Relates to the issuance of securing orders and makes conforming changes related thereto; release under non-monetary conditions; electronic monitoring; requires a rehearing after five days in custody for certain principals.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10137A
TITLE OF BILL: An act to amend the criminal procedure law, in
relation to the issuance of securing orders and in relation to making
New York's antiquated cash bail system has been fixed in law without
major amendment for nearly fifty years. This legislation would move our
state toward a more intelligent, individualized system of pre-trial
release, monitoring and, when necessary, detention. The bill is designed
to end the current, reflexive overreliance on monetary bail, which each
year results in the unnecessary and expensive pre-trial jailing of thou-
sands of persons simply because they cannot afford a modest sum as
SUMMARY OF PROVISIONS:
The bill would, in most instances, eliminate the option for a court to
impose a monetary bail requirement at arraignment or thereafter when a
defendant is charged with a traffic infraction, violation, misdemeanor
or non-violent felony. Rather than rely almost exclusively on money
bail, courts would be required to consider, in ascending order, release
on recognizance (except in certain higher level felony cases), release
on non-monetary conditions, monitoring by a pretrial services agency,
travel restrictions, and electronic location monitoring. The court would
be required to select the least restrictive alternative and conditions
that would reasonably assure the defendant's appearance in court when
The bill would retain a class of charges for which the court would be
required to select the least restrictive alternative and conditions
designed to assure court attendance, but for which a monetary bail
option would be retained. This would include a misdemeanor sex offenses
defined in Article 130 of the Penal Law and a felony set forth in
section § 70.02 of the Penal Law (other than burglary in the second
degree (PL § 140.25, subd.2), robbery in the second degree (PL § 160.10,
subd. 1) and falsely reporting an incident in the second degree (PL §
240.55)). Monetary bail would also be authorized, along with a remand
without bail (as available under current law, see CPL § 530.20 (2)),
when the charge is a felony sex offense, a felony terrorism crime
defined in PL § 490.10, § 490.15, § 490.30, § 490.35, § 490.37, §
490.40, § 490.45, § 490,47, § 490.50 or § 490.55, a class A felony, a
felony offense of witness tampering, a felony involving an intent to
cause serious physical injury or death and causing such result, or a
charge which makes the person eligible for sentencing as a persistent
violent felony offender.
Current law sets forth nine potential methods by which monetary bail may
be authorized. A judge setting bail may select one, two or more such
options. CPL § 520.10 (2). (Those most commonly ordered are cash and an
alternative commercial bond.) The bill provides that when monetary bail
is set, the judge shall select three or more such options, one of which
should be a partially secured or unsecured bond.
The issue for consideration by the court, as under current law, would be
risk of flight. The court would impose the "least restrictive" alterna-
tive and conditions that would reasonably assure the defendant's return
to court for further proceedings.
Certain statutory factors in current law that are not clearly relevant
to risk of flight (and are subject to discriminatory application) would
be removed (e.g., character, habits, reputation). Non-monetary condi-
tions imposed by the court would be "reasonable" and, as noted, designed
to assure the principal's return to court. The court would explain on
the record or in writing the reasons for the pre-trial alternative
chosen and the conditions imposed.
When bail or remand was not ordered with respect to an individual
charge, and a request is made for nominal bail to be set on the charge,
the court would set nominal bail if it determined that the request was
The state Office of Court Administration would be required to certify
one or more pretrial services agencies in each county in the state. In
most jurisdictions, this would include the county probation department.
Counties could contract with private, non-profit organizations to
provide such services, and could contract among themselves for shared
The court could order electronic location monitoring of the following
defendants, as an additional monitoring method, when "no other realistic
conditions (would) suffice to reasonably assure the defendant's return
to court": (a) charged with a felony, or a misdemeanor crime of domestic
violence, or a misdemeanor sex offense, or a misdemeanor and was
convicted of a violent felony offense within the past five years, or
charged with an offense and is alleged to have intimidated a victim or
witness; or (b) persistently willfully failed to appear in court as
A court would have to issue certain findings before determining that
monitoring by a pretrial services agency and electronic location moni-
toring would be the least restrictive alternative necessary to assure a
return to court. Electronic location monitoring would be limited to 60
days, with renewal possible after notice and an opportunity to be heard.
