NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5033A
SPONSOR: O'Donnell TITLE OF BILL: An act to amend the criminal procedure law and the
judiciary law, in relation to enacting the "bail elimination act of
2018"; and to repeal certain provisions of the criminal procedure law
and the insurance law relating to the posting of bail
PURPOSE OR GENERAL IDEA OF BILL:
To end the use of monetary bail and improve our criminal justice system.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 provides the title of the bill as the "Bail Elimination Act of
2018.
Section 2 amends section 500.10 of the criminal procedure law amending
definitions for pretrial release provisions of the criminal procedure
law including a new 3-a defining release under non-monetary conditions,
and deletes references to monetary bail.
Section 3 amends section 510.10 of the criminal procedure law providing
for release on recognizance or release on non-monetary conditions.
Section 4 amends section 510.20 of the criminal procedure law provides
for change of a securing order based on a material change of circum-
stances and requires the least restrictive means for any such order
requires that when motion is made due to violation of securing order,
that court consider nature, will fullness and seriousness of violation.
Section 5 amends section 510.30 of the criminal procedure law provides
the factors for a court to determine a securing order.
Section 6 amends section 510.40 of the criminal procedure law requires
court notification to defendant of any conditions of release, the poten-
tial penalties for violating conditions, and requires court date notifi-
cations to such individuals.
Section 7 amends section 510.43 of the criminal procedure law to require
the court notify defendants of court dates and allows courts to partner
with pretrial service agencies for such notifications.
Section 8 amends section 510.45 of the criminal procedure law providing
for the OCA certification of pretrial services agencies in each county
which shall be public or private non-profit entities.
Section 9 amends section 510.50 of the criminal procedure law removing
references to bail and requiring notification 48 hours in advance of
request to appear in court prior to issuance of a bench warrant.
Section 10 repeals article 520 of the criminal procedure law, removing
references to bail.
Section 11 amends the article heading of article 530 of the criminal
procedure law to reflect removal of bail.
Section 12 amends section 530.10 of the criminal procedure law to remove
a reference to bail.
Section 13 amends subdivision 4 of section 530.11 of the criminal proce-
dure law removing a reference to bail.
Section 14 amends paragraph (a) of subdivision 8 of section 530.13 of
the criminal procedure law removing a reference to bail.
Section 15 amends the opening paragraph of subdivision 1 of section
530.13 of the criminal procedure law removing a reference to bail.
Section 16 amends subdivisions 9 and 11 of section 530.12 of the crimi-
nal procedure law removing references to bail.
Section 17 amends section 530.20 of the criminal procedure law provides
for process of release by a local criminal court
Section 18 amends the section heading, subdivisions 1 and 2 of section
530.30 of the criminal procedure law to provide for superior court
review of a securing order determination when case is in local criminal
court.
Section 19 amends section 530.40 of the criminal procedure law to
provide for process of release by a superior court.
Section 20 amends subdivision 1 of section 530.45 of the criminal proce-
dure law removing references to bail.
Section 21 repeals section 530.60 of the criminal procedure law.
Section 22 amends title p of part 3 of the criminal procedure law adding
a new article 545 providing for pretrial detention under limited circum-
stances for certain offenders who pose a high risk of intentional flight
for the purpose of evading criminal prosecution. Provides strict limit
on time an individual may be detained based upon severity of crime
charged.
Section 23 repeals Article 68 of the Insurance Law, removing the
provisions regarding bail bonds.
Section 24 amends paragraph (a) of subdivision 9 of Section 216.05 of
the criminal procedure law, removing bail from section of law regarding
judicial diversion programs
Section 25 amends subdivision 2 of section 620.40 of the criminal proce-
dure law to remove bail as a release option for material witnesses.
Section 26 amends subdivisions 2 and 3 of section 620.50 of the criminal
procedure law to remove bail as a release option for material witnesses.
Section 27 amends section 216 of the judiciary law, adding a new subdi-
vision 5 requiring OCA to collect and report data about pretrial
release.
Section 28 establishes the effective date of November 1, 2019.
JUSTIFICATION:
One of the central tenets of our criminal justice system is "innocent
until proven guilty", yet the current system of bail has allowed the
incarceration of thousands of New Yorkers every year without having been
convicted of a crime. The current system does nothing but to incarcerate
indigent offenders. The purpose of bail is solely to ensure the defend-
ant's future appearance in court. The data is clear: cash bail does not
do secure a defendant's appearance better than non-financial conditional
release. This bill would correct one of the great injustices of our
current criminal justice system, and allow New York to be the national
leader in criminal justice reform.
PRIOR LEGISLATIVE HISTORY:
A.8551 (2015-16)
FISCAL IMPLICATIONS:
This bill would result in savings to the state as a result of fewer
individuals incarcerated in county correctional facilities.
EFFECTIVE DATE:
This act shall take effect November 1, 2019.
STATE OF NEW YORK
________________________________________________________________________
5033--A
2017-2018 Regular Sessions
IN ASSEMBLY
February 6, 2017
___________
Introduced by M. of A. O'DONNELL, LUPARDO, JAFFEE, ORTIZ, D'URSO,
RIVERA, BARRON, GOTTFRIED, DAVILA, DE LA ROSA, SEPULVEDA, PELLEGRINO
-- Multi-Sponsored by -- M. of A. SIMON -- read once and referred to
the Committee on Codes -- recommitted to the Committee on Codes in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law and the judiciary law, in
relation to enacting the "bail elimination act of 2018"; and to repeal
certain provisions of the criminal procedure law and the insurance law
relating to the posting of bail
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "bail elimination act of 2018".
3 § 2. Subdivisions 1, 2, 4, 5 and 6 of section 500.10 of the criminal
4 procedure law are amended and a new subdivision 3-a is added to read as
5 follows:
6 1. "Principal" means a defendant in a criminal action or proceeding,
7 or a person adjudged a material witness therein, or any other person so
8 involved therein that [he] the principal may by law be compelled to
9 appear before a court for the purpose of having such court exercise
10 control over [his] the principal's person to secure [his] the princi-
11 pal's future attendance at the action or proceeding when required, and
12 who in fact either is before the court for such purpose or has been
13 before it and been subjected to such control.
