Bill Text: NY A02726 | 2019-2020 | General Assembly | Introduced
Bill Title: Enacts the "bail elimination act of 2019"; creates provisions for pretrial detention.
Spectrum: Partisan Bill (Democrat 23-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A02726 Detail]
Download: New_York-2019-A02726-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2726 2019-2020 Regular Sessions IN ASSEMBLY January 25, 2019 ___________ Introduced by M. of A. O'DONNELL, LUPARDO, JAFFEE, ORTIZ, D'URSO, RIVERA, BARRON, GOTTFRIED, DAVILA, DE LA ROSA, QUART, ARROYO, RICHARD- SON, HUNTER, WEPRIN, EPSTEIN -- Multi-Sponsored by -- M. of A. SIMON -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law and the judiciary law, in relation to enacting the "bail elimination act of 2019"; 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 2019". 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 19 whenever [his] the principal's attendance may be required and will at 20 all times render [himself] the principal amenable to the orders and 21 processes of the court. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02933-01-9A. 2726 2 1 3-a. "Release under non-monetary conditions." A court releases a prin- 2 cipal under non-monetary conditions when, having acquired control over a 3 person, it permits the person to be at liberty during the pendency of 4 the criminal action under conditions set by the court, which shall be 5 the least restrictive that will reasonably assure the principal's 6 appearance in court. Such conditions may include, among others, that the 7 principal shall be in contact with a pretrial services agency serving 8 principals in that county; that the principal shall abide by specified 9 restrictions on travel that are reasonably related to an actual risk of 10 intentional flight from the jurisdiction; that the principal shall 11 refrain from possessing a firearm, destructive device or other dangerous 12 weapon; that the person be placed in pretrial supervision with a 13 pretrial services agency serving principals in that county. 14 4. "Commit to the custody of the sheriff." A court commits a principal 15 to the custody of the sheriff when, having acquired control over his 16 person, it orders that he be confined in the custody of the sheriff 17 [during the pendency of the criminal action or proceeding involved] 18 pending the outcome of a hearing as to whether the individual shall be 19 ordered into pretrial detention as specified in article five hundred 20 forty-five of this title. 21 5. "Securing order" means an order of a court [committing a principal22to the custody of the sheriff, or fixing bail, or releasing him on his23own recognizance] that either releases a principal on personal recogni- 24 zance, or releases the principal under non-monetary conditions, all with 25 the direction that the principal return to court for future court 26 appearances and to be at all times amendable to the orders and processes 27 of the court. 28 6. ["Order of recognizance or bail" means a securing order releasing a29principal on his own recognizance or fixing bail] "Pretrial detention." 30 A court may commit a principal to pretrial detention if, after a hearing 31 and making such findings as specified in article five hundred forty-five 32 of this title, a judge so orders detention. 33 § 3. Subdivisions 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 34 of section 500.10 of the criminal procedure law are REPEALED, and subdi- 35 vision 20 is renumbered subdivision 7. 36 § 4. Section 510.10 of the criminal procedure law, as amended by chap- 37 ter 459 of the laws of 1984, is amended to read as follows: 38 § 510.10 Securing order; when required; alternatives available; stand- 39 ard to be applied. 40 1. When a principal, whose future court attendance at a criminal 41 action or proceeding is or may be required, initially comes under the 42 control of a court, such court [must] shall, by a securing order, 43 [either release him on his own recognizance, fix bail or commit him to44the custody of the sheriff] release the principal pending trial on the 45 principal's personal recognizance, unless the court finds on the record 46 that release on recognizance will not reasonably assure the individual's 47 court attendance. In such instances, the court will release the individ- 48 ual under non-monetary conditions, selecting the least restrictive 49 alternative that will reasonably assure the principal's court attend- 50 ance. The court will support its choice of alternative on the record. A 51 principal shall not be required to pay for any part of the cost of 52 release under non-monetary conditions. 53 2. Notwithstanding the provisions of subdivision one of this section, 54 in cases where the people move for pretrial detention the court may 55 commit the defendant to the custody of the sheriff or issue a securing 56 order in accordance with article five hundred forty-five of this title.A. 2726 3 1 3. When a securing order is revoked or otherwise terminated in the 2 course of an uncompleted action or proceeding but the principal's future 3 court attendance still is or may be required and [he] the principal is 4 still under the control of a court, a new securing order must be issued. 5 When the court revokes or otherwise terminates a [securing] any order 6 which committed the principal to the custody of the sheriff, the court 7 shall give written notification to the sheriff of such revocation or 8 termination of [the securing] such order. 9 § 5. Section 510.20 of the criminal procedure law is amended to read 10 as follows: 11 § 510.20 Application for [recognizance or bail; making and determi-12nation thereof in general] a change in securing order based 13 on a material change of circumstances. 14 1. Upon any occasion when a court [is required to issue] has issued a 15 securing order with respect to a principal, [or at any time when a prin-16cipal is confined in the custody of the sheriff as a result of a previ-17ously issued securing order, he] the principal or the people may make an 18 application for [recognizance or bail] a different securing order due to 19 a material change of circumstances. 