10

25 PART C

26 Section 1. Legislative findings. The legislature finds and declares

27 that there is a present need to revise New York's procedures regulating
28 release of persons charged with criminal offenses pending trial, set
29 forth in title P of the criminal procedure law, so that fewer presumed-
30 innocent people are held behind bars pretrial. The bill breaks the link
31 between paying money and earning freedom in cases involving misdemeanors
32 and non-violent felonies, so that defendants are either released on
33 their own recognizance or, failing that, released under non-monetary
34 conditions. The bill also revises the existing process of remanding
35 individuals in jail before trial, so that pretrial detention is used in
36 limited cases involving high risk of flight or a current risk to the
37 physical safety of a reasonably identifiable person or persons, and
38 comports with Supreme Court jurisprudence regarding required substantive
39 and procedural due process before detention.
40 § 2. Subdivisions 1, 2, 4, 5, 6, 7, 8 and 9 of section 500.10 of the
41 criminal procedure law are amended and a new subdivision 3-a is added to
42 read as follows:
43 1. "Principal" means a defendant in a criminal action or proceeding,
44 or a person adjudged a material witness therein, or any other person so
45 involved therein that [he] the principal may by law be compelled to
46 appear before a court for the purpose of having such court exercise
47 control over [his] the principal's person to secure [his] the princi-
48 pal's future attendance at the action or proceeding when required, and
49 who in fact either is before the court for such purpose or has been
50 before it and been subjected to such control.
51 2. "Release on own recognizance." A court releases a principal on
52 [his] the principal's own recognizance when, having acquired control
 S. 7505--A 11 A. 9505--A

1 over [his] the principal's person, it permits [him] the principal to be

2 at liberty during the pendency of the criminal action or proceeding
3 involved upon condition that [he] the principal will appear thereat
4 whenever [his] the principal's attendance may be required and will at
5 all times render [himself] the principal amenable to the orders and
6 processes of the court.
7 3-a. "Release under non-monetary conditions". A court releases a prin-
8 cipal under non-monetary conditions when, having acquired control over a
9 person, it permits the person to be at liberty during the pendency of
10 the criminal action under conditions set by the court, which shall be
11 the least restrictive that will reasonably assure the principal's
12 appearance in court. Such conditions may include, among others, that the
13 principal shall be in contact with a pretrial services agency serving
14 principals in that county; that the principal shall abide by specified
15 restrictions on association or travel; that the principal shall refrain
16 from possessing a firearm, destructive device or other dangerous weapon;
17 that the person be placed in pretrial supervision with a pretrial
18 services agency serving principals in that county; that the person be
19 monitored with an approved electronic monitoring device.
20 4. "Commit to the custody of the sheriff." A court commits a principal
21 to the custody of the sheriff when, having acquired control over his
22 person, it orders that he be confined in the custody of the sheriff
23 [during the pendency of the criminal action or proceeding involved]
24 pending payment of bail that is fixed, or pending the outcome of a hear-
25 ing as to whether the individual shall be ordered into pretrial
26 detention.
27 5. "Securing order" means an order of a court [committing a principal
28 to the custody of the sheriff, or fixing bail, or releasing him on his
29 own recognizance] that either releases a principal under personal recog-
30 nizance, releases the principal under non-monetary conditions, or fixes
31 bail, all with the direction that the principal return to court for
32 future court appearances and to be at all times amendable to the orders
33 and processes of the court.
34 6. ["Order of recognizance or bail" means a securing order releasing a
35 principal on his own recognizance or fixing bail] "Pretrial detention".
36 A court may commit a principal to pretrial detention if, after a hearing
37 and making such findings as specified in article five hundred forty-five
38 of this title, a judge so orders detention.
39 7. ["Application for recognizance or bail" means an application by a
40 principal that the court, instead of committing him to or retaining him
41 in the custody of the sheriff, either release him on his own recogni-
42 zance or fix bail.]
43 [8.] "Post bail" means to deposit bail in the amount and form fixed by
44 the court, with the court or with some other authorized public servant
45 or agency.
46 [9.] 8. "Bail" means cash bail [or], a bail bond or money paid with a
47 credit card.
48 § 3. Section 510.10 of the criminal procedure law, as amended by chap-
49 ter 459 of the laws of 1984, is amended to read as follows:
50 § 510.10 Securing order; when required; alternatives available; standard
51 to be applied.
52 When a principal, whose future court attendance at a criminal action
53 or proceeding is or may be required, initially comes under the control
54 of a court, such court [must] shall, by a securing order[, either
55 release him on his own recognizance, fix bail or commit him to the
56 custody of the sheriff.]:
 S. 7505--A 12 A. 9505--A