14 2. "Release on own recognizance." A court releases a principal on
15 [his] the principal's own recognizance when, having acquired control
16 over [his] the principal's person, it permits [him] the principal to be
17 at liberty during the pendency of the criminal action or proceeding
18 involved upon condition that [he] the principal will appear thereat
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08752-03-8
A. 5033--A 2
1 whenever [his] the principal's attendance may be required and will at
2 all times render [himself] the principal amenable to the orders and
3 processes of the court.
4 3-a. "Release under non-monetary conditions." A court releases a prin-
5 cipal under non-monetary conditions when, having acquired control over a
6 person, it permits the person to be at liberty during the pendency of
7 the criminal action under conditions set by the court, which shall be
8 the least restrictive that will reasonably assure the principal's
9 appearance in court. Such conditions may include, among others, that the
10 principal shall be in contact with a pretrial services agency serving
11 principals in that county; that the principal shall abide by specified
12 restrictions on travel that are reasonably related to an actual risk of
13 intentional flight from the jurisdiction; that the principal shall
14 refrain from possessing a firearm, destructive device or other dangerous
15 weapon; that the person be placed in pretrial supervision with a
16 pretrial services agency serving principals in that county.
17 4. "Commit to the custody of the sheriff." A court commits a principal
18 to the custody of the sheriff when, having acquired control over his
19 person, it orders that he be confined in the custody of the sheriff
20 [during the pendency of the criminal action or proceeding involved]
21 pending the outcome of a hearing as to whether the individual shall be
22 ordered into pretrial detention as specified in article five hundred
23 forty-five of this title.
24 5. "Securing order" means an order of a court [committing a principal
25 to the custody of the sheriff, or fixing bail, or releasing him on his
26 own recognizance] that either releases a principal on personal recogni-
27 zance, or releases the principal under non-monetary conditions, all with
28 the direction that the principal return to court for future court
29 appearances and to be at all times amendable to the orders and processes
30 of the court.
31 6. ["Order of recognizance or bail" means a securing order releasing a
32 principal on his own recognizance or fixing bail] "Pretrial detention."
33 A court may commit a principal to pretrial detention if, after a hearing
34 and making such findings as specified in article five hundred forty-five
35 of this title, a judge so orders detention.
36 § 3. Subdivisions 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19
37 of section 500.10 of the criminal procedure law are REPEALED, and subdi-
38 vision 20 is renumbered subdivision 7.
39 § 4. Section 510.10 of the criminal procedure law, as amended by chap-
40 ter 459 of the laws of 1984, is amended to read as follows:
41 § 510.10 Securing order; when required; alternatives available; stand-
42 ard to be applied.
43 1. When a principal, whose future court attendance at a criminal
44 action or proceeding is or may be required, initially comes under the
45 control of a court, such court [must] shall, by a securing order,
46 [either release him on his own recognizance, fix bail or commit him to
47 the custody of the sheriff] release the principal pending trial on the
48 principal's personal recognizance, unless the court finds on the record
49 that release on recognizance will not reasonably assure the individual's
50 court attendance. In such instances, the court will release the individ-
51 ual under non-monetary conditions, selecting the least restrictive
52 alternative that will reasonably assure the principal's court attend-
53 ance. The court will support its choice of alternative on the record. A
54 principal shall not be required to pay for any part of the cost of
55 release under non-monetary conditions.
A. 5033--A 3
1 2. Notwithstanding the provisions of subdivision one of this section,
2 in cases where the people move for pretrial detention the court may
3 commit the defendant to the custody of the sheriff or issue a securing
4 order in accordance with article five hundred forty-five of this title.
5 3. When a securing order is revoked or otherwise terminated in the
6 course of an uncompleted action or proceeding but the principal's future
7 court attendance still is or may be required and [he] the principal is
8 still under the control of a court, a new securing order must be issued.
9 When the court revokes or otherwise terminates a [securing] any order
10 which committed the principal to the custody of the sheriff, the court
11 shall give written notification to the sheriff of such revocation or
12 termination of [the securing] such order.
13 § 5. Section 510.20 of the criminal procedure law is amended to read
14 as follows:
15 § 510.20 Application for [recognizance or bail; making and determi-
16 nation thereof in general] a change in securing order based
17 on a material change of circumstances.
18 1. Upon any occasion when a court [is required to issue] has issued a
19 securing order with respect to a principal, [or at any time when a prin-
20 cipal is confined in the custody of the sheriff as a result of a previ-
21 ously issued securing order, he] the principal or the people may make an
22 application for [recognizance or bail] a different securing order due to
23 a material change of circumstances.
24 2. Upon such application, the principal or the people must be
25 accorded an opportunity to be heard and to contend that [an order of
26 recognizance or bail] a different securing order must or should issue[,
27 that the court should release him on his own recognizance rather than
28 fix bail, and that if bail is fixed it should be in a suggested amount
29 and form] because, due to a material change in circumstances, the
30 current order is either too restrictive or not restrictive enough to
31 reasonably ensure a defendant's appearance in court. The court shall
32 select the least restrictive non-monetary condition or conditions that
33 will reasonably assure the principal's court attendance.
34 3. Where the people make an application for a different securing order
35 on the basis of a violation of an existing securing order, the court
36 shall consider the nature, willfulness, and seriousness of the violation
37 and shall select the least restrictive non-monetary condition or condi-
38 tions that will reasonably assure the principal's court attendance.
39 § 6. Section 510.30 of the criminal procedure law, subparagraph (v) of
40 paragraph (a) of subdivision 2 as amended by chapter 920 of the laws of
41 1982, subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered
42 by chapter 447 of the laws of 1977, subparagraph (vii) as added and
43 subparagraphs (viii) and (ix) of paragraph (a) of subdivision 2 as
44 renumbered by section 1 of part D of chapter 491 of the laws of 2012 and
45 subdivision 3 as added by chapter 788 of the laws of 1981, is amended to
46 read as follows:
47 § 510.30 Application for [recognizance or bail] securing order; rules of
48 law and criteria controlling determination.