20 2. Upon such application, the principal or the people must be 21 accorded an opportunity to be heard and to contend that [an order of22recognizance or bail] a different securing order must or should issue[,23that the court should release him on his own recognizance rather than24fix bail, and that if bail is fixed it should be in a suggested amount25and form] because, due to a material change in circumstances, the 26 current order is either too restrictive or not restrictive enough to 27 reasonably ensure a defendant's appearance in court. The court shall 28 select the least restrictive non-monetary condition or conditions that 29 will reasonably assure the principal's court attendance. 30 3. Where the people make an application for a different securing order 31 on the basis of a violation of an existing securing order, the court 32 shall consider the nature, willfulness, and seriousness of the violation 33 and shall select the least restrictive non-monetary condition or condi- 34 tions that will reasonably assure the principal's court attendance. 35 § 6. Section 510.30 of the criminal procedure law, subparagraph (v) of 36 paragraph (a) of subdivision 2 as amended by chapter 920 of the laws of 37 1982, subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered 38 by chapter 447 of the laws of 1977, subparagraph (vii) as added and 39 subparagraphs (viii) and (ix) of paragraph (a) of subdivision 2 as 40 renumbered by section 1 of part D of chapter 491 of the laws of 2012 and 41 subdivision 3 as added by chapter 788 of the laws of 1981, is amended to 42 read as follows: 43 § 510.30 Application for [recognizance or bail] securing order; rules of 44 law and criteria controlling determination. 45 [1. Determinations of applications for recognizance or bail are not in46all cases discretionary but are subject to rules, prescribed in article47five hundred thirty and other provisions of law relating to specific48kinds of criminal actions and proceedings, providing (a) that in some49circumstances such an application must as a matter of law be granted,50(b) that in others it must as a matter of law be denied and the princi-51pal committed to or retained in the custody of the sheriff, and (c) that52in others the granting or denial thereof is a matter of judicial53discretion.542. To the extent that the issuance of an order of recognizance or bail55and the terms thereof are matters of discretion rather than of law, anA. 2726 4 1application is determined on the basis of the following factors and2criteria:3(a)] With respect to any principal, the court must consider the kind 4 and degree of control or restriction that is necessary to secure his 5 court attendance when required. In determining that matter, the court 6 must, on the basis of available information, consider and take into 7 account: 8 [(i) The principal's character, reputation, habits and mental condi-9tion;10(ii) His employment and financial resources; and11(iii) His family ties and the length of his residence if any in the12community; and13(iv) His] 14 1. Information about the principal that is relevant to court appear- 15 ance, including, but not limited to, the principal's activities, history 16 and community ties; 17 2. If the principal is a defendant, the charges facing the principal; 18 3. The principal's criminal record if any; [and19(v) His] 4. The principal's record of previous adjudication as a juve- 20 nile delinquent, as retained pursuant to section 354.2 of the family 21 court act, or, of pending cases where fingerprints are retained pursuant 22 to section 306.1 of such act, or a youthful offender, if any; [and23(vi) His] 5. The principal's previous record if any in responding to 24 court appearances when required or with respect to intentional flight to 25 avoid criminal prosecution; [and26(vii)] 6. Where the principal is charged with a crime or crimes 27 against a member or members of the same family or household as that term 28 is defined in subdivision one of section 530.11 of this title, the 29 following factors: 30 [(A)] (i) any violation by the principal of an order of protection 31 issued by any court for the protection of a member or members of the 32 same family or household as that term is defined in subdivision one of 33 section 530.11 of this title, whether or not such order of protection is 34 currently in effect; and 35 [(B)] (ii) the principal's history of use or possession of a firearm; 36 [and37(viii)] 7. If [he] the principal is a defendant, the weight of the 38 evidence against [him] the principal in the pending criminal action and 39 any other factor indicating probability or improbability of conviction; 40 or, in the case of an application for [bail or recognizance] a securing 41 order pending appeal, the merit or lack of merit of the appeal; [and42(ix)] 8. If [he] the principal is a defendant, the sentence which may 43 be or has been imposed upon conviction[.44(b) Where the principal is a defendant-appellant in a pending appeal45from a judgment of conviction, the court must also consider the likeli-46hood of ultimate reversal of the judgment. A determination that the47appeal is palpably without merit alone justifies, but does not require,48a denial of the application, regardless of any determination made with49respect to the factors specified in paragraph (a).503. When bail or recognizance is ordered, the court shall inform the51principal, if he is a defendant charged with the commission of a felony,52that the release is conditional and that the court may revoke the order53of release and commit the principal to the custody of the sheriff in54accordance with the provisions of subdivision two of section 530.60 of55this chapter if he commits a subsequent felony while at liberty upon56such order.]; andA. 2726 5 1 9. If the principal is a defendant-appellant in a pending appeal from 2 a judgment of conviction, the court must also consider the likelihood of 3 ultimate reversal of the judgment. A determination that the appeal is 4 palpably without merit alone justifies, but does not require, a denial 5 of the application, regardless of any determination made with respect to 6 the factors specified in this paragraph. 7 § 7. Section 510.40 of the criminal procedure law is amended to read 8 as follows: 9 § 510.40 [Application for recognizance or bail; determination thereof,10form of securing order and execution thereof] Notification 11 to principal by court of conditions of release and penal- 12 ties for violations of release. 