
7 any court;
8 (h) the principal's history of use or possession of a firearm;
9 (i) whether the charge is alleged to have caused serious harm to an
10 individual or group of individuals; and
11 (j) If the principal is a defendant, in the case of an application for
12 a securing order pending appeal, the merit or lack of merit of the
13 appeal.
14 § 5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal
15 procedure law, as added by section 8 of part JJJ of chapter 59 of the
16 laws of 2019, is amended to read as follows:
17 [(a) Any questionnaire, instrument or tool] The risk and needs assess-
18 ment instrument used with a principal in the process of considering or
19 determining the principal's possible release on recognizance, release
20 under non-monetary conditions or on bail, or used with a principal in
21 the process of considering or determining a condition or conditions of
22 release or monitoring by a pretrial services agency, shall be promptly
23 made available to the principal and the principal's counsel upon [writ-
24 ten] request. [Any such blank form questionnaire, instrument or tool]
25 Any such blank risk and needs assessment instrument regularly used in
26 the county for such purpose or a related purpose shall be made available
27 to any person promptly upon written request.
28 § 6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal
29 procedure law is REPEALED.
30 § 7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal
31 procedure law, as amended by section 3 of subpart C of part UU of chap-
32 ter 56 of the laws of 2022, is amended to read as follows:
33 (a) [In cases other than as described in paragraph (b) of this subdi-
34 vision] When the principal is charged with an offense or offenses of
35 less than felony grade only, the court shall [release the] request of
36 the applicable county pre-trial services agency a risk and needs assess-
37 ment be conducted on the eligible principal and the court shall take
38 into account the risk and needs assessment, but such assessment shall
39 not be the sole determinative factor, for the purpose of determining
40 whether such principal should be released pending trial on the princi-
41 pal's own recognizance, [unless the court finds on the record or in
42 writing that release on the principal's own recognizance will not
43 reasonably assure the principal's return to court. In such instances,
44 the court shall release the principal under non-monetary conditions,
45 selecting the least restrictive alternative and conditions that will
46 reasonably assure the principal's return to court] released under non-
47 monetary conditions, or where authorized, fix bail or commit the princi-
48 pal to the custody of the sheriff. The court shall explain its choice of
49 [alternative and] release, release with conditions, bail or remand on
50 the record or in writing. In making its determination, the court must
51 consider and take into account available information about the princi-
52 pal, including:
53 (i) the principal's activities and history;
54 (ii) if the principal is a defendant, the charges facing the princi-
55 pal;
56 (iii) the principal's criminal conviction record if any;
A. 5169 7
1 (iv) the principal's record of previous adjudication as a juvenile
2 delinquent, as retained pursuant to section 354.1 of the family court
3 act, or of pending cases where fingerprints are retained pursuant to
4 section 306.1 of such act, or a youthful offender, if any;
5 (v) the principal's previous record with respect to flight to avoid
6 criminal prosecution;
7 (vi) if monetary bail is authorized, according to the restrictions set
8 forth in this title, the principal's individual financial circumstances,
9 and, in cases where bail is authorized, the principal's ability to post
10 bail without posing undue hardship, as well as his or her ability to
11 obtain a secured, unsecured, or partially secured bond;
12 (vii) any violation by the principal of an order of protection issued
13 by any court;
14 (viii) the principal's history and use or possession of a firearm;
15 (ix) whether the charge is alleged to have caused serious harm to an
16 individual or group of individuals; and
17 (x) if the principal is a defendant, in the case of an application for
18 a securing order pending appeal, the merit or lack of merit of the
19 appeal.
20 § 8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal
21 procedure law is REPEALED.
22 § 9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal
23 procedure law, as added by section 16 of part JJJ of chapter 59 of the
24 laws of 2019, is relettered paragraph (b) and amended to read as
25 follows:
26 (b) [Notwithstanding the provisions of paragraphs (a) and (b) of this
27 subdivision, with] With respect to any charge for which bail or remand
28 is not ordered, and for which the court would not [or could not] other-
29 wise require bail or remand, a defendant may, at any time, request that
30 the court set bail in a nominal amount requested by the defendant in the
31 form specified in paragraph (a) of subdivision one of section 520.10 of
32 this title; if the court is satisfied that the request is voluntary, the
33 court shall set such bail in such amount.