1 1. In cases where the most serious charge facing the defendant in the
2 case before the court or a pending case is a misdemeanor or a felony
3 other than that enumerated in section 70.02 of the penal law or a class
4 A felony offense defined in the penal law, release the principal pending
5 trial on the principal's personal recognizance, unless the court finds
6 on the record that release on recognizance will not reasonably assure
7 the individual's court attendance. In such instances, the court will
8 release the individual under non-monetary conditions, selecting the
9 least restrictive alternative that will reasonably assure the princi-
10 pal's court attendance. The court will support its choice of alterna-
11 tive on the record. A principal shall not be required to pay for any
12 part of the cost of release under non-monetary conditions, except that a
13 principal may be required to pay for all or a portion of the cost of
14 electronic monitoring unless the principal is indigent and cannot pay
15 all or a portion of the cost of such monitoring;
16 2. In cases where the most serious charge facing the defendant in the
17 case before the court or a pending case is a felony enumerated in
18 section 70.02 of the penal law or a class A felony offense defined in
19 the penal law, release the principal pending trial on the principal's
20 personal recognizance, or release the principal under non-monetary
21 conditions, or fix bail, selecting the least restrictive alternative
22 that will reasonably assure the principal's court appearance when
23 required. The court will support its choice of alternative on the
24 record.
25 3. Notwithstanding the above, in cases where the prosecutor indicates
26 that it intends to move for pretrial detention as set out in article
27 five hundred forty-five of this title, the court shall commit the
28 defendant to the custody of the sheriff.
29 4. When a securing order is revoked or otherwise terminated in the
30 course of an uncompleted action or proceeding but the principal's future
31 court attendance still is or may be required and [he] the principal is
32 still under the control of a court, a new securing order must be issued.
33 When the court revokes or otherwise terminates a securing order which
34 committed the principal to the custody of the sheriff, the court shall
35 give written notification to the sheriff of such revocation or termi-
36 nation of the securing order.
37 § 4. Section 510.20 of the criminal procedure law is amended to read
38 as follows:
39 § 510.20 [Application for recognizance or bail; making and determination]
40 [thereof in general] Application for a change in securing
41 order based on a material change of circumstances.
42 1. Upon any occasion when a court [is required to issue] has issued a
43 securing order with respect to a principal, [or at any time when a prin-
44 cipal is confined in the custody of the sheriff as a result of a previ-
45 ously issued securing order, he] the defendant or the people may make an
46 application for [recognizance or bail] a different securing order due to
47 a material change of circumstances:
48 (a) in cases for which the most serious charge before the court or in
49 a pending case is a misdemeanor or felony other than that enumerated in
50 section 70.02 of the penal law or a class A felony offense defined in
51 the penal law for a different non-monetary securing order; or
52 (b) in cases for which the most serious charge is a felony enumerated
53 in section 70.02 of the penal law or a class A felony offense defined in
54 the penal law for a different securing order.
55 2. Upon such application, the principal or the people must be
56 accorded an opportunity to be heard and to contend that [an order of]
 S. 7505--A 13 A. 9505—A

1 [recognizance or bail] a different securing order must or should issue[,

2 that the court should release him on his own recognizance rather than
3 fix bail, and that if bail is fixed it should be in a suggested amount
4 and form] because, due to a material change in circumstances, the
5 current order is either too restrictive or not restrictive enough to
6 reasonably ensure a defendant's appearance in court.
7 § 5. The criminal procedure law is amended by adding a new section
8 510.25 to read as follows:
9 § 510.25 Rehearing on bail after five days in custody after bail is
10 fixed.
11 In addition to any other available motion or procedure available under
12 this part, a principal for whom bail was fixed and who is still in
13 custody five days after bail was fixed shall be brought before the court
14 the next business day for a rehearing on the securing order. The court
15 shall examine the principal's financial circumstances and order a new
16 securing order. If the court chooses to fix bail, it shall do so at an
17 amount that will both reasonably assure the defendant's appearance in
18 court and that the defendant is reasonably able to pay.
19 § 6. Section 510.30 of the criminal procedure law, subparagraph (v) of
20 paragraph (a) of subdivision 2 as amended by chapter 920 of the laws of
21 1982, subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered
22 by chapter 447 of the laws of 1977, subparagraph (vii) of paragraph (a)
23 of subdivision 2 as added and subparagraphs (viii) and (ix) of paragraph
24 (a) of subdivision 2 as renumbered by section 1 of part D of chapter 491
25 of the laws of 2012, and subdivision 3 as added by chapter 788 of the
26 laws of 1981, is amended to read as follows:
27 § 510.30 Application for [recognizance or bail] securing order; rules of
28 law and criteria controlling determination.
29 [1. Determinations of applications for recognizance or bail are not in
30 all cases discretionary but are subject to rules, prescribed in article
31 five hundred thirty and other provisions of law relating to specific
32 kinds of criminal actions and proceedings, providing (a) that in some
33 circumstances such an application must as a matter of law be granted,
34 (b) that in others it must as a matter of law be denied and the princi-
35 pal committed to or retained in the custody of the sheriff, and (c) that
36 in others the granting or denial thereof is a matter of judicial
37 discretion.]
38 [2. To the extent that the issuance of an order of recognizance or bail
39 and the terms thereof are matters of discretion rather than of law, an
40 application is determined on the basis of the following factors and
41 criteria:]
42 [(a)] With respect to any principal, the court must [consider the]
43 impose the least restrictive kind and degree of control or restriction
44 that is necessary to secure [his] the principal's court attendance when
45 required. In determining that matter, the court must, on the basis of
46 available information, consider and take into account:
47 [(i) The principal's character, reputation, habits and mental condi-
48 tion;]
49 [(ii) His employment and financial resources; and]
50 [(iii) His family ties and the length of his residence if any in the
51 community; and]
52 [(iv) His] 1. information about the principal that is relevant to court
53 appearance, including, but not limited to, the principal's activities,
54 history and community ties;
55 2. if the principal is a defendant, the charges facing the principal;
56 3. the principal's criminal record if any; [and]
 S. 7505--A 14 A. 9505—A