13 1. [An application for recognizance or bail must be determined by a14securing order which either:15(a) Grants the application and releases the principal on his own16recognizance; or17(b) Grants the application and fixes bail; or18(c) Denies the application and commits the principal to, or retains19him in, the custody of the sheriff.202.] Upon ordering that a principal be released on [his] the princi- 21 pal's own recognizance, or released under non-monetary conditions the 22 court must direct [him] the principal to appear in the criminal action 23 or proceeding involved whenever [his] the principal's attendance may be 24 required and to [render himself] be at all times amenable to the orders 25 and processes of the court. If the principal is a defendant, the court 26 shall also direct the defendant not to commit a crime while at liberty 27 upon the court's securing order. If such principal is in the custody of 28 the sheriff [or at liberty upon bail] at the time of the order, the 29 court must direct that [he] the principal be discharged from such custo- 30 dy [or, as the case may be, that his bail be exonerated]. 31 [3. Upon the issuance of an order fixing bail, and upon the posting32thereof, the court must examine the bail to determine whether it33complies with the order. If it does, the court must, in the absence of34some factor or circumstance which in law requires or authorizes disap-35proval thereof, approve the bail and must issue a certificate of36release, authorizing the principal to be at liberty, and, if he is in37the custody of the sheriff at the time, directing the sheriff to38discharge him therefrom. If the bail fixed is not posted, or is not39approved after being posted, the court must order that the principal be40committed to the custody of the sheriff.] 41 2. If the principal is released under non-monetary conditions, the 42 court shall, in the document authorizing the principal's release, notify 43 the principal of: 44 (a) any of the conditions under which the principal is subject, in 45 addition to the directions in subdivision one of this section, in a 46 manner sufficiently clear and specific to serve as a guide for the prin- 47 cipal's conduct; and 48 (b) the consequences for violation of those conditions, which could 49 include revoking of the securing order, setting of a more restrictive 50 securing order, or, after the hearing as specified in article five 51 hundred forty-five of this title, pretrial detention. 52 3. The court shall notify all principals released under non-monetary 53 conditions and on recognizance of all court appearances in advance by 54 text message, telephone call, electronic mail, or first class mail. 55 § 8. The criminal procedure law is amended by adding two new sections 56 510.43 and 510.45 to read as follows:A. 2726 6 1 § 510.43 Court appearance reminders. 2 The court shall notify all principals released on recognizance or 3 under non-monetary conditions of all court appearances by text message, 4 telephone call, electronic mail, or first class mail. The court may 5 partner with the certified pretrial services agency or agencies in that 6 county to provide such notifications. 7 § 510.45 Pretrial service agencies. 8 The office of court administration shall certify a pretrial services 9 agency or agencies in each county to monitor principals released under 10 conditions of non-monetary release. Such agency or agencies shall be a 11 public entity under the supervision and control of a county or munici- 12 pality or a non-profit entity under contract to the county or munici- 13 pality. A county shall be authorized to enter in to a contract with 14 another county or municipality in the state to monitor principals 15 released under conditions of non-monetary release in its county but 16 shall not contract with any private entity for such purposes. Any crite- 17 ria, instrument, or tool used to determine a principal's eligibility for 18 non-monetary conditions or to determine the condition or conditions to 19 be monitored by a pretrial services agency shall be made available to 20 any person upon written or oral request. 21 § 9. Section 510.50 of the criminal procedure law is amended to read 22 as follows: 23 § 510.50 Enforcement of securing order. 24 When the attendance of a principal confined in the custody of the 25 sheriff or pursuant to a pretrial detention order is required at the 26 criminal action or proceeding at a particular time and place, the court 27 may compel such attendance by directing the sheriff to produce him or 28 her at such time and place. If the principal is at liberty on [his] the 29 principal's own recognizance [or on bail, his] or non-monetary condi- 30 tions the principal's attendance may be achieved or compelled by various 31 methods, including notification and the issuance of a bench warrant, 32 prescribed by law in provisions governing such matters with respect to 33 the particular kind of action or proceeding involved. Prior to issuing a 34 bench warrant, the court must provide the principal forty-eight hours 35 advance notice that he or she is required to appear in court in order to 36 give the principal the opportunity to appear voluntarily. 37 § 10. Article 520 of the criminal procedure law is REPEALED. 38 § 11. The article heading of article 530 of the criminal procedure law 39 is amended to read as follows: 40 SECURING ORDERS [OF RECOGNIZANCE41OR BAIL] WITH RESPECT TO DEFENDANTS IN CRIMINAL 42 ACTIONS AND PROCEEDINGS--WHEN AND BY WHAT COURTS 43 AUTHORIZED 44 § 12. Section 530.10 of the criminal procedure law is amended to read 45 as follows: 46 § 530.10 [Order of recognizance or bail] Securing order; in general. 