Bill Text: NY S07530 | 2019-2020 | General Assembly | Introduced

---

Bill Title: Restores judicial discretion relating to bail reform; provides that when the defendant is charged with a felony, the court shall request of the applicable county pre-trial services agency a risk and needs assessment be conducted on the eligible defendant for the purpose of determining whether such defendant should be released on the defendant's own recognizance, released under non-monetary conditions or, where authorized, bail or commit the defendant to the custody of the sheriff; defines risks and needs assessment; makes related provisions.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2020-01-23 - REFERRED TO CODES [S07530 Detail]

Download: New_York-2019-S07530-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          7530

                    IN SENATE

                                    January 23, 2020
                                       ___________

        Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes

        AN ACT to amend the criminal procedure law, in relation to bail  reform;
          and to repeal certain provisions of such law relating thereto

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 500.10 of the criminal procedure law is amended  by
     2  adding a new subdivision 23 to read as follows:
     3    23.  "Risk  and  needs  assessment"  means a risk and needs assessment
     4  instrument, approved by the chief administrative judge  of  the  unified
     5  court  system.  Such  approved assessment instrument shall be objective,
     6  standardized and developed based on analysis of empirical data and  risk
     7  factors  relevant to the principal's danger to the community and risk of
     8  failure of a principal to appear. Such  approved  assessment  instrument
     9  shall  not  be  discriminatory  based on race, national origin, sex, any
    10  other protected class or socioeconomic status.
    11    § 2. Section 510.10 of the  criminal  procedure  law,  as  amended  by
    12  section  2  of part JJJ of chapter 59 of the laws of 2019, is amended to
    13  read as follows:
    14  § 510.10 Securing order; when required; alternatives available; standard
    15             to be applied.
    16    1. When a principal, whose  future  court  attendance  at  a  criminal
    17  action or proceeding is or may be required, comes under the control of a
    18  court,  such  court  shall, in accordance with this title, by a securing
    19  order [release the principal] request of the applicable county pre-trial
    20  services agency that a risk and needs assessment  be  conducted  on  the
    21  eligible  principal  and such court shall take into account the risk and
    22  needs assessment, but such assessment shall not be the  sole  determina-
    23  tive  factor,  for  the  purpose  of  determining whether such principal
    24  should be released on the principal's  own  recognizance,  [release  the
    25  principal] released under non-monetary conditions, or, where authorized,
    26  fix  bail  or commit the principal to the custody of the sheriff. In all
    27  such cases, except where another type of securing order is shown  to  be
    28  required  by law, the court shall release the principal pending trial on

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14842-05-0
        S. 7530                             2

     1  the principal's own recognizance, unless [it  is]  the  risk  and  needs
     2  assessment  has  demonstrated  and  the  court  [makes an individualized
     3  determination] determines that the principal is a danger to the communi-
     4  ty  or  poses  a risk of flight to avoid prosecution.  If such a finding
     5  specific to risk of flight to avoid prosecution is made, the court  must
     6  select  the  least  restrictive  alternative and condition or conditions
     7  that will reasonably assure the principal's return to court.  The  court
     8  shall  explain  its  choice of release, release with conditions, bail or
     9  remand on the record or in writing.
    10    2. A principal is entitled to representation  by  counsel  under  this
    11  chapter  in  preparing an application for release, when a securing order
    12  is being considered and when a securing  order  is  being  reviewed  for
    13  modification, revocation or termination. If the principal is financially
    14  unable to obtain counsel, counsel shall be assigned to the principal.
    15    [3.  In  cases  other  than  as  described in subdivision four of this
    16  section the court shall release the principal pending trial on the prin-
    17  cipal's own recognizance, unless the court finds on  the  record  or  in
    18  writing  that  release  on  the  principal's  own  recognizance will not
    19  reasonably assure the principal's return to court.  In  such  instances,
    20  the  court  shall  release  the principal under non-monetary conditions,
    21  selecting the least restrictive alternative  and  conditions  that  will
    22  reasonably  assure  the  principal's  return  to  court. The court shall
    23  explain its choice of alternative and conditions on  the  record  or  in
    24  writing.
    25    4.  Where  the principal stands charged with a qualifying offense, the
    26  court, unless otherwise prohibited by law, may in its discretion release
    27  the principal pending trial on the principal's own recognizance or under
    28  non-monetary conditions, fix bail, or, where the  defendant  is  charged
    29  with  a  qualifying  offense which is a felony, the court may commit the
    30  principal to the custody of the sheriff. A principal stands charged with
    31  a qualifying offense for the purposes of this subdivision when he or she
    32  stands charged with:
    33    (a) a felony enumerated in section 70.02 of the penal law, other  than
    34  burglary  in  the second degree as defined in subdivision two of section
    35  140.25 of the penal law or robbery in the second degree  as  defined  in
    36  subdivision one of section 160.10 of the penal law;
    37    (b) a crime involving witness intimidation under section 215.15 of the
    38  penal law;
    39    (c)  a  crime involving witness tampering under section 215.11, 215.12
    40  or 215.13 of the penal law;
    41    (d) a class A felony defined in the penal law, other than  in  article
    42  two  hundred  twenty of such law with the exception of section 220.77 of
    43  such law;
    44    (e) a felony sex offense defined in section 70.80 of the penal law  or
    45  a  crime involving incest as defined in section 255.25, 255.26 or 255.27
    46  of such law, or a misdemeanor defined in article one hundred  thirty  of
    47  such law;
    48    (f)  conspiracy  in  the second degree as defined in section 105.15 of
    49  the penal law, where the underlying allegation of such  charge  is  that
    50  the  defendant  conspired  to commit a class A felony defined in article
    51  one hundred twenty-five of the penal law;
    52    (g) money laundering in support of terrorism in the  first  degree  as
    53  defined  in section 470.24 of the penal law; money laundering in support
    54  of terrorism in the second degree as defined in section  470.23  of  the
    55  penal  law;  or  a  felony crime of terrorism as defined in article four
        S. 7530                             3