34 § 10. The opening paragraph of subdivision 2 of section 530.20 of the
35 criminal procedure law, as amended by section 16 of part JJJ of chapter
36 59 of the laws of 2019, is amended to read as follows:
37 When the defendant is charged, by felony complaint, with a felony, the
38 court [may, in its discretion, order] shall, request of the applicable
39 county pre-trial services agency a risk and needs assessment be
40 conducted on the eligible defendant and the court shall take into
41 account the risk and needs assessment, but such assessment shall not be
42 the sole determinative factor, for the purpose of determining whether
43 such defendant should be released on the defendant's own recognizance,
44 [release] released under non-monetary conditions, or, where authorized,
45 bail or commit the defendant to the custody of the sheriff except as
46 otherwise provided in [subdivision one of this section or] this subdivi-
47 sion:
48 § 11. Section 530.40 of the criminal procedure law, as amended by
49 section 18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
50 as amended by section 3 of subpart B of part UU of chapter 56 of the
51 laws of 2022, and subdivision 4 as amended by section 4 of part UU of
52 chapter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4
53 as amended and paragraph (u) of subdivision 4 as added by section 4 of
54 subpart B of part UU of chapter 56 of the laws of 2022, is amended to
55 read as follows:
A. 5169 8
1 § 530.40 Order of recognizance, release under non-monetary conditions or
2 bail; by superior court when action is pending therein.
3 When a criminal action is pending in a superior court, such court,
4 upon application of a defendant, must or may order recognizance or bail
5 as follows:
6 1. When the defendant is charged with an offense or offenses of less
7 than felony grade only, the court must, request of the applicable county
8 pre-trial services agency a risk and needs assessment be conducted on
9 the eligible defendant and the court shall take into account the risk
10 and needs assessment, but such assessment shall not be the sole determi-
11 native factor, for the purpose of determining whether such defendant,
12 unless otherwise provided by law, should be released on an order of
13 recognizance or bail or release under non-monetary conditions [in
14 accordance with this section] or commit the defendant to the custody of
15 the sheriff.
16 2. When the defendant is charged with a felony, the court [may, unless
17 otherwise provided by law in its discretion, order] shall request of
18 the applicable county pre-trial services agency a risk and needs assess-
19 ment be conducted on the eligible defendant and the court shall take
20 into account the risk and needs assessment, but such assessment shall
21 not be the sole determinative factor, for the purpose of determining
22 whether such defendant should be released on the defendant's own recog-
23 nizance, [release] released under non-monetary conditions or, where
24 authorized, bail or commit the defendant to the custody of the sheriff.
25 In any such case in which an indictment (a) has resulted from an order
26 of a local criminal court holding the defendant for the action of the
27 grand jury, or (b) was filed at a time when a felony complaint charging
28 the same conduct was pending in a local criminal court, and in which
29 such local criminal court or a superior court judge has issued an order
30 of recognizance, release under non-monetary conditions or, where author-
31 ized, bail which is still effective, the superior court's order may be
32 in the form of a direction continuing the effectiveness of the previous
33 order.
34 3. [In cases other than as described in subdivision four of this
35 section the court shall release the principal pending trial on the prin-
36 cipal's own recognizance, unless the court finds on the record or in
37 writing that release on the principal's own recognizance will not
38 reasonably assure the principal's return to court. In such instances,
39 the court shall release the principal under non-monetary conditions,
40 selecting the least restrictive alternative and conditions that will
41 reasonably assure the principal's return to court. The court shall
42 explain its choice of alternative and conditions on the record or in
43 writing. In making its determination, the court must consider and take
44 into account available information about the principal, including:
45 (a) the principal's activities and history;
46 (b) if the principal is a defendant, the charges facing the principal;
47 (c) the principal's criminal conviction record if any;
48 (d) the principal's record of previous adjudication as a juvenile
49 delinquent, as retained pursuant to section 354.1 of the family court
50 act, or of pending cases where fingerprints are retained pursuant to
51 section 306.1 of such act, or a youthful offender, if any;
52 (e) the principal's previous record with respect to flight to avoid
53 criminal prosecution;
54 (f) if monetary bail is authorized, according to the restrictions set
55 forth in this title, the principal's individual financial circumstances,
56 and, in cases where bail is authorized, the principal's ability to post
A. 5169 9
1 bail without posing undue hardship, as well as his or her ability to
2 obtain a secured, unsecured, or partially secured bond;
3 (g) any violation by the principal of an order of protection issued by
4 any court;
5 (h) the principal's history and use or possession of a firearm;
6 (i) whether the charge is alleged to have caused serious harm to an
7 individual or group of individuals; and
8 (j) if the principal is a defendant, in the case of an application for
9 a securing order pending appeal, the merit or lack of merit of the
10 appeal.