47 Under circumstances prescribed in this article, a court, upon applica- 48 tion of a defendant charged with or convicted of an offense, is required 49 [or authorized to order bail or recognizance] to issue a securing order 50 for the release or prospective release of such defendant during the 51 pendency of either: 52 1. A criminal action based upon such charge; or 53 2. An appeal taken by the defendant from a judgment of conviction or a 54 sentence or from an order of an intermediate appellate court affirming 55 or modifying a judgment of conviction or a sentence.A. 2726 7 1 § 13. Subdivision 4 of section 530.11 of the criminal procedure law, 2 as added by chapter 186 of the laws of 1997, is amended to read as 3 follows: 4 4. When a person is arrested for an alleged family offense or an 5 alleged violation of an order of protection or temporary order of 6 protection or arrested pursuant to a warrant issued by the supreme or 7 family court, and the supreme or family court, as applicable, is not in 8 session, such person shall be brought before a local criminal court in 9 the county of arrest or in the county in which such warrant is return- 10 able pursuant to article one hundred twenty of this chapter. Such local 11 criminal court may issue any order authorized under subdivision eleven 12 of section 530.12 of this article, section one hundred fifty-four-d or 13 one hundred fifty-five of the family court act or subdivision three-b of 14 section two hundred forty or subdivision two-a of section two hundred 15 fifty-two of the domestic relations law, in addition to discharging 16 other arraignment responsibilities as set forth in this chapter. In 17 making such order, the local criminal court shall consider the [bail18recommendation] securing order, if any, made by the supreme or family 19 court as indicated on the warrant or certificate of warrant. Unless the 20 petitioner or complainant requests otherwise, the court, in addition to 21 scheduling further criminal proceedings, if any, regarding such alleged 22 family offense or violation allegation, shall make such matter return- 23 able in the supreme or family court, as applicable, on the next day such 24 court is in session. 25 § 14. Paragraph (a) of subdivision 8 of section 530.13 of the criminal 26 procedure law, as added by chapter 388 of the laws of 1984, is amended 27 to read as follows: 28 (a) revoke [an order of recognizance or bail] a securing order and 29 commit the defendant to custody; or 30 § 15. The opening paragraph of subdivision 1 of section 530.13 of the 31 criminal procedure law, as amended by chapter 137 of the laws of 2007, 32 is amended to read as follows: 33 When any criminal action is pending, and the court has not issued a 34 temporary order of protection pursuant to section 530.12 of this arti- 35 cle, the court, in addition to the other powers conferred upon it by 36 this chapter, may for good cause shown issue a temporary order of 37 protection in conjunction with any securing order [committing the38defendant to the custody of the sheriff or as a condition of a pre-trial39release, or as a condition of release on bail or an adjournment in40contemplation of dismissal]. In addition to any other conditions, such 41 an order may require that the defendant: 42 § 16. Subdivisions 9 and 11 of section 530.12 of the criminal proce- 43 dure law, subdivision 9 as amended by section 81 of subpart B of part C 44 of chapter 62 of the laws of 2011, subdivision 11 as amended by chapter 45 498 of the laws of 1993, the opening paragraph of subdivision 11 as 46 amended by chapter 597 of the laws of 1998, paragraph (a) of subdivision 47 11 as amended by chapter 222 of the laws of 1994 and paragraph (d) of 48 subdivision 11 as amended by chapter 644 of the laws of 1996, are 49 amended to read as follows: 50 9. If no warrant, order or temporary order of protection has been 51 issued by the court, and an act alleged to be a family offense as 52 defined in section 530.11 of this [chapter] article is the basis of the 53 arrest, the magistrate shall permit the complainant to file a petition, 54 information or accusatory instrument and for reasonable cause shown, 55 shall thereupon hold such respondent or defendant, [admit to, fix or56accept bail,] establish a securing order or parole him or her for hear-A. 2726 8 1 ing before the family court or appropriate criminal court as the 2 complainant shall choose in accordance with the provisions of section 3 530.11 of this [chapter] article. 4 11. If a defendant is brought before the court for failure to obey any 5 lawful order issued under this section, or an order of protection issued 6 by a court of competent jurisdiction in another state, territorial or 7 tribal jurisdiction, and if, after hearing, the court is satisfied by 8 competent proof that the defendant has willfully failed to obey any such 9 order, the court may: 10 (a) revoke [an order of recognizance or revoke an order of bail or11order forfeiture of such bail] a securing order and commit the defendant 12 to custody; or 13 (b) restore the case to the calendar when there has been an adjourn- 14 ment in contemplation of dismissal and commit the defendant to custody; 15 or 16 (c) revoke a conditional discharge in accordance with section 410.70 17 of this chapter and impose probation supervision or impose a sentence of 18 imprisonment in accordance with the penal law based on the original 19 conviction; or 20 (d) revoke probation in accordance with section 410.70 of this chapter 21 and impose a sentence of imprisonment in accordance with the penal law 22 based on the original conviction. In addition, if the act which consti- 23 tutes the violation of the order of protection or temporary order of 24 protection is a crime or a violation the defendant may be charged with 25 and tried for that crime or violation. 26 § 17. Section 530.20 of the criminal procedure law, as amended by 27 chapter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of 28 subdivision 2 as amended by chapter 218 of the laws of 1979, is amended 29 to read as follows: 30 § 530.20 [Order of recognizance or bail;] Securing order by local crimi- 31 nal court when action is pending therein. 