The defendant would be considered to be in custody for purposes of CPL
§§ 170.70 and 180.80 of the Criminal Procedure Law.
No profit making entity could provide electronic location monitoring
services or be a pretrial services agency.
No risk assessment instrument would be required or recognized for use in
the criminal courts. Any such instrument would have to be empirically
validated and regularly revalidated. The underlying studies and data
used in the validation process would have to be publicly accessible. The
defendant would be able to obtain a copy of any completed instrument
used with the defendant. The public would be able to obtain copies of
any such forms regularly used in the county (along with related informa-
tion, such as instructions).
The law would specifically state that no such instrument may be discri-
minatory or result in disparities based on age, race, creed, color,
national origin, sexual orientation, gender identity or expression,
military status, sex, marital status, disability, or any other constitu-
tionally protected class.
If a pre-trial defendant is held in custody, a rehearing within five
business days would be scheduled by the court, followed by additional
hearings if the defendant remaineds detained. At rehearings, the prose-
cution would have to demonstrate by clear and convincing evidence that
the detained defendant poses a significant risk of intentional flight to
avoid prosecution and no lesser restriction would reasonably assure the
defendant's return to court. Expedited disclosure ("discovery") would be
required, subject to a protective order. The bill would also amend CPL §
240.44 to provide that, with respect to certain witnesses, discovery
provided in advance of pretrial hearings would be provided before a
witness testifies rather than at the conclusion of direct examination,
subject again to a protective order.
The bill would also amend CPL § 510.10 concerning bench warrants. After
a failure to appear in court (except when the person is charged with a
new crime while at liberty), absent proof that the failure to appear was
willful, the court (or county pretrial agency) would give forty-eight
hours' notice, to afford the person an opportunity to voluntarily
appear. The court or pretrial agency would be authorized to provide
notice of court appearances by text, email, telephone or mail.
Certain post-arraignment events would render even persons charged with
lower-level offenses eligible for a monetary bail order and thus
pretrial detention. These include a persistent willful failure to appear
in court; violation of an order of protection (see PL § 215.51 (b), (c),
(d)); charged with a registrable sex offense and alleged to have commit-
ted another registrable sex offense; alleged to have intimidated a
witness or victim, in violation of PL § 215.15, § 215.16 or § 215.17,
while at liberty; or charged with a felony, and alleged to have commit-
ted a felony while at liberty.
Every year, thousands of New Yorkers are incarcerated awaiting trial
simply because they cannot afford to pay bail, a situation that is
unfair to families and the less-financially secure among us. The over-
whelming majority of persons issued a summons or placed under arrest
return to court when required for all further proceedings. Poor and
working class New Yorkers are nonetheless incarcerated by the thousands
for days, weeks, months -- sometimes years -- before trial, or until a
plea agreement is reached, often ultimately involving no more than a
sentence of "time served."
People who are subject to pre-trial detention experience difficulties
and, often, life-altering changes in employment, education, relation-
ships, child rearing and custody, housing, and immigration status. Addi-
tionally, many studies show no correlation between being able to afford
bail and returning to court and/ or re-offending.
This bill would directly impact the widespread overreliance on cash bail
in New York. It re-emphasizes the requirement that every person unable
to afford counsel be represented at arraignment. It establishes a
presumption of release, on recognizance in most cases or under non-mone-
tary conditions, with bail and commitment to the sheriff available in
limited, specified cases and circumstances. It provides that if a
defendant is not released on recognizance or under non-monetary condi-
tions at arraignment, an evidentiary hearing would be held within five
business days to determine whether there is clear and convincing proof
of a significant flight risk. Thereafter, if the defendant remained in
custody, defense counsel could trigger additional re-hearings for
consideration of release.
This legislation would provide clear guidance to the courts regarding
pre-trial recognizance decisions, while allowing judges to be responsive
to changes and new information that may arise during the pre-trial peri-
od. Most importantly, the bill would address an overreliance on finan-
cial resources that pervades our current system, and help reassure New
Yorkers that, in this state, justice is not for sale.
This is new legislation.
There are no required fiscal costs. Significant savings for local
governments and the state can be expected, through a reduction of unnec-
essary pre-trial detention and increased use of alternatives to incar-
Thirty days after it shall have become a law.