11 4. Where the principal stands charged with a qualifying offense, the
12 court, unless otherwise prohibited by law, may in its discretion release
13 the principal pending trial on the principal's own recognizance or under
14 non-monetary conditions, fix bail, or, where the defendant is charged
15 with a qualifying offense which is a felony, the court may commit the
16 principal to the custody of the sheriff. The court shall explain its
17 choice of release, release with conditions, bail or remand on the record
18 or in writing. A principal stands charged with a qualifying offense for
19 the purposes of this subdivision when he or she stands charged with:
20 (a) a felony enumerated in section 70.02 of the penal law, other than
21 robbery in the second degree as defined in subdivision one of section
22 160.10 of the penal law, provided, however, that burglary in the second
23 degree as defined in subdivision two of section 140.25 of the penal law
24 shall be a qualifying offense only where the defendant is charged with
25 entering the living area of the dwelling;
26 (b) a crime involving witness intimidation under section 215.15 of the
27 penal law;
28 (c) a crime involving witness tampering under section 215.11, 215.12
29 or 215.13 of the penal law;
30 (d) a class A felony defined in the penal law, provided that for class
31 A felonies under article two hundred twenty of such law, only class A-I
32 felonies shall be a qualifying offense;
33 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
34 the penal law, or a felony sex offense defined in section 70.80 of the
35 penal law or a crime involving incest as defined in section 255.25,
36 255.26 or 255.27 of such law, or a misdemeanor defined in article one
37 hundred thirty of such law;
38 (f) conspiracy in the second degree as defined in section 105.15 of
39 the penal law, where the underlying allegation of such charge is that
40 the defendant conspired to commit a class A felony defined in article
41 one hundred twenty-five of the penal law;
42 (g) money laundering in support of terrorism in the first degree as
43 defined in section 470.24 of the penal law; money laundering in support
44 of terrorism in the second degree as defined in section 470.23 of the
45 penal law; money laundering in support of terrorism in the third degree
46 as defined in section 470.22 of the penal law; money laundering in
47 support of terrorism in the fourth degree as defined in section 470.21
48 of the penal law; or a felony crime of terrorism as defined in article
49 four hundred ninety of the penal law, other than the crime defined in
50 section 490.20 of such law;
51 (h) criminal contempt in the second degree as defined in subdivision
52 three of section 215.50 of the penal law, criminal contempt in the first
53 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
54 the penal law or aggravated criminal contempt as defined in section
55 215.52 of the penal law, and the underlying allegation of such charge of
56 criminal contempt in the second degree, criminal contempt in the first
A. 5169 10
1 degree or aggravated criminal contempt is that the defendant violated a
2 duly served order of protection where the protected party is a member of
3 the defendant's same family or household as defined in subdivision one
4 of section 530.11 of this article;
5 (i) facilitating a sexual performance by a child with a controlled
6 substance or alcohol as defined in section 263.30 of the penal law, use
7 of a child in a sexual performance as defined in section 263.05 of the
8 penal law or luring a child as defined in subdivision one of section
9 120.70 of the penal law, promoting an obscene sexual performance by a
10 child as defined in section 263.10 of the penal law or promoting a sexu-
11 al performance by a child as defined in section 263.15 of the penal law;
12 (j) any crime that is alleged to have caused the death of another
13 person;
14 (k) criminal obstruction of breathing or blood circulation as defined
15 in section 121.11 of the penal law, strangulation in the second degree
16 as defined in section 121.12 of the penal law or unlawful imprisonment
17 in the first degree as defined in section 135.10 of the penal law, and
18 is alleged to have committed the offense against a member of the defend-
19 ant's same family or household as defined in subdivision one of section
20 530.11 of this article;
21 (l) aggravated vehicular assault as defined in section 120.04-a of the
22 penal law or vehicular assault in the first degree as defined in section
23 120.04 of the penal law;
24 (m) assault in the third degree as defined in section 120.00 of the
25 penal law or arson in the third degree as defined in section 150.10 of
26 the penal law, when such crime is charged as a hate crime as defined in
27 section 485.05 of the penal law;
28 (n) aggravated assault upon a person less than eleven years old as