1 [(v)] 4. His record of previous adjudication as a juvenile delinquent,

2 as retained pursuant to section 354.2 of the family court act, or, of
3 pending cases where fingerprints are retained pursuant to section 306.1
4 of such act, or a youthful offender, if any; [and]
5 [(vi) His] 5. the principal's previous record if any in responding to
6 court appearances when required or with respect to flight to avoid crim-
7 inal prosecution; [and]
8 [(vii)] 6. if monetary bail is permitted, according to the restrictions
9 set forth in section 510.10 of this title, the principal's financial
10 circumstances;
11 7. Where the principal is charged with a crime or crimes against a
12 member or members of the same family or household as that term is
13 defined in subdivision one of section 530.11 of this title, the follow-
14 ing factors:
15 [(A)] (i) any violation by the principal of an order of protection
16 issued by any court for the protection of a member or members of the
17 same family or household as that term is defined in subdivision one of
18 section 530.11 of this title, whether or not such order of protection is
19 currently in effect; and
20 [(B)] (ii) the principal's history of use or possession of a firearm;
21 [and]
22 [(viii)] 8. If [he] the principal is a defendant, the weight of the
23 evidence against [him] the principal in the pending criminal action and
24 any other factor indicating probability or improbability of conviction;
25 or, in the case of an application for [bail or recognizance] securing
26 order pending appeal, the merit or lack of merit of the appeal; and
27 [(ix)] 9. If [he] the principal is a defendant, the sentence which may
28 be or has been imposed upon conviction[.]
29 [(b) Where the principal is a defendant-appellant in a pending appeal
30 from a judgment of conviction, the court must also consider the likeli-
31 hood of ultimate reversal of the judgment. A determination that the
32 appeal is palpably without merit alone justifies, but does not require,
33 a denial of the application, regardless of any determination made with
34 respect to the factors specified in paragraph (a).]
35 [3. When bail or recognizance is ordered, the court shall inform the
36 principal, if he is a defendant charged with the commission of a felony,
37 that the release is conditional and that the court may revoke the order
38 of release and commit the principal to the custody of the sheriff in
39 accordance with the provisions of subdivision two of section 530.60 of
40 this chapter if he commits a subsequent felony while at liberty upon
41 such order.]; and
42 10. if the principal is a defendant-appellant in a pending appeal from
43 a judgment of conviction, the court must also consider the likelihood of
44 ultimate reversal of the judgment. A determination that the appeal is
45 palpably without merit alone justifies, but does not require, a denial
46 of the application, regardless of any determination made with respect to
47 the factors specified in this paragraph.
48 § 7. Section 510.40 of the criminal procedure law is amended to read
49 as follows:
50 § 510.40 [Application for recognizance or bail; determination thereof,]
51 [form of securing order and execution thereof] Notification
52 to principal by court of conditions of release and penal-
53 ties for violations of release.
54 1. [An application for recognizance or bail must be determined by a
55 securing order which either:]
 S. 7505--A 15 A. 9505--A

1 [(a) Grants the application and releases the principal on his own
2 recognizance; or]
3 [(b) Grants the application and fixes bail; or]
4 [(c) Denies the application and commits the principal to, or retains
5 him in, the custody of the sheriff.]
6 [2.] Upon ordering that a principal be released on [his] the princi-
7 pal's own recognizance, or released under non-monetary conditions, or,
8 if bail has been fixed, upon the posting of bail and successful examina-
9 tion that the bail complies with the order the court must direct [him]
10 the principal to appear in the criminal action or proceeding involved
11 whenever [his] the principal's attendance may be required and to [render
12 himself] be at all times amenable to the orders and processes of the
13 court. If the principal is a defendant, the court shall also direct the
14 defendant not to commit a crime while at liberty upon the court's secur-
15 ing order. If such principal is in the custody of the sheriff or at
16 liberty upon bail at the time of the order, the court must direct that
17 [he] the principal be discharged from such custody [or, as the case may
18 be, that his bail be exonerated].
19 [3. Upon the issuance of an order fixing bail, and upon the posting
20 thereof, the court must examine the bail to determine whether it
21 complies with the order. If it does, the court must, in the absence of
22 some factor or circumstance which in law requires or authorizes disap-
23 proval thereof, approve the bail and must issue a certificate of
24 release, authorizing the principal to be at liberty, and, if he is in
25 the custody of the sheriff at the time, directing the sheriff to
26 discharge him therefrom. If the bail fixed is not posted, or is not
27 approved after being posted, the court must order that the principal be
28 committed to the custody of the sheriff.]
29 2. If the principal is released under non-monetary conditions, the
30 court shall, in the document authorizing the principal's release, notify
31 the principal of:
32 (a) any of the conditions under which the principal is subject, in
33 addition to the directions in subdivision one of this section, in a
34 manner sufficiently clear and specific to serve as a guide for the prin-
35 cipal's conduct; and
36 (b) the consequences for violation of those conditions, which could
37 include revoking of the securing order, setting of a more restrictive
38 securing order, or, after the hearing prescribed in article five hundred
39 forty-five of this title, pretrial detention.
40 § 8. The criminal procedure law is amended by adding a new section
41 510.45 to read as follows:
42 § 510.45 Pretrial service agencies.
43 The office of court administration shall certify a pretrial services
44 agency or agencies in each county to monitor principals released under
45 conditions of non-monetary release.
46 § 9. Section 510.50 of the criminal procedure law is amended to read
47 as follows:
48 § 510.50 Enforcement of securing order.
49 When the attendance of a principal confined in the custody of the
50 sheriff is required at the criminal action or proceeding at a particular
51 time and place, the court may compel such attendance by directing the
52 sheriff to produce him or her at such time and place. If the principal
53 is at liberty on [his] the principal's own recognizance or non-monetary
54 conditions or on bail, [his] the principal's attendance may be achieved
55 or compelled by various methods, including notification and the issuance
56 of a bench warrant, prescribed by law in provisions governing such
 S. 7505--A 16 A. 9505--A