49 [1. Determinations of applications for recognizance or bail are not in
50 all cases discretionary but are subject to rules, prescribed in article
51 five hundred thirty and other provisions of law relating to specific
52 kinds of criminal actions and proceedings, providing (a) that in some
53 circumstances such an application must as a matter of law be granted,
54 (b) that in others it must as a matter of law be denied and the princi-
55 pal committed to or retained in the custody of the sheriff, and (c) that
A. 5033--A 4
1 in others the granting or denial thereof is a matter of judicial
2 discretion.
3 2. To the extent that the issuance of an order of recognizance or bail
4 and the terms thereof are matters of discretion rather than of law, an
5 application is determined on the basis of the following factors and
6 criteria:
7 (a)] With respect to any principal, the court must consider the kind
8 and degree of control or restriction that is necessary to secure his
9 court attendance when required. In determining that matter, the court
10 must, on the basis of available information, consider and take into
11 account:
12 [(i) The principal's character, reputation, habits and mental condi-
13 tion;
14 (ii) His employment and financial resources; and
15 (iii) His family ties and the length of his residence if any in the
16 community; and
17 (iv) His]
18 1. Information about the principal that is relevant to court appear-
19 ance, including, but not limited to, the principal's activities, history
20 and community ties;
21 2. If the principal is a defendant, the charges facing the principal;
22 3. The principal's criminal record if any; [and
23 (v) His] 4. The principal's record of previous adjudication as a juve-
24 nile delinquent, as retained pursuant to section 354.2 of the family
25 court act, or, of pending cases where fingerprints are retained pursuant
26 to section 306.1 of such act, or a youthful offender, if any; [and
27 (vi) His] 5. The principal's previous record if any in responding to
28 court appearances when required or with respect to intentional flight to
29 avoid criminal prosecution; [and
30 (vii)] 6. Where the principal is charged with a crime or crimes
31 against a member or members of the same family or household as that term
32 is defined in subdivision one of section 530.11 of this title, the
33 following factors:
34 [(A)] (i) any violation by the principal of an order of protection
35 issued by any court for the protection of a member or members of the
36 same family or household as that term is defined in subdivision one of
37 section 530.11 of this title, whether or not such order of protection is
38 currently in effect; and
39 [(B)] (ii) the principal's history of use or possession of a firearm;
40 [and
41 (viii)] 7. If [he] the principal is a defendant, the weight of the
42 evidence against [him] the principal in the pending criminal action and
43 any other factor indicating probability or improbability of conviction;
44 or, in the case of an application for [bail or recognizance] a securing
45 order pending appeal, the merit or lack of merit of the appeal; [and
46 (ix)] 8. If [he] the principal is a defendant, the sentence which may
47 be or has been imposed upon conviction[.
48 (b) Where the principal is a defendant-appellant in a pending appeal
49 from a judgment of conviction, the court must also consider the likeli-
50 hood of ultimate reversal of the judgment. A determination that the
51 appeal is palpably without merit alone justifies, but does not require,
52 a denial of the application, regardless of any determination made with
53 respect to the factors specified in paragraph (a).
54 3. When bail or recognizance is ordered, the court shall inform the
55 principal, if he is a defendant charged with the commission of a felony,
56 that the release is conditional and that the court may revoke the order
A. 5033--A 5
1 of release and commit the principal to the custody of the sheriff in
2 accordance with the provisions of subdivision two of section 530.60 of
3 this chapter if he commits a subsequent felony while at liberty upon
4 such order.]; and
5 9. If the principal is a defendant-appellant in a pending appeal from
6 a judgment of conviction, the court must also consider the likelihood of
7 ultimate reversal of the judgment. A determination that the appeal is
8 palpably without merit alone justifies, but does not require, a denial
9 of the application, regardless of any determination made with respect to
10 the factors specified in this paragraph.
11 § 7. Section 510.40 of the criminal procedure law is amended to read
12 as follows:
13 § 510.40 [Application for recognizance or bail; determination thereof,
14 form of securing order and execution thereof] Notification
15 to principal by court of conditions of release and penal-
16 ties for violations of release.
17 1. [An application for recognizance or bail must be determined by a
18 securing order which either:
19 (a) Grants the application and releases the principal on his own
20 recognizance; or
21 (b) Grants the application and fixes bail; or
22 (c) Denies the application and commits the principal to, or retains
23 him in, the custody of the sheriff.
24 2.] Upon ordering that a principal be released on [his] the princi-
25 pal's own recognizance, or released under non-monetary conditions the
26 court must direct [him] the principal to appear in the criminal action
27 or proceeding involved whenever [his] the principal's attendance may be
28 required and to [render himself] be at all times amenable to the orders
29 and processes of the court. If the principal is a defendant, the court
30 shall also direct the defendant not to commit a crime while at liberty
31 upon the court's securing order. If such principal is in the custody of
32 the sheriff [or at liberty upon bail] at the time of the order, the
33 court must direct that [he] the principal be discharged from such custo-
34 dy [or, as the case may be, that his bail be exonerated].
35 [3. Upon the issuance of an order fixing bail, and upon the posting
36 thereof, the court must examine the bail to determine whether it
37 complies with the order. If it does, the court must, in the absence of
38 some factor or circumstance which in law requires or authorizes disap-
39 proval thereof, approve the bail and must issue a certificate of
40 release, authorizing the principal to be at liberty, and, if he is in
41 the custody of the sheriff at the time, directing the sheriff to
42 discharge him therefrom. If the bail fixed is not posted, or is not
43 approved after being posted, the court must order that the principal be
44 committed to the custody of the sheriff.]