32 1. When a criminal action is pending in a local criminal court, such 33 court, upon application of a defendant, [must or may order recognizance34or bail as follows:351. When the defendant is charged, by information, simplified informa-36tion, prosecutor's information or misdemeanor complaint, with an offense37or offenses of less than felony grade only, the court must order recog-38nizance or bail.392. When the defendant is charged, by felony complaint, with a felony,40the court may, in its discretion, order recognizance or bail except as41otherwise provided in this subdivision:42(a) A city court, a town court or a village court may not order recog-43nizance or bail when (i) the defendant is charged with a class A felony,44or (ii) it appears that the defendant has two previous felony45convictions;46(b)] shall, by a securing order, release the defendant pending trial 47 on the defendant's personal recognizance, unless the court finds on the 48 record that release on recognizance will not reasonably assure the 49 defendant's court attendance. In such instances, the court will release 50 the defendant under non-monetary conditions, selecting the least 51 restrictive alternative that will reasonably assure the defendant's 52 court attendance. The court will support its choice of alternative on 53 the record. The defendant shall not be required to pay for any part of 54 the cost of release under non-monetary conditions. 55 2. Notwithstanding the provisions of subdivision one of this section, 56 in cases where the people move for pretrial detention, the court mayA. 2726 9 1 commit the defendant to the custody of the sheriff or issue a securing 2 order in accordance with article five hundred forty-five of this title. 3 3. Notwithstanding the provisions of subdivision one or two of this 4 section, in cases where the defendant is charged by felony complaint 5 with a felony and either is charged with a class A felony, or it appears 6 that the defendant has two previous felony convictions within the mean- 7 ing of subdivision one of section 70.08 or 70.10 of the penal law; the 8 court, a city court, town court or a village court shall commit the 9 defendant to the custody of the sheriff for the county or superior court 10 to make a determination about a securing order within three days. 11 4. No local criminal court may order [recognizance or bail] a securing 12 order with respect to a defendant charged with a felony unless and 13 until[:14(i) The district attorney has been heard in the matter or, after know-15ledge or notice of the application and reasonable opportunity to be16heard, has failed to appear at the proceeding or has otherwise waived17his right to do so; and18(ii) The] the court [has], and counsel for the defense, have been 19 furnished with a report of the division of criminal justice services 20 concerning the defendant's criminal record if any or with a police 21 department report with respect to the defendant's prior arrest and 22 conviction record, if any. If neither report is available, the court, 23 with the consent of the district attorney, may dispense with this 24 requirement; provided, however, that in an emergency, including but not 25 limited to a substantial impairment in the ability of such division or 26 police department to timely furnish such report, such consent shall not 27 be required if, for reasons stated on the record, the court deems it 28 unnecessary. [When the court has been furnished with any such report or29record, it shall furnish a copy thereof to counsel for the defendant or,30if the defendant is not represented by counsel, to the defendant.] 31 § 18. The section heading and subdivisions 1 and 2 of section 530.30 32 of the criminal procedure law, subdivision 2 as amended by chapter 762 33 of the laws of 1971, are amended to read as follows: 34 [Order of recognizance or bail;] Securing order by superior court 35 judge when action is pending in local criminal court. 36 1. When a criminal action is pending in a local criminal court, 37 [other than one consisting of a superior court judge sitting as such,] a 38 judge of a superior court holding a term thereof in the county, upon 39 application of a defendant, and within one working day, may order 40 [recognizance or bail] a securing order when such local criminal court: 41 (a) Lacks authority to issue such an order, pursuant to [paragraph42(a) of] subdivision [two] four of section 530.20 of this article; or 43 (b) Has denied an application for recognizance [or bail]; or 44 (c) Has [fixed bail which is excessive] improperly granted a request 45 for a pretrial detention hearing; or 46 (d) Has set a securing order of release under non-monetary conditions 47 which are more restrictive than necessary to reasonably ensure court 48 attendance. In such case, such superior court judge may vacate the order 49 of such local criminal court and release the defendant on [his own] 50 recognizance [or fix bail in a lesser amount or in a less burdensome51form] or under release with conditions, whichever is the least restric- 52 tive alternative that will reasonably assure defendant's appearance in 53 court. The court will support its choice of alternative on the record. 54 2. Notwithstanding the provisions of subdivision one of this section, 55 when the defendant is charged with a felony in a local criminal court, a 56 superior court judge may not [order recognizance or bail] issue a secur-A. 2726 10 1 ing order unless and until the district attorney has had an opportunity 2 to be heard in the matter and such judge has been furnished with a 3 report as described in [subparagraph (ii) of paragraph (b) of] subdivi- 4 sion [two] four of section 530.20 of this article. 5 § 19. Section 530.40 of the criminal procedure law, subdivision 3 as 6 amended by chapter 264 of the laws of 2003 and subdivision 4 as amended 7 by chapter 762 of the laws of 1971, is amended to read as follows: 8 § 530.40 [Order of recognizance or bail;] Securing order by superior 9 court when action is pending therein. 10 When a criminal action is pending in a superior court, such court, 11 upon application of a defendant, [must or may order recognizance or12bail] shall issue a securing order as follows: 13 1. [When the defendant is charged with an offense or offenses of less14than felony grade only, the court must order recognizance or bail.152. When the defendant is charged with a felony, the court may, in its16discretion, order recognizance or bail. In any such case in which an17indictment (a) has resulted from an order of a local criminal court18holding the defendant for the action of the grand jury, or (b) was filed19at a time when a felony complaint charging the same conduct was pending20in a local criminal court, and in which such local criminal court or a21superior court judge has issued an order of recognizance or bail which22is still effective, the superior court's order may be in the form of a23direction continuing the effectiveness of the previous order.] Release 24 the defendant pending trail on the defendant's personal recognizance, 25 unless the court finds on the record that release on recognizance will 26 not reasonably assure the defendant's court attendance. In such 27 instances, the court will release the defendant under non-monetary 28 conditions, selecting the least restrictive alternative that will 29 reasonably assure the defendant's court attendance. The court will 30 support its choice of alternative on the record. The defendant shall not 31 be required to pay for any part of the cost of release under non-mone- 32 tary conditions. 