1 matters with respect to the particular kind of action or proceeding

2 involved.
3 § 10. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
4 procedure law, as amended by chapter 784 of the laws of 1972, is amended
5 to read as follows:
6 (b) The court [may] shall direct that the bail be posted in any one of
7 [two] three or more of the forms specified in subdivision one, desig-
8 nated in the alternative, and may designate different amounts varying
9 with the forms[;], except that one of the forms shall be either an unse-
10 cured or partially secured surety bond, as selected by the court.
11 § 11. The article heading of article 530 of the criminal procedure law
12 is amended to read as follows:
13 [ORDERS OF RECOGNIZANCE OR BAIL WITH]
14 [RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS]
15 [AND PROCEEDINGS--WHEN AND BY WHAT]
16 [COURTS AUTHORIZED] SECURING ORDERS WITH
17 RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS AND
18 PROCEEDINGS - WHEN AND BY WHAT COURTS AUTHORIZED
19 § 12. Section 530.10 of the criminal procedure law is amended to read
20 as follows:
21 § 530.10 Order of recognizance or bail; in general.
22 Under circumstances prescribed in this article, a court, upon applica-
23 tion of a defendant charged with or convicted of an offense, is
24 [required or authorized to order bail or recognizance] to issue a secur-
25 ing order for the release or prospective release of such defendant
26 during the pendency of either:
27 1. A criminal action based upon such charge; or
28 2. An appeal taken by the defendant from a judgment of conviction or
29 a sentence or from an order of an intermediate appellate court affirming
30 or modifying a judgment of conviction or a sentence.
31 § 13. Subdivision 4 of section 530.11 of the criminal procedure law,
32 as added by chapter 186 of the laws of 1997, is amended to read as
33 follows:
34 4. When a person is arrested for an alleged family offense or an
35 alleged violation of an order of protection or temporary order of
36 protection or arrested pursuant to a warrant issued by the supreme or
37 family court, and the supreme or family court, as applicable, is not in
38 session, such person shall be brought before a local criminal court in
39 the county of arrest or in the county in which such warrant is return-
40 able pursuant to article one hundred twenty of this chapter. Such local
41 criminal court may issue any order authorized under subdivision eleven
42 of section 530.12 of this article, section one hundred fifty-four-d or
43 one hundred fifty-five of the family court act or subdivision three-b of
44 section two hundred forty or subdivision two-a of section two hundred
45 fifty-two of the domestic relations law, in addition to discharging
46 other arraignment responsibilities as set forth in this chapter. In
47 making such order, the local criminal court shall consider the [bail
48 recommendation] securing order, if any, made by the supreme or family
49 court as indicated on the warrant or certificate of warrant. Unless the
50 petitioner or complainant requests otherwise, the court, in addition to
51 scheduling further criminal proceedings, if any, regarding such alleged
52 family offense or violation allegation, shall make such matter return-
53 able in the supreme or family court, as applicable, on the next day such
54 court is in session.
 S. 7505--A 17 A. 9505--A

1 § 14. Paragraph (a) of subdivision 8 of section 530.13 of the criminal

2 procedure law, as added by chapter 388 of the laws of 1984, is amended
3 to read as follows:
4 (a) revoke [an order of recognizance or bail] a securing order and
5 commit the defendant to custody; or
6 § 15. The opening paragraph of subdivision 1 of section 530.13 of the
7 criminal procedure law, as amended by chapter 137 of the laws of 2007,
8 is amended to read as follows:
9 When any criminal action is pending, and the court has not issued a
10 temporary order of protection pursuant to section 530.12 of this arti-
11 cle, the court, in addition to the other powers conferred upon it by
12 this chapter, may for good cause shown issue a temporary order of
13 protection in conjunction with any securing order [committing the
14 defendant to the custody of the sheriff or as a condition of a pre-trial
15 release, or as a condition of release on bail or an adjournment in
16 contemplation of dismissal]. In addition to any other conditions, such
17 an order may require that the defendant:
18 § 16. Subdivisions 9 and 11 of section 530.12 of the criminal proce-
19 dure law, subdivision 9 as amended by section 81 of subpart B of part C
20 of chapter 62 of the laws of 2011, subdivision 11 as amended by chapter
21 498 of the laws of 1993, the opening paragraph of subdivision 11 as
22 amended by chapter 597 of the laws of 1998, paragraph (a) of subdivision
23 11 as amended by chapter 222 of the laws of 1994, paragraph (d) of
24 subdivision 11 as amended by chapter 644 of the laws of 1996, are
25 amended to read as follows:
26 9. If no warrant, order or temporary order of protection has been
27 issued by the court, and an act alleged to be a family offense as
28 defined in section 530.11 of this [chapter] article is the basis of the
29 arrest, the magistrate shall permit the complainant to file a petition,
30 information or accusatory instrument and for reasonable cause shown,
31 shall thereupon hold such respondent or defendant, [admit to, fix or
32 accept bail,] establish a securing order or parole him or her for hear-
33 ing before the family court or appropriate criminal court as the
34 complainant shall choose in accordance with the provisions of section
35 530.11 of this [chapter] article.
36 11. If a defendant is brought before the court for failure to obey any
37 lawful order issued under this section, or an order of protection issued
38 by a court of competent jurisdiction in another state, territorial or
39 tribal jurisdiction, and if, after hearing, the court is satisfied by
40 competent proof that the defendant has willfully failed to obey any such
41 order, the court may:
42 (a) revoke [an order of recognizance or revoke an order of bail or
43 order forfeiture of such bail] a securing order and commit the defendant
44 to custody; or
45 (b) restore the case to the calendar when there has been an adjourn-
46 ment in contemplation of dismissal and commit the defendant to custody;
47 or
48 (c) revoke a conditional discharge in accordance with section 410.70
49 of this chapter and impose probation supervision or impose a sentence of
50 imprisonment in accordance with the penal law based on the original
51 conviction; or
52 (d) revoke probation in accordance with section 410.70 of this chapter
53 and impose a sentence of imprisonment in accordance with the penal law
54 based on the original conviction. In addition, if the act which consti-
55 tutes the violation of the order of protection or temporary order of
 S. 7505--A 18 A. 9505--A