45 2. If the principal is released under non-monetary conditions, the
46 court shall, in the document authorizing the principal's release, notify
47 the principal of:
48 (a) any of the conditions under which the principal is subject, in
49 addition to the directions in subdivision one of this section, in a
50 manner sufficiently clear and specific to serve as a guide for the prin-
51 cipal's conduct; and
52 (b) the consequences for violation of those conditions, which could
53 include revoking of the securing order, setting of a more restrictive
54 securing order, or, after the hearing as specified in article five
55 hundred forty-five of this title, pretrial detention.
A. 5033--A 6
1 3. The court shall notify all principals released under non-monetary
2 conditions and on recognizance of all court appearances in advance by
3 text message, telephone call, electronic mail, or first class mail.
4 § 8. The criminal procedure law is amended by adding two new sections
5 510.43 and 510.45 to read as follows:
6 § 510.43 Court appearance reminders.
7 The court shall notify all principals released on recognizance or
8 under non-monetary conditions of all court appearances by text message,
9 telephone call, electronic mail, or first class mail. The court may
10 partner with the certified pretrial services agency or agencies in that
11 county to provide such notifications.
12 § 510.45 Pretrial service agencies.
13 The office of court administration shall certify a pretrial services
14 agency or agencies in each county to monitor principals released under
15 conditions of non-monetary release. Such agency or agencies shall be a
16 public entity under the supervision and control of a county or munici-
17 pality or a non-profit entity under contract to the county or munici-
18 pality. A county shall be authorized to enter in to a contract with
19 another county or municipality in the state to monitor principals
20 released under conditions of non-monetary release in its county but
21 shall not contract with any private entity for such purposes. Any crite-
22 ria, instrument, or tool used to determine a principal's eligibility for
23 non-monetary conditions or to determine the condition or conditions to
24 be monitored by a pretrial services agency shall be made available to
25 any person upon written or oral request.
26 § 9. Section 510.50 of the criminal procedure law is amended to read
27 as follows:
28 § 510.50 Enforcement of securing order.
29 When the attendance of a principal confined in the custody of the
30 sheriff or pursuant to a pretrial detention order is required at the
31 criminal action or proceeding at a particular time and place, the court
32 may compel such attendance by directing the sheriff to produce him or
33 her at such time and place. If the principal is at liberty on [his] the
34 principal's own recognizance [or on bail, his] or non-monetary condi-
35 tions the principal's attendance may be achieved or compelled by various
36 methods, including notification and the issuance of a bench warrant,
37 prescribed by law in provisions governing such matters with respect to
38 the particular kind of action or proceeding involved. Prior to issuing a
39 bench warrant, the court must provide the principal forty-eight hours
40 advance notice that he or she is required to appear in court in order to
41 give the principal the opportunity to appear voluntarily.
42 § 10. Article 520 of the criminal procedure law is REPEALED.
43 § 11. The article heading of article 530 of the criminal procedure law
44 is amended to read as follows:
45 SECURING ORDERS [OF RECOGNIZANCE
46 OR BAIL] WITH RESPECT TO DEFENDANTS IN CRIMINAL
47 ACTIONS AND PROCEEDINGS--WHEN AND BY WHAT COURTS
48 AUTHORIZED
49 § 12. Section 530.10 of the criminal procedure law is amended to read
50 as follows:
51 § 530.10 [Order of recognizance or bail] Securing order; in general.
52 Under circumstances prescribed in this article, a court, upon applica-
53 tion of a defendant charged with or convicted of an offense, is required
54 [or authorized to order bail or recognizance] to issue a securing order
55 for the release or prospective release of such defendant during the
56 pendency of either:
A. 5033--A 7
1 1. A criminal action based upon such charge; or
2 2. An appeal taken by the defendant from a judgment of conviction or a
3 sentence or from an order of an intermediate appellate court affirming
4 or modifying a judgment of conviction or a sentence.
5 § 13. Subdivision 4 of section 530.11 of the criminal procedure law,
6 as added by chapter 186 of the laws of 1997, is amended to read as
7 follows:
8 4. When a person is arrested for an alleged family offense or an
9 alleged violation of an order of protection or temporary order of
10 protection or arrested pursuant to a warrant issued by the supreme or
11 family court, and the supreme or family court, as applicable, is not in
12 session, such person shall be brought before a local criminal court in
13 the county of arrest or in the county in which such warrant is return-
14 able pursuant to article one hundred twenty of this chapter. Such local
15 criminal court may issue any order authorized under subdivision eleven
16 of section 530.12 of this article, section one hundred fifty-four-d or
17 one hundred fifty-five of the family court act or subdivision three-b of
18 section two hundred forty or subdivision two-a of section two hundred
19 fifty-two of the domestic relations law, in addition to discharging
20 other arraignment responsibilities as set forth in this chapter. In
21 making such order, the local criminal court shall consider the [bail
22 recommendation] securing order, if any, made by the supreme or family
23 court as indicated on the warrant or certificate of warrant. Unless the
24 petitioner or complainant requests otherwise, the court, in addition to
25 scheduling further criminal proceedings, if any, regarding such alleged
26 family offense or violation allegation, shall make such matter return-
27 able in the supreme or family court, as applicable, on the next day such
28 court is in session.