29 defined in section 120.12 of the penal law or criminal possession of a
30 weapon on school grounds as defined in section 265.01-a of the penal
31 law;
32 (o) grand larceny in the first degree as defined in section 155.42 of
33 the penal law, enterprise corruption as defined in section 460.20 of the
34 penal law, or money laundering in the first degree as defined in section
35 470.20 of the penal law;
36 (p) failure to register as a sex offender pursuant to section one
37 hundred sixty-eight-t of the correction law or endangering the welfare
38 of a child as defined in subdivision one of section 260.10 of the penal
39 law, where the defendant is required to maintain registration under
40 article six-C of the correction law and designated a level three offen-
41 der pursuant to subdivision six of section one hundred sixty-eight-l of
42 the correction law;
43 (q) a crime involving bail jumping under section 215.55, 215.56 or
44 215.57 of the penal law, or a crime involving escaping from custody
45 under section 205.05, 205.10 or 205.15 of the penal law;
46 (r) any felony offense committed by the principal while serving a
47 sentence of probation or while released to post release supervision;
48 (s) a felony, where the defendant qualifies for sentencing on such
49 charge as a persistent felony offender pursuant to section 70.10 of the
50 penal law;
51 (t) any felony or class A misdemeanor involving harm to an identifi-
52 able person or property, or any charge of criminal possession of a
53 firearm as defined in section 265.01-b of the penal law, where such
54 charge arose from conduct occurring while the defendant was released on
55 his or her own recognizance, released under conditions, or had yet to be
56 arraigned after the issuance of a desk appearance ticket for a separate
A. 5169 11
1 felony or class A misdemeanor involving harm to an identifiable person
2 or property, or any charge of criminal possession of a firearm as
3 defined in section 265.01-b of the penal law, provided, however, that
4 the prosecutor must show reasonable cause to believe that the defendant
5 committed the instant crime and any underlying crime. For the purposes
6 of this subparagraph, any of the underlying crimes need not be a quali-
7 fying offense as defined in this subdivision. For the purposes of this
8 paragraph, "harm to an identifiable person or property" shall include
9 but not be limited to theft of or damage to property. However, based
10 upon a review of the facts alleged in the accusatory instrument, if the
11 court determines that such theft is negligible and does not appear to be
12 in furtherance of other criminal activity, the principal shall be
13 released on his or her own recognizance or under appropriate non-mone-
14 tary conditions; or
15 (u) criminal possession of a weapon in the third degree as defined in
16 subdivision three of section 265.02 of the penal law or criminal sale of
17 a firearm to a minor as defined in section 265.16 of the penal law.
18 5. Notwithstanding the provisions of subdivisions three and four of
19 this section, with] With respect to any charge for which bail or remand
20 is not ordered, and for which the court would not [or could not] other-
21 wise require bail or remand, a defendant may, at any time, request that
22 the court set bail in a nominal amount requested by the defendant in the
23 form specified in paragraph (a) of subdivision one of section 520.10 of
24 this title; if the court is satisfied that the request is voluntary, the
25 court shall set such bail in such amount.
26 [6.] 4. Notwithstanding the provisions of [subdivisions] subdivision
27 two[, three and four] of this section, a superior court may not order
28 recognizance, release under non-monetary conditions or, where author-
29 ized, bail, or permit a defendant to remain at liberty pursuant to an
30 existing order, after the defendant has been convicted of either: (a) a
31 class A felony or (b) any class B or class C felony as defined in arti-
32 cle one hundred thirty of the penal law committed or attempted to be
33 committed by a person eighteen years of age or older against a person
34 less than eighteen years of age. In either case the court must commit or
35 remand the defendant to the custody of the sheriff.
36 [7.] 5. Notwithstanding the provisions of [subdivisions] subdivision
37 two[, three and four] of this section, a superior court may not order
38 recognizance, release under non-monetary conditions or, where author-
39 ized, bail when the defendant is charged with a felony unless and until
40 the district attorney has had an opportunity to be heard in the matter
41 and such court and counsel for the defendant have been furnished with a
42 report as described in subparagraph (ii) of paragraph (b) of subdivision
43 two of section 530.20 of this article.
44 § 12. This act shall take effect immediately.