     1  hundred ninety of the penal law, other than the crime defined in section
     2  490.20 of such law;
     3    (h)  criminal  contempt in the second degree as defined in subdivision
     4  three of section 215.50 of the penal law, criminal contempt in the first
     5  degree as defined in subdivision (b), (c) or (d) of  section  215.51  of
     6  the  penal  law  or  aggravated  criminal contempt as defined in section
     7  215.52 of the penal law, and the underlying allegation of such charge of
     8  criminal contempt in the second degree, criminal contempt in  the  first
     9  degree  or aggravated criminal contempt is that the defendant violated a
    10  duly served order of protection where the protected party is a member of
    11  the defendant's same family or household as defined in  subdivision  one
    12  of section 530.11 of this article; or
    13    (i)  facilitating  a  sexual  performance by a child with a controlled
    14  substance or alcohol as defined in section 263.30 of the penal law,  use
    15  of  a  child in a sexual performance as defined in section 263.05 of the
    16  penal law or luring a child as defined in  subdivision  one  of  section
    17  120.70 of the penal law.
    18    5.  Notwithstanding  the  provisions of subdivisions three and four of
    19  this section, with] 3. With respect to any  charge  for  which  bail  or
    20  remand  is not ordered, and for which the court would not [or could not]
    21  otherwise require bail or remand, a defendant may, at any time,  request
    22  that  the  court set bail in a nominal amount requested by the defendant
    23  in the form specified in paragraph (a) of  subdivision  one  of  section
    24  520.10  of  this  title;  if  the court is satisfied that the request is
    25  voluntary, the court shall set such bail in such amount.
    26    [6.] 4. When a securing order is revoked or  otherwise  terminated  in
    27  the  course  of  an uncompleted action or proceeding but the principal's
    28  future court attendance still is or may be required and the principal is
    29  still under the control of a court, a new securing order must be issued.
    30  When the court revokes or otherwise terminates a  securing  order  which
    31  committed  the  principal to the custody of the sheriff, the court shall
    32  give written notification to the sheriff of such  revocation  or  termi-
    33  nation of the securing order.
    34    § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
    35  amended  by  section 3 of part JJJ of chapter 59 of the laws of 2019, is
    36  amended to read as follows:
    37    1. Upon any occasion when a court has issued  a  securing  order  with
    38  respect  to  a principal and the principal is confined in the custody of
    39  the sheriff as a result of the securing order  or  a  previously  issued
    40  securing  order, the principal may make an application for recognizance,
    41  release under non-monetary conditions or bail. Any such decision by  the
    42  court for a change in a securing order with respect to a principal shall
    43  take  into account the risk and needs assessment conducted by the appli-
    44  cable county pre-trial services agency, but such assessment shall not be
    45  the sole determinative factor.
    46    § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
    47  amended by section 5 of part JJJ of chapter 59 of the laws of  2019,  is
    48  amended to read as follows:
    49    1.  With  respect  to  any  principal,  the court in all cases, unless
    50  otherwise provided by law, must impose the least  restrictive  kind  and
    51  degree of control or restriction that is necessary to secure the princi-
    52  pal's return to court when required unless such principal poses a danger
    53  to  the community. In determining that matter, the court [must] in addi-
    54  tion to taking into account the risk and needs assessment  conducted  by
    55  the  applicable  county  pre-trial  services agency may, on the basis of
    56  available information, consider and take into account information  about
        S. 7530                             4