29 § 14. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
30 procedure law, as added by chapter 388 of the laws of 1984, is amended
31 to read as follows:
32 (a) revoke [an order of recognizance or bail] a securing order and
33 commit the defendant to custody; or
34 § 15. The opening paragraph of subdivision 1 of section 530.13 of the
35 criminal procedure law, as amended by chapter 137 of the laws of 2007,
36 is amended to read as follows:
37 When any criminal action is pending, and the court has not issued a
38 temporary order of protection pursuant to section 530.12 of this arti-
39 cle, the court, in addition to the other powers conferred upon it by
40 this chapter, may for good cause shown issue a temporary order of
41 protection in conjunction with any securing order [committing the
42 defendant to the custody of the sheriff or as a condition of a pre-trial
43 release, or as a condition of release on bail or an adjournment in
44 contemplation of dismissal]. In addition to any other conditions, such
45 an order may require that the defendant:
46 § 16. Subdivisions 9 and 11 of section 530.12 of the criminal proce-
47 dure law, subdivision 9 as amended by section 81 of subpart B of part C
48 of chapter 62 of the laws of 2011, subdivision 11 as amended by chapter
49 498 of the laws of 1993, the opening paragraph of subdivision 11 as
50 amended by chapter 597 of the laws of 1998, paragraph (a) of subdivision
51 11 as amended by chapter 222 of the laws of 1994 and paragraph (d) of
52 subdivision 11 as amended by chapter 644 of the laws of 1996, are
53 amended to read as follows:
54 9. If no warrant, order or temporary order of protection has been
55 issued by the court, and an act alleged to be a family offense as
56 defined in section 530.11 of this [chapter] article is the basis of the
A. 5033--A 8
1 arrest, the magistrate shall permit the complainant to file a petition,
2 information or accusatory instrument and for reasonable cause shown,
3 shall thereupon hold such respondent or defendant, [admit to, fix or
4 accept bail,] establish a securing order or parole him or her for hear-
5 ing before the family court or appropriate criminal court as the
6 complainant shall choose in accordance with the provisions of section
7 530.11 of this [chapter] article.
8 11. If a defendant is brought before the court for failure to obey any
9 lawful order issued under this section, or an order of protection issued
10 by a court of competent jurisdiction in another state, territorial or
11 tribal jurisdiction, and if, after hearing, the court is satisfied by
12 competent proof that the defendant has willfully failed to obey any such
13 order, the court may:
14 (a) revoke [an order of recognizance or revoke an order of bail or
15 order forfeiture of such bail] a securing order and commit the defendant
16 to custody; or
17 (b) restore the case to the calendar when there has been an adjourn-
18 ment in contemplation of dismissal and commit the defendant to custody;
19 or
20 (c) revoke a conditional discharge in accordance with section 410.70
21 of this chapter and impose probation supervision or impose a sentence of
22 imprisonment in accordance with the penal law based on the original
23 conviction; or
24 (d) revoke probation in accordance with section 410.70 of this chapter
25 and impose a sentence of imprisonment in accordance with the penal law
26 based on the original conviction. In addition, if the act which consti-
27 tutes the violation of the order of protection or temporary order of
28 protection is a crime or a violation the defendant may be charged with
29 and tried for that crime or violation.
30 § 17. Section 530.20 of the criminal procedure law, as amended by
31 chapter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of
32 subdivision 2 as amended by chapter 218 of the laws of 1979, is amended
33 to read as follows:
34 § 530.20 [Order of recognizance or bail;] Securing order by local crimi-
35 nal court when action is pending therein.
36 1. When a criminal action is pending in a local criminal court, such
37 court, upon application of a defendant, [must or may order recognizance
38 or bail as follows:
39 1. When the defendant is charged, by information, simplified informa-
40 tion, prosecutor's information or misdemeanor complaint, with an offense
41 or offenses of less than felony grade only, the court must order recog-
42 nizance or bail.
43 2. When the defendant is charged, by felony complaint, with a felony,
44 the court may, in its discretion, order recognizance or bail except as
45 otherwise provided in this subdivision:
46 (a) A city court, a town court or a village court may not order recog-
47 nizance or bail when (i) the defendant is charged with a class A felony,
48 or (ii) it appears that the defendant has two previous felony
49 convictions;
50 (b)] shall, by a securing order, release the defendant pending trial
51 on the defendant's personal recognizance, unless the court finds on the
52 record that release on recognizance will not reasonably assure the
53 defendant's court attendance. In such instances, the court will release
54 the defendant under non-monetary conditions, selecting the least
55 restrictive alternative that will reasonably assure the defendant's
56 court attendance. The court will support its choice of alternative on
A. 5033--A 9
1 the record. The defendant shall not be required to pay for any part of
2 the cost of release under non-monetary conditions.
3 2. Notwithstanding the provisions of subdivision one of this section,
4 in cases where the people move for pretrial detention, the court may
5 commit the defendant to the custody of the sheriff or issue a securing
6 order in accordance with article five hundred forty-five of this title.
7 3. Notwithstanding the provisions of subdivision one or two of this
8 section, in cases where the defendant is charged by felony complaint
9 with a felony and either is charged with a class A felony, or it appears
10 that the defendant has two previous felony convictions within the mean-
11 ing of subdivision one of section 70.08 or 70.10 of the penal law; the
12 court, a city court, town court or a village court shall commit the
13 defendant to the custody of the sheriff for the county or superior court
14 to make a determination about a securing order within three days.
15 4. No local criminal court may order [recognizance or bail] a securing
16 order with respect to a defendant charged with a felony unless and
17 until[:
18 (i) The district attorney has been heard in the matter or, after know-
19 ledge or notice of the application and reasonable opportunity to be
20 heard, has failed to appear at the proceeding or has otherwise waived
21 his right to do so; and
22 (ii) The] the court [has], and counsel for the defense, have been
23 furnished with a report of the division of criminal justice services
24 concerning the defendant's criminal record if any or with a police
25 department report with respect to the defendant's prior arrest and
26 conviction record, if any. If neither report is available, the court,
27 with the consent of the district attorney, may dispense with this
28 requirement; provided, however, that in an emergency, including but not
29 limited to a substantial impairment in the ability of such division or
30 police department to timely furnish such report, such consent shall not
31 be required if, for reasons stated on the record, the court deems it
32 unnecessary. [When the court has been furnished with any such report or
33 record, it shall furnish a copy thereof to counsel for the defendant or,
34 if the defendant is not represented by counsel, to the defendant.]
35 § 18. The section heading and subdivisions 1 and 2 of section 530.30
36 of the criminal procedure law, subdivision 2 as amended by chapter 762
37 of the laws of 1971, are amended to read as follows:
38 [Order of recognizance or bail;] Securing order by superior court
39 judge when action is pending in local criminal court.