1 protection is a crime or a violation the defendant may be charged with

2 and tried for that crime or violation.
3 § 17. Section 530.20 of the criminal procedure law, as amended by
4 chapter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of
5 subdivision 2 as amended by chapter 218 of the laws of 1979, is amended
6 to read as follows:
7 § 530.20 [Order of recognizance or bail;] Securing order by local crimi-
8 nal court when action is pending therein.
9 When a criminal action is pending in a local criminal court, such
10 court, upon application of a defendant, must [or may order recognizance
11 or bail] issue a securing order as follows:
12 1. [When the defendant is charged, by information, simplified informa-
13 tion, prosecutor's information or misdemeanor complaint, with an offense
14 or offenses of less than felony grade only, the court must order recog-
15 nizance or bail.] In cases where the most serious charge facing the
16 defendant in the case before the court or a pending case is a misdemea-
17 nor or a felony other than that enumerated in section 70.02 of the penal
18 law or a class A felony offense defined in the penal law, release the
19 principal pending trial on the principal's personal recognizance, unless
20 the court finds on the record that release on recognizance will not
21 reasonably assure the individual's court attendance. In such instances,
22 the court will release the individual under non-monetary conditions,
23 selecting the least restrictive alternative that will reasonably assure
24 the principal's court attendance. The court will support its choice of
25 alternative on the record. The principal shall not be required to pay
26 for any part of the cost of release under non-monetary conditions,
27 except that a principal may be required to pay for all or a portion of
28 the cost of electronic monitoring unless the principal is indigent and
29 cannot pay all or a portion of the cost of such monitoring.
30 2. [When the defendant is charged, by felony complaint, with a felony,
31 the court may, in its discretion, order recognizance or bail except as
32 otherwise provided in this subdivision:]
33 [(a) A city court, a town court or a village court may not order
34 recognizance or bail when (i) the defendant is charged with a class A
35 felony, or (ii) it appears that the defendant has two previous felony
36 convictions;]
37 [(b)] In cases where the most serious charge facing the defendant in
38 the case before the court or a pending case is a felony enumerated in
39 section 70.02 of the penal law or a class A felony offense defined in
40 the penal law, release the principal pending trial on the principal's
41 personal recognizance, or release the principal under non-monetary
42 conditions, or fix bail, selecting the least restrictive alternative
43 that will reasonably assure the principal's court appearance when
44 required. The court will support its choice of alternative on the
45 record.
46 3. Notwithstanding the above, in cases where the people indicate that
47 they intend to move for pretrial detention as set forth in article five
48 hundred forty-five of this title, the court shall commit the defendant
49 to the custody of the sheriff.
50 4. Notwithstanding the above, a city court, a town court or a village
51 court may not issue a securing order when the defendant is charged by
52 felony complaint with a felony when: (a) the defendant is charged with a
53 class A felony or (b) it appears that the defendant has two previous
54 felony convictions within the meaning of subdivision one of section
55 70.08 or 70.10 of the penal law. In these instances the court shall
56 commit the defendant to the custody of the sheriff for the county or
 S. 7505--A 19 A. 9505--A

1 superior court to make a determination about a securing order within

2 three days.
3 5. No local criminal court may order [recognizance or bail] a securing
4 order with respect to a defendant charged with a felony unless and
5 until[:]
6 [(i) The district attorney has been heard in the matter or, after
7 knowledge or notice of the application and reasonable opportunity to be
8 heard, has failed to appear at the proceeding or has otherwise waived
9 his right to do so; and]
10 [(ii) The] the court [has], and counsel for the defense, have been
11 furnished with a report of the division of criminal justice services
12 concerning the defendant's criminal record, if any, or with a police
13 department report with respect to the defendant's prior arrest and
14 conviction record, if any. If neither report is available, the court,
15 with the consent of the district attorney, may dispense with this
16 requirement; provided, however, that in an emergency, including but not
17 limited to a substantial impairment in the ability of such division or
18 police department to timely furnish such report, such consent shall not
19 be required if, for reasons stated on the record, the court deems it
20 unnecessary. [When the court has been furnished with any such report or
21 record, it shall furnish a copy thereof to counsel for the defendant or,
22 if the defendant is not represented by counsel, to the defendant.]
23 § 18. The section heading, subdivision 1 and subdivision 2 of section
24 530.30 of the criminal procedure law, subdivision 2 as amended by chap-
25 ter 762 of the laws of 1971, are amended to read as follows:
26 [Order of recognizance or bail; by superior court judge when action is]
27 [pending in local criminal court] Securing order by superior
28 court judge when action is pending in local criminal court.
29 1. When a criminal action is pending in a local criminal court, other
30 than one consisting of a superior court judge sitting as such, a judge
31 of a superior court holding a term thereof in the county, upon applica-
32 tion of a defendant, may order [recognizance or bail] a securing order
33 when such local criminal court:
34 (a) Lacks authority to issue such an order, pursuant to [paragraph
35 (a) of] subdivision [two] four of section 530.20; or
36 (b) Has denied an application for recognizance or bail; or
37 (c) Has fixed bail which is excessive; or
38 (d) Has set a securing order of release under non-monetary conditions
39 which are more restrictive than necessary to reasonably ensure court
40 attendance.
41 In such case, such superior court judge may vacate the order of such
42 local criminal court and release the defendant on [his own] recognizance
43 or under release with conditions, or fix bail in a lesser amount or in a
44 less burdensome form, whichever is the least restrictive alternative
45 that will reasonably assure defendant's appearance in court. The court
46 will support its choice of alternative on the record.
47 2. Notwithstanding the provisions of subdivision one, when the
48 defendant is charged with a felony in a local criminal court, a superior
49 court judge may not order recognizance or bail unless and until the
50 district attorney has had an opportunity to be heard in the matter and
51 such judge has been furnished with a report as described in [subpara-
52 graph (ii) of paragraph (b) of] subdivision [two] five of section
53 530.20.
54 § 19. Section 530.40 of the criminal procedure law, subdivision 3 as
55 amended by chapter 264 of the laws of 2003, and subdivision 4 as amended
56 by chapter 762 of the laws of 1971, is amended to read as follows:
 S. 7505--A 20 A. 9505--A