     1  the  principal  that  is  relevant  to  the principal's return to court,
     2  including:
     3    (a) The principal's activities and history;
     4    (b) If the principal is a defendant, the charges facing the principal;
     5    (c) The principal's criminal conviction record if any;
     6    (d)  The  principal's  record  of  previous adjudication as a juvenile
     7  delinquent, as retained pursuant to section 354.2 of  the  family  court
     8  act,  or,  of  pending cases where fingerprints are retained pursuant to
     9  section 306.1 of such act, or a youthful offender, if any;
    10    (e) The principal's previous record with respect to  flight  to  avoid
    11  criminal prosecution;
    12    (f)  If monetary bail is authorized, according to the restrictions set
    13  forth in this title, the principal's individual financial circumstances,
    14  and, in cases where bail is authorized, the principal's ability to  post
    15  bail  without  posing  undue  hardship, as well as his or her ability to
    16  obtain a secured, unsecured, or partially secured bond;
    17    (g) Where the principal is charged with a crime or  crimes  against  a
    18  member  or  members  of  the  same  family  or household as that term is
    19  defined in subdivision one of section 530.11 of this title, the  follow-
    20  ing factors:
    21    (i) any violation by the principal of an order of protection issued by
    22  any  court  for the protection of a member or members of the same family
    23  or household as that term is  defined  in  subdivision  one  of  section
    24  530.11  of  this  title,  whether  or  not  such  order of protection is
    25  currently in effect; and
    26    (ii) the principal's history of use or possession of a firearm; and
    27    (h) If the principal is a defendant, in the case of an application for
    28  a securing order pending appeal, the merit  or  lack  of  merit  of  the
    29  appeal.
    30    §  5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal
    31  procedure law, as added by section 8 of part JJJ of chapter  59  of  the
    32  laws of 2019, is amended to read as follows:
    33    [(a) Any questionnaire, instrument or tool] The risk and needs assess-
    34  ment  instrument  used with a principal in the process of considering or
    35  determining the principal's possible release  on  recognizance,  release
    36  under  non-monetary  conditions  or on bail, or used with a principal in
    37  the process of considering or determining a condition or  conditions  of
    38  release  or  monitoring by a pretrial services agency, shall be promptly
    39  made available to the principal and the principal's counsel upon  [writ-
    40  ten]  request.  [Any  such blank form questionnaire, instrument or tool]
    41  Any such blank risk and needs assessment instrument  regularly  used  in
    42  the county for such purpose or a related purpose shall be made available
    43  to any person promptly upon written request.
    44    §  6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal
    45  procedure law is REPEALED.
    46    § 7. Paragraph (a) of subdivision 1 of section 530.20 of the  criminal
    47  procedure  law,  as added by section 16 of part JJJ of chapter 59 of the
    48  laws of 2019, is amended to read as follows:
    49    (a) [In cases other than as described in paragraph (b) of this  subdi-
    50  vision the] When the principal is charged with an offense or offenses of
    51  less  than  felony  grade only, the court shall [release the] request of
    52  the applicable county pre-trial services agency a risk and needs assess-
    53  ment be conducted on the eligible principal and  the  court  shall  take
    54  into  account  the  risk and needs assessment, but such assessment shall
    55  not be the sole determinative factor, for  the  purpose  of  determining
    56  whether  such  principal should be released pending trial on the princi-
        S. 7530                             5