40 1. When a criminal action is pending in a local criminal court,
41 [other than one consisting of a superior court judge sitting as such,] a
42 judge of a superior court holding a term thereof in the county, upon
43 application of a defendant, and within one working day, may order
44 [recognizance or bail] a securing order when such local criminal court:
45 (a) Lacks authority to issue such an order, pursuant to [paragraph
46 (a) of] subdivision [two] four of section 530.20 of this article; or
47 (b) Has denied an application for recognizance [or bail]; or
48 (c) Has [fixed bail which is excessive] improperly granted a request
49 for a pretrial detention hearing; or
50 (d) Has set a securing order of release under non-monetary conditions
51 which are more restrictive than necessary to reasonably ensure court
52 attendance. In such case, such superior court judge may vacate the order
53 of such local criminal court and release the defendant on [his own]
54 recognizance [or fix bail in a lesser amount or in a less burdensome
55 form] or under release with conditions, whichever is the least restric-
A. 5033--A 10
1 tive alternative that will reasonably assure defendant's appearance in
2 court. The court will support its choice of alternative on the record.
3 2. Notwithstanding the provisions of subdivision one of this section,
4 when the defendant is charged with a felony in a local criminal court, a
5 superior court judge may not [order recognizance or bail] issue a secur-
6 ing order unless and until the district attorney has had an opportunity
7 to be heard in the matter and such judge has been furnished with a
8 report as described in [subparagraph (ii) of paragraph (b) of] subdivi-
9 sion [two] four of section 530.20 of this article.
10 § 19. Section 530.40 of the criminal procedure law, subdivision 3 as
11 amended by chapter 264 of the laws of 2003 and subdivision 4 as amended
12 by chapter 762 of the laws of 1971, is amended to read as follows:
13 § 530.40 [Order of recognizance or bail;] Securing order by superior
14 court when action is pending therein.
15 When a criminal action is pending in a superior court, such court,
16 upon application of a defendant, [must or may order recognizance or
17 bail] shall issue a securing order as follows:
18 1. [When the defendant is charged with an offense or offenses of less
19 than felony grade only, the court must order recognizance or bail.
20 2. When the defendant is charged with a felony, the court may, in its
21 discretion, order recognizance or bail. In any such case in which an
22 indictment (a) has resulted from an order of a local criminal court
23 holding the defendant for the action of the grand jury, or (b) was filed
24 at a time when a felony complaint charging the same conduct was pending
25 in a local criminal court, and in which such local criminal court or a
26 superior court judge has issued an order of recognizance or bail which
27 is still effective, the superior court's order may be in the form of a
28 direction continuing the effectiveness of the previous order.] Release
29 the defendant pending trail on the defendant's personal recognizance,
30 unless the court finds on the record that release on recognizance will
31 not reasonably assure the defendant's court attendance. In such
32 instances, the court will release the defendant under non-monetary
33 conditions, selecting the least restrictive alternative that will
34 reasonably assure the defendant's court attendance. The court will
35 support its choice of alternative on the record. The defendant shall not
36 be required to pay for any part of the cost of release under non-mone-
37 tary conditions.
38 2. Notwithstanding the provisions of subdivision one of this section,
39 in cases where the people move for pretrial detention, the court may
40 commit the defendant to the custody of the sheriff or issue a securing
41 order in accordance with article five hundred forty-five of this title.
42 3. Notwithstanding the provisions of subdivision [two] one of this
43 section, a superior court may not [order recognizance or bail] issue a
44 securing order, or permit a defendant to remain at liberty pursuant to
45 an existing order, after [he] the defendant has been convicted of
46 either: (a) a class A felony or (b) any class B or class C felony
47 defined in article one hundred thirty of the penal law committed or
48 attempted to be committed by a person eighteen years of age or older
49 against a person less than eighteen years of age. In either case the
50 court must commit or remand the defendant to the custody of the sheriff.
51 4. Notwithstanding the provisions of subdivision [two] one of this
52 section, a superior court may not [order recognizance or bail] issue a
53 securing order when the defendant is charged with a felony unless and
54 until the district attorney has had an opportunity to be heard in the
55 matter and such court [has] and counsel for the defense have been
A. 5033--A 11
1 furnished with a report as described in [subparagraph (ii) of paragraph
2 (b) of] subdivision [two] four of section 530.20 of this article.
3 § 20. Subdivision 1 of section 530.45 of the criminal procedure law,
4 as amended by chapter 264 of the laws of 2003, is amended to read as
5 follows:
6 1. When the defendant is at liberty in the course of a criminal action
7 as a result of a prior [order of recognizance or bail] securing order
8 and the court revokes such order [and then either fixes no bail or fixes
9 bail in a greater amount or in a more burdensome form than was previous-
10 ly fixed and remands or commits defendant to the custody of the sheriff,
11 a judge designated in subdivision two, upon application of the defendant
12 following conviction of an offense other than a class A felony or a
13 class B or class C felony offense defined in article one hundred thirty
14 of the penal law committed or attempted to be committed by a person
15 eighteen years of age or older against a person less than eighteen years
16 of age, and before sentencing, may issue a securing order and either
17 release defendant on his own recognizance, or fix bail, or fix bail in a
18 lesser amount or], such court may issue a more restrictive securing
19 order in a less [burdensome] restrictive form than fixed by the court in
20 which the conviction was entered.
21 § 21. Section 530.60 of the criminal procedure law is REPEALED.
22 § 22. Title P of the criminal procedure law is amended by adding a new
23 article 545 to read as follows:
24 ARTICLE 545--PRETRIAL DETENTION
25 Section 545.10 Pretrial detention; when ordered.
26 545.20 Eligibility for a pretrial detention hearing.
27 545.30 Pretrial detention hearing.
28 545.40 Order for pretrial detention.
29 545.50 Reopening of pretrial hearing.
30 545.60 Length of detention for defendant held under a pretrial
31 detention order.
32 § 545.10 Pretrial detention; when ordered.
33 A county or superior court may order, before trial, the detention of a
34 defendant if the people seek detention of the defendant under section
35 545.20 of this article, and, after a hearing pursuant to section 545.30
36 of this article, the court finds clear and convincing evidence that the
37 defendant poses a high risk of intentional flight for the purpose of
38 evading criminal prosecution and that no conditions or combination of
39 conditions in the community will reasonably assure the defendant's
40 return to court.