33 2. Notwithstanding the provisions of subdivision one of this section, 34 in cases where the people move for pretrial detention, the court may 35 commit the defendant to the custody of the sheriff or issue a securing 36 order in accordance with article five hundred forty-five of this title. 37 3. Notwithstanding the provisions of subdivision [two] one of this 38 section, a superior court may not [order recognizance or bail] issue a 39 securing order, or permit a defendant to remain at liberty pursuant to 40 an existing order, after [he] the defendant has been convicted of 41 either: (a) a class A felony or (b) any class B or class C felony 42 defined in article one hundred thirty of the penal law committed or 43 attempted to be committed by a person eighteen years of age or older 44 against a person less than eighteen years of age. In either case the 45 court must commit or remand the defendant to the custody of the sheriff. 46 4. Notwithstanding the provisions of subdivision [two] one of this 47 section, a superior court may not [order recognizance or bail] issue a 48 securing order when the defendant is charged with a felony unless and 49 until the district attorney has had an opportunity to be heard in the 50 matter and such court [has] and counsel for the defense have been 51 furnished with a report as described in [subparagraph (ii) of paragraph52(b) of] subdivision [two] four of section 530.20 of this article. 53 § 20. Subdivision 1 of section 530.45 of the criminal procedure law, 54 as amended by chapter 264 of the laws of 2003, is amended to read as 55 follows:A. 2726 11 1 1. When the defendant is at liberty in the course of a criminal action 2 as a result of a prior [order of recognizance or bail] securing order 3 and the court revokes such order [and then either fixes no bail or fixes4bail in a greater amount or in a more burdensome form than was previous-5ly fixed and remands or commits defendant to the custody of the sheriff,6a judge designated in subdivision two, upon application of the defendant7following conviction of an offense other than a class A felony or a8class B or class C felony offense defined in article one hundred thirty9of the penal law committed or attempted to be committed by a person10eighteen years of age or older against a person less than eighteen years11of age, and before sentencing, may issue a securing order and either12release defendant on his own recognizance, or fix bail, or fix bail in a13lesser amount or], such court may issue a more restrictive securing 14 order in a less [burdensome] restrictive form than fixed by the court in 15 which the conviction was entered. 16 § 21. Section 530.60 of the criminal procedure law is REPEALED. 17 § 22. Title P of the criminal procedure law is amended by adding a new 18 article 545 to read as follows: 19 ARTICLE 545--PRETRIAL DETENTION 20 Section 545.10 Pretrial detention; when ordered. 21 545.20 Eligibility for a pretrial detention hearing. 22 545.30 Pretrial detention hearing. 23 545.40 Order for pretrial detention. 24 545.50 Reopening of pretrial hearing. 25 545.60 Length of detention for defendant held under a pretrial 26 detention order. 27 § 545.10 Pretrial detention; when ordered. 28 A county or superior court may order, before trial, the detention of a 29 defendant if the people seek detention of the defendant under section 30 545.20 of this article, and, after a hearing pursuant to section 545.30 31 of this article, the court finds clear and convincing evidence that the 32 defendant poses a high risk of intentional flight for the purpose of 33 evading criminal prosecution and that no conditions or combination of 34 conditions in the community will reasonably assure the defendant's 35 return to court. 36 § 545.20 Eligibility for a pretrial detention hearing. 37 1. The people may make a motion seeking pretrial detention of a 38 defendant at any time, except that where the people did not so move when 39 the defendant initially came under control of the court, the people must 40 show a change of circumstances or that information exists that was not 41 known to the people when the defendant initially came under control of 42 the court. The people may seek the pretrial detention of a defendant: 43 (a) charged with a felony where there is an allegation that the 44 defendant, with intent to cause serious physical injury to another 45 person, caused such injury to such person or to a third person, or 46 attempted to cause such injury to such person or to a third person; 47 (b) charged with an offense where, if convicted, the defendant would 48 be subject to a sentence under section 70.08 of the penal law; 49 (c) charged with offenses involving witness intimidation under section 50 215.15, 215.16, or 215.17 of the penal law; or 51 (d) who has willfully and persistently failed to appear in court in 52 the instant case. 53 2. If, upon such motion by the people, the court finds that the people 54 have shown a likelihood of success on their motion for pretrial 55 detention, the court may order a hearing pursuant to section 545.30 of 56 this article. Upon ordering a hearing pursuant to section 545.30 of thisA. 2726 12 1 article, the court shall either commit the defendant to the custody of 2 the sheriff or issue a securing order. The court will support its 3 choice of alternative on the record. If the defendant is at liberty, the 4 court may issue a warrant and have the defendant brought into custody of 5 the sheriff, except that, before a bench warrant may be issued, the 6 court must provide the defendant forty-eight hours advanced notice that 7 he or she is required to appear in court in order to give them the 8 opportunity to appear voluntarily. 