     1  pal's own recognizance, [unless the court finds  on  the  record  or  in
     2  writing  that  release  on  the  principal's  own  recognizance will not
     3  reasonably assure the principal's return to court.  In  such  instances,
     4  the  court  shall  release  the principal under non-monetary conditions,
     5  selecting the least restrictive alternative  and  conditions  that  will
     6  reasonably  assure  the principal's return to court] released under non-
     7  monetary conditions, or where authorized, fix bail or commit the princi-
     8  pal to the custody of the sheriff. The court shall explain its choice of
     9  [alternative and] release, release with conditions, bail  or  remand  on
    10  the record or in writing.
    11    §  8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal
    12  procedure law is REPEALED.
    13    § 9. Paragraph (d) of subdivision 1 of section 530.20 of the  criminal
    14  procedure  law,  as added by section 16 of part JJJ of chapter 59 of the
    15  laws of 2019, is  relettered  paragraph  (b)  and  amended  to  read  as
    16  follows:
    17    (b)  [Notwithstanding the provisions of paragraphs (a) and (b) of this
    18  subdivision, with] With respect to any charge for which bail  or  remand
    19  is  not ordered, and for which the court would not [or could not] other-
    20  wise require bail or remand, a defendant may, at any time, request  that
    21  the court set bail in a nominal amount requested by the defendant in the
    22  form  specified in paragraph (a) of subdivision one of section 520.10 of
    23  this title; if the court is satisfied that the request is voluntary, the
    24  court shall set such bail in such amount.
    25    § 10. The opening paragraph of subdivision 2 of section 530.20 of  the
    26  criminal  procedure law, as amended by section 16 of part JJJ of chapter
    27  59 of the laws of 2019, is amended to read as follows:
    28    When the defendant is charged, by felony complaint, with a felony, the
    29  court [may, in its discretion, order] shall, request of  the  applicable
    30  county  pre-trial  services  agency  a  risk  and  needs  assessment  be
    31  conducted on the eligible  defendant  and  the  court  shall  take  into
    32  account  the risk and needs assessment, but such assessment shall not be
    33  the sole determinative factor, for the purpose  of  determining  whether
    34  such  defendant  should be released on the defendant's own recognizance,
    35  [release] released under non-monetary conditions, or, where  authorized,
    36  bail  or  commit  the  defendant to the custody of the sheriff except as
    37  otherwise provided in [subdivision one of this section or] this subdivi-
    38  sion:
    39    § 11. Section 530.40 of the criminal  procedure  law,  as  amended  by
    40  section  18 of part JJJ of chapter 59 of the laws of 2019, is amended to
    41  read as follows:
    42  § 530.40 Order of recognizance, release under non-monetary conditions or
    43             bail; by superior court when action is pending therein.
    44    When a criminal action is pending in a  superior  court,  such  court,
    45  upon  application of a defendant, must or may order recognizance or bail
    46  as follows:
    47    1. When the defendant is charged with an offense or offenses  of  less
    48  than felony grade only, the court must, request of the applicable county
    49  pre-trial  services  agency  a risk and needs assessment be conducted on
    50  the eligible defendant and the court shall take into  account  the  risk
    51  and needs assessment, but such assessment shall not be the sole determi-
    52  native  factor,  for  the purpose of determining whether such defendant,
    53  unless otherwise provided by law, should be  released  on  an  order  of
    54  recognizance  or  bail  or  release  under  non-monetary  conditions [in
    55  accordance with this section] or commit the defendant to the custody  of
    56  the sheriff.
        S. 7530                             6

     1    2. When the defendant is charged with a felony, the court [may, unless
     2  otherwise  provided  by  law in its discretion, order]  shall request of
     3  the applicable county pre-trial services agency a risk and needs assess-
     4  ment be conducted on the eligible defendant and  the  court  shall  take
     5  into  account  the  risk and needs assessment, but such assessment shall
     6  not be the sole determinative factor, for  the  purpose  of  determining
     7  whether  such defendant should be released on the defendant's own recog-
     8  nizance, [release] released  under  non-monetary  conditions  or,  where
     9  authorized,  bail or commit the defendant to the custody of the sheriff.
    10  In any such case in which an indictment (a) has resulted from  an  order
    11  of  a  local  criminal court holding the defendant for the action of the
    12  grand jury, or (b) was filed at a time when a felony complaint  charging
    13  the  same  conduct  was  pending in a local criminal court, and in which
    14  such local criminal court or a superior court judge has issued an  order
    15  of recognizance, release under non-monetary conditions or, where author-
    16  ized,  bail  which is still effective, the superior court's order may be
    17  in the form of a direction continuing the effectiveness of the  previous
    18  order.
    19    [3.  In  cases  other  than  as  described in subdivision four of this
    20  section the court shall release the principal pending trial on the prin-
    21  cipal's own recognizance, unless the court finds on  the  record  or  in
    22  writing  that  release  on  the  principal's  own  recognizance will not
    23  reasonably assure the principal's return to court.  In  such  instances,
    24  the  court  shall  release  the principal under non-monetary conditions,
    25  selecting the least restrictive alternative  and  conditions  that  will
    26  reasonably  assure  the  principal's  return  to  court. The court shall
    27  explain its choice of alternative and conditions on  the  record  or  in
    28  writing.
    29    4.  Where  the principal stands charged with a qualifying offense, the
    30  court, unless otherwise prohibited by law, may in its discretion release
    31  the principal pending trial on the principal's own recognizance or under
    32  non-monetary conditions, fix bail, or, where the  defendant  is  charged
    33  with  a  qualifying  offense which is a felony, the court may commit the
    34  principal to the custody of the sheriff. The  court  shall  explain  its
    35  choice of release, release with conditions, bail or remand on the record
    36  or  in writing. A principal stands charged with a qualifying offense for
    37  the purposes of this subdivision when he or she stands charged with:
    38    (a) a felony enumerated in section 70.02 of the penal law, other  than
    39  burglary  in  the second degree as defined in subdivision two of section
    40  140.25 of the penal law or robbery in the second degree  as  defined  in
    41  subdivision one of section 160.10 of the penal law;
    42    (b) a crime involving witness intimidation under section 215.15 of the
    43  penal law;
    44    (c)  a  crime involving witness tampering under section 215.11, 215.12
    45  or 215.13 of the penal law;
    46    (d) a class A felony defined in the penal law, other than  in  article
    47  two  hundred  twenty of such law with the exception of section 220.77 of
    48  such law;
    49    (e) a felony sex offense defined in section 70.80 of the penal law  or
    50  a  crime involving incest as defined in section 255.25, 255.26 or 255.27
    51  of such law, or a misdemeanor defined in article one hundred  thirty  of
    52  such law;
    53    (f)  conspiracy  in  the second degree as defined in section 105.15 of
    54  the penal law, where the underlying allegation of such  charge  is  that
    55  the  defendant  conspired  to commit a class A felony defined in article
    56  one hundred twenty-five of the penal law;
        S. 7530                             7