41 § 545.20 Eligibility for a pretrial detention hearing.
42 1. The people may make a motion seeking pretrial detention of a
43 defendant at any time, except that where the people did not so move when
44 the defendant initially came under control of the court, the people must
45 show a change of circumstances or that information exists that was not
46 known to the people when the defendant initially came under control of
47 the court. The people may seek the pretrial detention of a defendant:
48 (a) charged with a felony where there is an allegation that the
49 defendant, with intent to cause serious physical injury to another
50 person, caused such injury to such person or to a third person, or
51 attempted to cause such injury to such person or to a third person;
52 (b) charged with an offense where, if convicted, the defendant would
53 be subject to a sentence under section 70.08 of the penal law;
54 (c) charged with offenses involving witness intimidation under section
55 215.15, 215.16, or 215.17 of the penal law; or
A. 5033--A 12
1 (d) who has willfully and persistently failed to appear in court in
2 the instant case.
3 2. If, upon such motion by the people, the court finds that the people
4 have shown a likelihood of success on their motion for pretrial
5 detention, the court may order a hearing pursuant to section 545.30 of
6 this article. Upon ordering a hearing pursuant to section 545.30 of this
7 article, the court shall either commit the defendant to the custody of
8 the sheriff or issue a securing order. The court will support its
9 choice of alternative on the record. If the defendant is at liberty, the
10 court may issue a warrant and have the defendant brought into custody of
11 the sheriff, except that, before a bench warrant may be issued, the
12 court must provide the defendant forty-eight hours advanced notice that
13 he or she is required to appear in court in order to give them the
14 opportunity to appear voluntarily.
15 § 545.30 Pretrial detention hearing.
16 1. A hearing shall be held within two working days of the court order-
17 ing a pretrial detention hearing. At the hearing, the defendant shall
18 have the right to be represented by counsel, and, if financially unable
19 to obtain counsel, to have counsel assigned. The defendant shall be
20 afforded an opportunity to testify, to present witnesses, to cross-exa-
21 mine witnesses who appear at the hearing, and to present information by
22 proffer or otherwise. The rules concerning the admissibility of
23 evidence in criminal trials do not apply to the presentation and consid-
24 eration of information during the hearing.
25 2. Prior to the hearing, the prosecution shall disclose to the defend-
26 ant, and permit the defendant to discover, inspect, copy or photograph
27 all statements or reports that relate to the prosecution's pretrial
28 detention motion that are in the possession, custody or control of the
29 prosecution, or persons under the prosecution's direction and control,
30 including:
31 (a) The complaint and supporting documents;
32 (b) Police reports;
33 (c) All statements, written or recorded or summarized in any writing
34 or recording, and the substance of all oral statements, made by the
35 defendant or a co-defendant;
36 (d) All statements, written or recorded or summarized in any writing
37 or recording, made by persons whom the prosecutor knows to have evidence
38 or information that relate to the subject matter of the case;
39 (e) All statements or reports upon which the prosecution relies in the
40 hearing; and
41 (f) All facts, evidence, and information favorable to the defendant,
42 including but not limited to information that tends to negate the
43 defendant's guilt or that tends to mitigate the defendant's culpability
44 as to a charged offense, or that tends to support a potential defense
45 thereto, or that tends to support a motion to suppress evidence on
46 constitutional or statutory grounds, or that would tend to reduce the
47 punishment of the defendant, or that is relevant to a witness's credi-
48 bility, without regard to the materiality of the information.
49 3. In hearings in cases for which there is no indictment, the people
50 shall establish probable cause that the eligible defendant committed the
51 charged offense. The people must establish by clear and convincing
52 evidence that the defendant poses a high risk of intentional flight for
53 the purpose of evading criminal prosecution and that no condition or
54 combination of conditions in the community will reasonably assure the
55 defendant's return to court.
A. 5033--A 13
1 4. In determining whether the defendant presents a high risk of inten-
2 tional flight for the purpose of evading criminal prosecution and wheth-
3 er no condition or combination of conditions in the community will
4 reasonably assure the defendant's return to court, the court may take
5 into account the following information:
6 (a) The nature and circumstances of the charged offense;
7 (b) The weight of the evidence against the defendant, except that the
8 court may consider the admissibility of any evidence sought to be
9 excluded;
10 (c) The defendant's current and prior history of failure to appear in
11 court whether such failures to appear were willful; and
12 (d) Whether, at the time of the current offense or arrest, the defend-
13 ant was on probation, parole, or on release pending trial, sentencing or
14 completion of a sentence in this state or other jurisdictions.
15 5. Nothing in this section shall infringe upon the defendant's right
16 to release pursuant to sections 170.70 and 180.80 of this chapter.
17 § 545.40 Order for pretrial detention.
18 In a pretrial detention order issued pursuant to section 545.10 of
19 this article, the court shall:
20 1. Include written findings of fact and a written statement of the
21 reasons for the detention; and
22 2. Direct that the eligible defendant be afforded reasonable opportu-
23 nity for private consultation with counsel.
24 § 545.50 Reopening of pretrial hearing.
25 A pretrial detention hearing may be re-opened, regardless of whether a
26 pretrial detention order has been previously issued, upon a motion by
27 the people or by the defendant, at any time before final disposition, if
28 the court finds either a change of circumstances or that information
29 exists that was not known to the people or to the defendant at the time
30 of the hearing, that has a material bearing on the issue of whether
31 defendant presents a high risk of intentional flight for the purpose of
32 evading criminal prosecution, and whether no condition or combination of
33 conditions in the community will reasonably assure the defendant's
34 return to court.
35 § 545.60 Length of detention for defendant held under a pretrial
36 detention order.