9 § 545.30 Pretrial detention hearing. 10 1. A hearing shall be held within two working days of the court order- 11 ing a pretrial detention hearing. At the hearing, the defendant shall 12 have the right to be represented by counsel, and, if financially unable 13 to obtain counsel, to have counsel assigned. The defendant shall be 14 afforded an opportunity to testify, to present witnesses, to cross-exa- 15 mine witnesses who appear at the hearing, and to present information by 16 proffer or otherwise. The rules concerning the admissibility of 17 evidence in criminal trials do not apply to the presentation and consid- 18 eration of information during the hearing. 19 2. Prior to the hearing, the prosecution shall disclose to the defend- 20 ant, and permit the defendant to discover, inspect, copy or photograph 21 all statements or reports that relate to the prosecution's pretrial 22 detention motion that are in the possession, custody or control of the 23 prosecution, or persons under the prosecution's direction and control, 24 including: 25 (a) The complaint and supporting documents; 26 (b) Police reports; 27 (c) All statements, written or recorded or summarized in any writing 28 or recording, and the substance of all oral statements, made by the 29 defendant or a co-defendant; 30 (d) All statements, written or recorded or summarized in any writing 31 or recording, made by persons whom the prosecutor knows to have evidence 32 or information that relate to the subject matter of the case; 33 (e) All statements or reports upon which the prosecution relies in the 34 hearing; and 35 (f) All facts, evidence, and information favorable to the defendant, 36 including but not limited to information that tends to negate the 37 defendant's guilt or that tends to mitigate the defendant's culpability 38 as to a charged offense, or that tends to support a potential defense 39 thereto, or that tends to support a motion to suppress evidence on 40 constitutional or statutory grounds, or that would tend to reduce the 41 punishment of the defendant, or that is relevant to a witness's credi- 42 bility, without regard to the materiality of the information. 43 3. In hearings in cases for which there is no indictment, the people 44 shall establish probable cause that the eligible defendant committed the 45 charged offense. The people must establish by clear and convincing 46 evidence that the defendant poses a high risk of intentional flight for 47 the purpose of evading criminal prosecution and that no condition or 48 combination of conditions in the community will reasonably assure the 49 defendant's return to court. 50 4. In determining whether the defendant presents a high risk of inten- 51 tional flight for the purpose of evading criminal prosecution and wheth- 52 er no condition or combination of conditions in the community will 53 reasonably assure the defendant's return to court, the court may take 54 into account the following information: 55 (a) The nature and circumstances of the charged offense;A. 2726 13 1 (b) The weight of the evidence against the defendant, except that the 2 court may consider the admissibility of any evidence sought to be 3 excluded; 4 (c) The defendant's current and prior history of failure to appear in 5 court whether such failures to appear were willful; and 6 (d) Whether, at the time of the current offense or arrest, the defend- 7 ant was on probation, parole, or on release pending trial, sentencing or 8 completion of a sentence in this state or other jurisdictions. 9 5. Nothing in this section shall infringe upon the defendant's right 10 to release pursuant to sections 170.70 and 180.80 of this chapter. 11 § 545.40 Order for pretrial detention. 12 In a pretrial detention order issued pursuant to section 545.10 of 13 this article, the court shall: 14 1. Include written findings of fact and a written statement of the 15 reasons for the detention; and 16 2. Direct that the eligible defendant be afforded reasonable opportu- 17 nity for private consultation with counsel. 18 § 545.50 Reopening of pretrial hearing. 19 A pretrial detention hearing may be re-opened, regardless of whether a 20 pretrial detention order has been previously issued, upon a motion by 21 the people or by the defendant, at any time before final disposition, if 22 the court finds either a change of circumstances or that information 23 exists that was not known to the people or to the defendant at the time 24 of the hearing, that has a material bearing on the issue of whether 25 defendant presents a high risk of intentional flight for the purpose of 26 evading criminal prosecution, and whether no condition or combination of 27 conditions in the community will reasonably assure the defendant's 28 return to court. 29 § 545.60 Length of detention for defendant held under a pretrial 30 detention order. 31 1. Where a defendant has been committed to the custody of the sheriff 32 in a criminal action, the defendant must be released on his or her own 33 recognizance or on non-monetary conditions of release if the defendant 34 has not been brought to trial within: 35 (a) one hundred twenty days from the defendant's arraignment on an 36 indictment or superior court information, or from the defendant's 37 commitment to the custody of the sheriff, whichever is later, in a crim- 38 inal action wherein the defendant is accused of one or more offenses, at 39 least one of which is a felony; 40 (b) thirty days from the defendant's commitment to the custody of the 41 sheriff in a criminal action wherein the defendant is accused of one or 42 more offenses, at least one of which is a misdemeanor punishable by a 43 sentence of imprisonment of more than three months and none of which is 44 a felony; 45 (c) fifteen days from the defendant's commitment to the custody of the 46 sheriff in a criminal action wherein the defendant is accused of one or 47 more offenses, at least one of which is a misdemeanor punishable by a 48 sentence of imprisonment of not more than three months and none of which 49 is a crime punishable by a sentence of imprisonment of more than three 50 months; or 51 (d) five 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 violation or vehicle and traf- 54 fic law infraction and none of which is a crime. 