     1    (g) money laundering in support of terrorism in the  first  degree  as
     2  defined  in section 470.24 of the penal law; money laundering in support
     3  of terrorism in the second degree as defined in section  470.23  of  the
     4  penal  law;  or  a  felony crime of terrorism as defined in article four
     5  hundred ninety of the penal law, other than the crime defined in section
     6  490.20 of such law;
     7    (h)  criminal  contempt in the second degree as defined in subdivision
     8  three of section 215.50 of the penal law, criminal contempt in the first
     9  degree as defined in subdivision (b), (c) or (d) of  section  215.51  of
    10  the  penal  law  or  aggravated  criminal contempt as defined in section
    11  215.52 of the penal law, and the underlying allegation of such charge of
    12  criminal contempt in the second degree, criminal contempt in  the  first
    13  degree  or aggravated criminal contempt is that the defendant violated a
    14  duly served order of protection where the protected party is a member of
    15  the defendant's same family or household as defined in  subdivision  one
    16  of section 530.11 of this article; or
    17    (i)  facilitating  a  sexual  performance by a child with a controlled
    18  substance or alcohol as defined in section 263.30 of the penal law,  use
    19  of  a  child in a sexual performance as defined in section 263.05 of the
    20  penal law or luring a child as defined in  subdivision  one  of  section
    21  120.70 of the penal law.
    22    5.  Notwithstanding  the  provisions of subdivisions three and four of
    23  this section, with] 3. With respect to any  charge  for  which  bail  or
    24  remand  is not ordered, and for which the court would not [or could not]
    25  otherwise require bail or remand, a defendant may, at any time,  request
    26  that  the  court set bail in a nominal amount requested by the defendant
    27  in the form specified in paragraph (a) of  subdivision  one  of  section
    28  520.10  of  this  title;  if  the court is satisfied that the request is
    29  voluntary, the court shall set such bail in such amount.
    30    [6.] 4. Notwithstanding the provisions of  [subdivisions]  subdivision
    31  two[,  three  and  four] of this section, a superior court may not order
    32  recognizance, release under non-monetary conditions  or,  where  author-
    33  ized,  bail,  or  permit a defendant to remain at liberty pursuant to an
    34  existing order, after the defendant has been convicted of either: (a)  a
    35  class  A felony or (b) any class B or class C felony as defined in arti-
    36  cle one hundred thirty of the penal law committed  or  attempted  to  be
    37  committed  by  a  person eighteen years of age or older against a person
    38  less than eighteen years of age. In either case the court must commit or
    39  remand the defendant to the custody of the sheriff.
    40    [7.] 5. Notwithstanding the provisions of  [subdivisions]  subdivision
    41  two[,  three  and  four] of this section, a superior court may not order
    42  recognizance, release under non-monetary conditions  or,  where  author-
    43  ized,  bail when the defendant is charged with a felony unless and until
    44  the district attorney has had an opportunity to be heard in  the  matter
    45  and  such court and counsel for the defendant have been furnished with a
    46  report as described in subparagraph (ii) of paragraph (b) of subdivision
    47  two of section 530.20 of this article.
    48    § 12. This act shall take effect immediately.