1 § 530.40 [Order of recognizance or bail;] Securing order by superior

2 court when action is pending therein.
3 When a criminal action is pending in a superior court, such court,
4 upon application of a defendant, must or may order recognizance or bail
5 as follows:
6 1. [When the defendant is charged with an offense or offenses of less
7 than felony grade only, the court must order recognizance or bail.]
8 [2. When the defendant is charged with a felony, the court may, in its
9 discretion, order recognizance or bail. In any such case in which an
10 indictment (a) has resulted from an order of a local criminal court
11 holding the defendant for the action of the grand jury, or (b) was filed
12 at a time when a felony complaint charging the same conduct was pending
13 in a local criminal court, and in which such local criminal court or a
14 superior court judge has issued an order of recognizance or bail which
15 is still effective, the superior court's order may be in the form of a
16 direction continuing the effectiveness of the previous order.] In cases
17 where the most serious charge facing the defendant in the case before
18 the court or a pending case is a misdemeanor or a felony other than that
19 enumerated in section 70.02 of the penal law or a class A felony offense
20 defined in the penal law, release the principal pending trial on the
21 principal's personal recognizance, unless the court finds on the record
22 that release on recognizance will not reasonably assure the individual's
23 court attendance. In such instances, the court will release the individ-
24 ual under non-monetary conditions, selecting the least restrictive
25 alternative that will reasonably assure the principal's court attend-
26 ance. The court will support its choice of alternative on the record.
27 The principal shall not be required to pay for any part of the cost of
28 release under non-monetary conditions, except that a principal may be
29 required to pay for all or a portion of the cost of electronic monitor-
30 ing unless the principal is indigent and cannot pay all or a portion of
31 the cost of such monitoring.
32 2. In cases where the most serious charge facing the defendant in the
33 case before the court or a pending case is a felony enumerated in
34 section 70.02 of the penal law or a class A felony offense defined in
35 the penal law, release the principal pending trial on the principal's
36 personal recognizance, or release the principal under non-monetary
37 conditions, or fix bail, selecting the least restrictive alternative
38 that will reasonably assure the principal's court appearance when
39 required. The court will support its choice of alternative on the
40 record.
41 3. Notwithstanding the above, in cases where the people indicate that
42 they intend to move for pretrial detention as set out in article five
43 hundred forty-five of this title, the court shall commit the defendant
44 to the custody of the sheriff.
45 4. Notwithstanding the provisions of [subdivision] subdivisions one
46 and two, a superior court may not [order recognizance or bail] issue a
47 securing order, or permit a defendant to remain at liberty pursuant to
48 an existing order, after [he] the defendant has been convicted of
49 either: (a) a class A felony or (b) any class B or class C felony
50 defined in article one hundred thirty of the penal law committed or
51 attempted to be committed by a person eighteen years of age or older
52 against a person less than eighteen years of age. In either case the
53 court must commit or remand the defendant to the custody of the sheriff.
54 [4.] 5. Notwithstanding the provisions of [subdivision] subdivisions
55 one and two, a superior court may not [order recognizance or bail] issue
56 a securing order when the defendant is charged with a felony unless and
 S. 7505--A 21 A. 9505--A

1 until the district attorney has had an opportunity to be heard in the

2 matter and such court [has] and counsel for the defense have been
3 furnished with a report as described in subparagraph (ii) of paragraph
4 (b) of subdivision two of section 530.20 of this article.
5 § 20. Subdivision 1 of section 530.45 of the criminal procedure law,
6 as amended by chapter 264 of the laws of 2003, is amended to read as
7 follows:
8 1. When the defendant is at liberty in the course of a criminal action
9 as a result of a prior [order of recognizance or bail] securing order
10 and the court revokes such order and then [either fixes no bail or fixes
11 bail in a greater amount or in a more burdensome form than was previous-
12 ly fixed and remands or commits defendant to the custody of the sheriff,
13 a judge designated in subdivision two, upon application of the defendant
14 following conviction of an offense other than a class A felony or a
15 class B or class C felony offense defined in article one hundred thirty
16 of the penal law committed or attempted to be committed by a person
17 eighteen years of age or older against a person less than eighteen years
18 of age, and before sentencing, may issue a securing order and either
19 release defendant on his own recognizance, or fix bail, or fix bail in a
20 lesser amount or] issues a more restrictive securing order in a less
21 [burdensome] restrictive form than fixed by the court in which the
22 conviction was entered.
23 § 21. Section 530.60 of the criminal procedure law, subdivision 1 as
24 amended by chapter 565 of the laws of 2011, subdivision 2 as added by
25 chapter 788 of the laws of 1981 and paragraph (a) of subdivision 2 as
26 amended by chapter 794 of the laws of 1986, is amended to read as
27 follows:
28 § 530.60 [Order of recognizance or bail; revocation thereof] Securing
29 order; modification thereof upon court's own action.
30 [1.] Whenever in the course of a criminal action or proceeding a
31 defendant is at liberty as a result of [an order of recognizance or
32 bail] a securing order issued pursuant to this chapter, and the court
33 considers it necessary to review such order, it may, and by a bench
34 warrant if necessary, require the defendant to appear before the court.
35 Upon such appearance, the court, for good cause shown, may revoke [the
36 order of recognizance or bail. If the defendant is entitled to recogni-
37 zance or bail as a matter of right, the court must issue another such
38 order. If he or she is not, the court may either issue such an order or
39 commit the defendant to the custody of the sheriff. Where the defendant
40 is committed to the custody of the sheriff and is held on a felony
41 complaint, a new period as provided in section 180.80 of this chapter
42 shall commence to run from the time of the defendant's commitment under
43 this subdivision] and modify the securing order, selecting the least
44 restrictive alternative that will reasonably assure court appearance. If
45 the most serious charge facing the defendant in the case before the
46 court or a pending case is a misdemeanor or felony other than that
47 enumerated in section 70.02 of the penal law or a class A felony defined
48 in the penal law, the court must release the defendant on personal
49 recognizance or set release with non-monetary conditions. Notwithstand-
50 ing the foregoing, the people may move at any time for consideration of
51 pretrial detention under article five hundred forty-five of this title
52 if the defendant's alleged actions render the defendant eligible under
53 for a hearing under that section.
54 [2. (a) Whenever in the course of a criminal action or proceeding a
55 defendant charged with the commission of a felony is at liberty as a
56 result of an order of recognizance or bail issued pursuant to this arti-]
 S. 7505--A 22 A. 9505—A