37 1. Where a defendant has been committed to the custody of the sheriff
38 in a criminal action, the defendant must be released on his or her own
39 recognizance or on non-monetary conditions of release if the defendant
40 has not been brought to trial within:
41 (a) one hundred twenty days from the defendant's arraignment on an
42 indictment or superior court information, or from the defendant's
43 commitment to the custody of the sheriff, whichever is later, in a crim-
44 inal action wherein the defendant is accused of one or more offenses, at
45 least one of which is a felony;
46 (b) thirty days from the defendant's commitment to the custody of the
47 sheriff in a criminal action wherein the defendant is accused of one or
48 more offenses, at least one of which is a misdemeanor punishable by a
49 sentence of imprisonment of more than three months and none of which is
50 a felony;
51 (c) fifteen days from the defendant's commitment to the custody of the
52 sheriff in a criminal action wherein the defendant is accused of one or
53 more offenses, at least one of which is a misdemeanor punishable by a
54 sentence of imprisonment of not more than three months and none of which
55 is a crime punishable by a sentence of imprisonment of more than three
56 months; or
A. 5033--A 14
1 (d) five days from the defendant's commitment to the custody of the
2 sheriff in a criminal action wherein the defendant is accused of one or
3 more offenses, at least one of which is a violation or vehicle and traf-
4 fic law infraction and none of which is a crime.
5 2. The time within which a defendant must be brought to trial for the
6 purposes of paragraphs (a) and (b) of subdivision one of this section
7 may be extended upon a showing of exceptional circumstances, but by no
8 more than two periods of up to twenty days each in a criminal action
9 wherein the defendant is accused of one or more offenses, at least one
10 of which is a felony, or one period of up to ten days in a criminal
11 action wherein the defendant is accused of one or more offenses, at
12 least one of which is a misdemeanor punishable by a sentence of impri-
13 sonment of more than three months and none of which is a felony. In
14 computing the time within which a defendant must be brought to trial for
15 the purposes of this subdivision, the following periods shall be
16 excluded:
17 (a) any period from the filing of the notice of appeal to the issuance
18 of the mandate in an interlocutory appeal;
19 (b) any period attributable to any examination to determine the
20 defendant's sanity or lack thereof or his or her mental or physical
21 competency to stand trial;
22 (c) any period attributable to the inability of the defendant to
23 participate in the defendant's defense because of mental incompetency or
24 physical incapacity; and
25 (d) any period in which the defendant is otherwise unavailable for
26 trial.
27 3. If the defendant has not been brought to trial within the applica-
28 ble time period established by this subdivision, the defendant shall be
29 released of his or her own recognizance or under non-monetary conditions
30 of release pending trial, unless:
31 (a) the trial is in progress;
32 (b) the trial has been delayed by the timely filing of motions,
33 excluding motions for continuances; or
34 (c) the trial has been delayed at the request of the defendant.
35 § 23. Article 68 of the insurance law is REPEALED.
36 § 24. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
37 procedure law, as amended by chapter 258 of the laws of 2015, 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 or has failed to appear
42 before the court as requested, the court shall direct the defendant to
43 appear or issue a bench warrant to a police officer or an appropriate
44 peace officer directing him or her to take the defendant into custody
45 and bring the defendant before the court without unnecessary delay;
46 provided, however, that under no circumstances shall a defendant who
47 requires treatment for opioid abuse or dependence be deemed to have
48 violated a release condition on the basis of his or her participation in
49 medically prescribed drug treatments under the care of a health care
50 professional licensed or certified under title eight of the education
51 law, acting within his or her lawful scope of practice. The provisions
52 of [subdivision one of] section [530.60] 545.50 of this chapter relating
53 to [revocation of recognizance or bail] issuance of securing orders
54 shall apply to such proceedings under this subdivision.
55 § 25. Subdivision 2 of section 620.40 of the criminal procedure law is
56 amended to read as follows:
A. 5033--A 15
1 2. If the proceeding is adjourned at the prospective witness'
2 instance, for the purpose of obtaining counsel or otherwise, the court
3 must order him to appear upon the adjourned date. The court may further
4 [fix bail] impose non-monetary conditions to secure his appearance upon
5 such date or until the proceeding is completed [and, upon default there-
6 of, may commit him to the custody of the sheriff for such period].
7 § 26. Subdivisions 2 and 3 of section 620.50 of the criminal procedure
8 law are amended to read as follows:
9 2. If the court is satisfied after such hearing that there is reason-
10 able cause to believe that the prospective witness (a) possesses infor-
11 mation material to the pending action or proceeding, and (b) will not be
12 amenable or respond to a subpoena at a time when his attendance will be
13 sought, it may issue a material witness order, adjudging [him] the indi-
14 vidual a material witness and [fixing bail to secure his] releasing the
15 individual on the individual's own recognizance unless the court finds
16 on the record that release on recognizance will not reasonably assure
17 the individual's court attendance. In such instances the court will
18 release the individual under non-monetary conditions, selecting the
19 least restrictive alternative that will reasonably ensure the individ-
20 ual's future attendance.
21 3. [A] When a material witness order [must be] is executed [as
22 follows:
23 (a) If the bail is posted and approved], if non-monetary conditions
24 are imposed by the court, the witness must[, as provided in subdivision
25 three of section 510.40,] be released and be permitted to remain at
26 liberty[; provided that, where the bail is posted by a person other than
27 the witness himself, he may not be so released except upon his signed
28 written consent thereto;
29 (b) If the bail is not posted, or if though posted it is not approved
30 by the court, the witness must, as provided in subdivision three of
31 section 510.40, be committed to the custody of the sheriff].
32 § 27. Section 216 of the judiciary law is amended by adding a new
33 subdivision 5 to read as follows:
34 5. The chief administrator of the courts shall collect data and report
35 annually regarding pretrial release and detention. Such data and report
36 shall contain information categorized by gender, racial and ethnic back-
37 ground, regarding the nature of the criminal offenses, the number of
38 individuals released on recognizance, the number of individuals released
39 on non-monetary conditions, including the conditions imposed, the number
40 of individuals committed to the custody of a sheriff prior to trial, the
41 rates of failure to appear and rearrest and any other such information
42 as the chief administrator may find necessary and appropriate.
43 § 28. This act shall take effect November 1, 2019.