55 2. The time within which a defendant must be brought to trial for the 56 purposes of paragraphs (a) and (b) of subdivision one of this sectionA. 2726 14 1 may be extended upon a showing of exceptional circumstances, but by no 2 more than two periods of up to twenty days each in a criminal action 3 wherein the defendant is accused of one or more offenses, at least one 4 of which is a felony, or one period of up to ten days in a criminal 5 action wherein the defendant is accused of one or more offenses, at 6 least one of which is a misdemeanor punishable by a sentence of impri- 7 sonment of more than three months and none of which is a felony. In 8 computing the time within which a defendant must be brought to trial for 9 the purposes of this subdivision, the following periods shall be 10 excluded: 11 (a) any period from the filing of the notice of appeal to the issuance 12 of the mandate in an interlocutory appeal; 13 (b) any period attributable to any examination to determine the 14 defendant's sanity or lack thereof or his or her mental or physical 15 competency to stand trial; 16 (c) any period attributable to the inability of the defendant to 17 participate in the defendant's defense because of mental incompetency or 18 physical incapacity; and 19 (d) any period in which the defendant is otherwise unavailable for 20 trial. 21 3. If the defendant has not been brought to trial within the applica- 22 ble time period established by this subdivision, the defendant shall be 23 released of his or her own recognizance or under non-monetary conditions 24 of release pending trial, unless: 25 (a) the trial is in progress; 26 (b) the trial has been delayed by the timely filing of motions, 27 excluding motions for continuances; or 28 (c) the trial has been delayed at the request of the defendant. 29 § 23. Article 68 of the insurance law is REPEALED. 30 § 24. Paragraph (a) of subdivision 9 of section 216.05 of the criminal 31 procedure law, as amended by chapter 258 of the laws of 2015, is amended 32 to read as follows: 33 (a) If at any time during the defendant's participation in the judi- 34 cial diversion program, the court has reasonable grounds to believe that 35 the defendant has violated a release condition or has failed to appear 36 before the court as requested, the court shall direct the defendant to 37 appear or issue a bench warrant to a police officer or an appropriate 38 peace officer directing him or her to take the defendant into custody 39 and bring the defendant before the court without unnecessary delay; 40 provided, however, that under no circumstances shall a defendant who 41 requires treatment for opioid abuse or dependence be deemed to have 42 violated a release condition on the basis of his or her participation in 43 medically prescribed drug treatments under the care of a health care 44 professional licensed or certified under title eight of the education 45 law, acting within his or her lawful scope of practice. The provisions 46 of [subdivision one of] section [530.60] 545.50 of this chapter relating 47 to [revocation of recognizance or bail] issuance of securing orders 48 shall apply to such proceedings under this subdivision. 49 § 25. Subdivision 2 of section 620.40 of the criminal procedure law is 50 amended to read as follows: 51 2. If the proceeding is adjourned at the prospective witness' 52 instance, for the purpose of obtaining counsel or otherwise, the court 53 must order him to appear upon the adjourned date. The court may further 54 [fix bail] impose non-monetary conditions to secure his appearance upon 55 such date or until the proceeding is completed [and, upon default there-56of, may commit him to the custody of the sheriff for such period].A. 2726 15 1 § 26. Subdivisions 2 and 3 of section 620.50 of the criminal procedure 2 law are amended to read as follows: 3 2. If the court is satisfied after such hearing that there is reason- 4 able cause to believe that the prospective witness (a) possesses infor- 5 mation material to the pending action or proceeding, and (b) will not be 6 amenable or respond to a subpoena at a time when his attendance will be 7 sought, it may issue a material witness order, adjudging [him] the indi- 8 vidual a material witness and [fixing bail to secure his] releasing the 9 individual on the individual's own recognizance unless the court finds 10 on the record that release on recognizance will not reasonably assure 11 the individual's court attendance. In such instances the court will 12 release the individual under non-monetary conditions, selecting the 13 least restrictive alternative that will reasonably ensure the individ- 14 ual's future attendance. 15 3. [A] When a material witness order [must be] is executed [as16follows:17(a) If the bail is posted and approved], if non-monetary conditions 18 are imposed by the court, the witness must[, as provided in subdivision19three of section 510.40,] be released and be permitted to remain at 20 liberty[; provided that, where the bail is posted by a person other than21the witness himself, he may not be so released except upon his signed22written consent thereto;23(b) If the bail is not posted, or if though posted it is not approved24by the court, the witness must, as provided in subdivision three of25section 510.40, be committed to the custody of the sheriff]. 26 § 27. Section 216 of the judiciary law is amended by adding a new 27 subdivision 5 to read as follows: 28 5. The chief administrator of the courts shall collect data and report 29 annually regarding pretrial release and detention. Such data and report 30 shall contain information categorized by gender, racial and ethnic back- 31 ground, regarding the nature of the criminal offenses, the number of 32 individuals released on recognizance, the number of individuals released 33 on non-monetary conditions, including the conditions imposed, the number 34 of individuals committed to the custody of a sheriff prior to trial, the 35 rates of failure to appear and rearrest and any other such information 36 as the chief administrator may find necessary and appropriate. 37 § 28. This act shall take effect November 1, 2020.