1 [cle it shall be grounds for revoking such order that the court finds
2 reasonable cause to believe the defendant committed one or more speci-
3 fied class A or violent felony offenses or intimidated a victim or
4 witness in violation of sections 215.15, 215.16 or 215.17 of the penal
5 law while at liberty. Before revoking an order of recognizance or bail
6 pursuant to this subdivision, the court must hold a hearing and shall
7 receive any relevant, admissible evidence not legally privileged. The
8 defendant may cross-examine witnesses and may present relevant, admissi-
9 ble evidence on his own behalf. Such hearing may be consolidated with,
10 and conducted at the same time as, a felony hearing conducted pursuant
11 to article one hundred eighty of this chapter. A transcript of testimony
12 taken before the grand jury upon presentation of the subsequent offense
13 shall be admissible as evidence during the hearing. The district attor-
14 ney may move to introduce grand jury testimony of a witness in lieu of
15 that witness' appearance at the hearing.]
16 [(b) Revocation of an order of recognizance or bail and commitment
17 pursuant to this subdivision shall be for the following periods, either:]
18 [(i) For a period not to exceed ninety days exclusive of any periods of
19 adjournment requested by the defendant; or]
20 [(ii) Until the charges contained within the accusatory instrument have
21 been reduced or dismissed such that no count remains which charges the
22 defendant with commission of a felony; or]
23 [(iii) Until reduction or dismissal of the charges contained within the
24 accusatory instrument charging the subsequent offense such that no count
25 remains which charges the defendant with commission of a class A or
26 violent felony offense.]
27 [Upon expiration of any of the three periods specified within this
28 paragraph, whichever is shortest, the court may grant or deny release
29 upon an order of bail or recognizance in accordance with the provisions
30 of this article. Upon conviction to an offense the provisions of article
31 five hundred thirty of this chapter shall apply.]
32 [(c) Notwithstanding the provisions of paragraph (a) of this subdivi-
33 sion a defendant, against whom a felony complaint has been filed which
34 charges the defendant with commission of a class A or violent felony
35 offense committed while he was at liberty as specified therein, may be
36 committed to the custody of the sheriff pending a revocation hearing for
37 a period not to exceed seventy-two hours. An additional period not to
38 exceed seventy-two hours may be granted by the court upon application of
39 the district attorney upon a showing of good cause or where the failure
40 to commence the hearing was due to the defendant's request or occurred
41 with his consent. Such good cause must consist of some compelling fact
42 or circumstance which precluded conducting the hearing within the
43 initial prescribed period.]
44 § 22. The criminal procedure law is amended by adding a new section
45 530.65 to read as follows:
46 § 530.65 Violation of a condition of release, remedies available.
47 When a principal is released under non-monetary conditions, the court,
48 upon motion by the people, may revoke and modify the securing order due
49 to violations of those release conditions. In determining whether to
50 revoke and modify the securing order, the court must consider the
51 nature, the willfulness, and the seriousness of the violation and may
52 only set a more restrictive condition or conditions or release if it
53 finds that such conditions are necessary to reasonably assure the
54 defendant's appearance in court. Notwithstanding the foregoing, the
55 people may move at any time for consideration of pretrial detention
56 under article five hundred forty-five of this title if the defendant's
 S. 7505--A 23 A. 9505--A

