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A05033 Summary:

BILL NOA05033A
 
SAME ASSAME AS S03579-A
 
SPONSORO'Donnell
 
COSPNSRLupardo, Jaffee, Ortiz, D'Urso, Rivera, Barron, Gottfried, Davila, De La Rosa, Sepulveda, Pellegrino, Quart, Arroyo, Richardson, Hunter, Weprin, Epstein
 
MLTSPNSRSimon
 
Rpld Art 520, 530.60, 500.10 subs 7 - 19, amd CP L, generally, rpld Art 68, Ins L; amd 216, Judy L
 
Enacts the "bail elimination act of 2018"; creates provisions for pretrial detention.
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A05033 Actions:

BILL NOA05033A
 
02/06/2017referred to codes
01/03/2018referred to codes
04/09/2018amend (t) and recommit to codes
04/09/2018print number 5033a
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A05033 Memo:

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.
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A05033 Text:



 
                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.
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