1 alleged actions render the defendant eligible under for a hearing under
2 that section.
3 § 23. Title P of part 3 of the criminal procedure law is amended by
4 adding a new article 545 to read as follows:
5 ARTICLE 545--PRETRIAL DETENTION
6 Section 545.10 Pretrial detention; when ordered.
7 545.20 Eligibility for a pretrial detention hearing.
8 545.30 Pretrial detention hearing.
9 545.40 Order for pretrial detention.
10 545.50 Reopening of pretrial hearing.
11 545.60 Length of detention for defendant held under a pretrial
12 detention order.
13 § 545.10 Pretrial detention; when ordered.
14 A county or superior court may order, before trial, the detention of a
15 defendant if the people seek detention of the defendant under section
16 545.20 of this article, and, after a hearing pursuant to section 545.30
17 of this article, the court finds clear and convincing evidence that the
18 defendant poses a high risk of flight before trial, or that defendant
19 poses a current threat to the physical safety of a reasonably identifi-
20 able person or persons, and that no conditions or combination of condi-
21 tions in the community will suffice to contain the aforesaid risk or
22 threat.
23 § 545.20 Eligibility for a pretrial detention hearing.
24 1. The people may make a motion with the court at any time seeking the
25 pretrial detention of a defendant:
26 (a) charged with offenses involving domestic violence, or crimes
27 involving serious violence or a class A felony defined in the penal law;
28 (b) charged with offenses involving witness intimidation under section
29 215.15, 215.16 or 215.17 of the penal law;
30 (c) charged with committing a new crime while in the community on
31 recognizance, or non-monetary-conditions, or bail; or
32 (d) who willfully failed to appear in court.
33 2. Upon such motion by the people, the defendant shall be committed to
34 the custody of the sheriff. If the person is at liberty, a warrant shall
35 issue and the defendant brought into custody of the sheriff.
36 § 545.30 Pretrial detention hearing.
37 1. A hearing shall be held within five working days from the people's
38 motion. At the hearing, the defendant shall have the right to be
39 represented by counsel, and, if financially unable to obtain counsel, to
40 have counsel assigned. The defendant shall be afforded an opportunity to
41 testify, to present witnesses, to cross-examine witnesses who appear at
42 the hearing, and to present information by proffer or otherwise. The
43 rules concerning the admissibility of evidence in criminal trials do not
44 apply to the presentation and consideration of information during the
45 hearing.
46 2. Discovery shall be afforded in accordance with pretrial hearings,
47 as set out in criminal procedure law section 240.44.
48 3. In hearings in cases for which there is no indictment, the people
49 shall establish probable cause that the eligible defendant committed the
50 charged offense. The people must establish by clear and convincing
51 evidence that defendant poses a high risk of flight or a current threat
52 of physical danger to a reasonably identifiable person or persons and
53 that no conditions or combination of conditions in the community will
54 suffice to contain the aforesaid risk or threat. There shall be a
55 rebuttable presumption, which the defendant may overcome by a preponder-
56 ance of the evidence, that no conditions or combination of conditions in
 S. 7505--A 24 A. 9505--A

1 the community will suffice to contain a current threat to the physical

2 safety of a reasonably identifiable person or persons if the court finds
3 probable cause that the defendant:
4 (a) committed a crime for which the defendant would be subject to a
5 term of life imprisonment;
6 (b) committed a crime involving domestic violence or a crime involving
7 serious violence or a class A felony offense defined in the penal law
8 while the defendant was in the community on recognizance, or non-mone-
9 tary conditions, or bail while charged with a crime enumerated in
10 section 70.02 of the penal law or a class A felony offense;
11 (c) threatened, injured, intimidated, or attempted to threaten, injure
12 or intimidate a prospective witness or juror in an criminal investi-
13 gation or judicial proceeding; or
14 (d) committed a crime involving domestic violence or a crime involving
15 serious violence or a class A felony offense defined in the penal law
16 while armed with a firearm.
17 4. In determining whether the defendant presents a high risk of flight
18 or a current threat of physical danger to a reasonably identifiable
19 person or persons and whether no conditions or combinations of condi-
20 tions in the community will suffice to contain such risk or threat, the
21 court may take into account the following information:
22 (a) the nature and circumstances of the charged offense;
23 (b) the weight of the evidence against the defendant, except that the
24 court may consider the admissibility of any evidence sought to be
25 excluded;
26 (c) the defendant's current and prior history of failure to appear in
27 court whether such failures to appear were willful;
28 (d) the nature and the credibility of the threat to the physical
29 danger of a reasonably identifiable person or persons, if applicable;
30 and
31 (e) whether, at the time of the current offense or arrest, the defend-
32 ant was on probation, parole, or on release pending trial, sentencing or
33 completion of a sentence in this state or other jurisdictions.
34 § 545.40 Order for pretrial detention.
35 In a pretrial detention order issued pursuant to section 545.10 of
36 this article, the court shall:
37 1. include written findings of fact and a written statement of the
38 reasons for the detention; and
39 2. direct that the eligible defendant be afforded reasonable opportu-
40 nity for private consultation with counsel.
41 § 545.50 Reopening of pretrial hearing.
42 A pretrial detention hearing may be opened, before or after issuance
43 of a pretrial detention order by the court, by motion of the people or
44 the defendant, at any time before trial, if the court finds either a
45 change of circumstances or that information exists that was not known to
46 the people or to the defendant at the time of the hearing, that has a
47 material bearing on the issue of whether defendant presents a high risk
48 of failure to appear or a current threat to the physical safety of a
49 reasonably identifiable person or persons and whether no conditions or
50 combination of conditions will suffice to contain such risk or threat.
51 § 545.60 Length of detention for defendant held under a pretrial
52 detention order.
53 1. If a pretrial detention order is issued, a defendant shall not
54 remain detained in jail for more than one hundred eighty days after the
55 return of the indictment, if applicable, until the start of trial. In
 S. 7505--A 25 A. 9505--A

1 cases where no indictment is required, the one hundred eighty days shall
2 run from the pretrial detention order.
3 2. (a) The time within which the trial of the case commences may be
4 extended for one or more additional periods not to exceed twenty days
5 each on the basis of a motion submitted by the people and approved by
6 the court. The additional period or periods of detention may be granted
7 only on the basis of good cause shown, and shall be granted only for the
8 additional time required to prepare for the trial of the person. Good
9 cause may include, but not be limited to, the unavailability of an
10 essential witness, the necessity for forensic analysis of evidence, the
11 ability to conduct a joint trial with a co-defendant or co-defendants,
12 severance of co-defendants which permits only one trial to commence
13 within the time period, complex or major investigations, scheduling
14 conflicts which arise shortly before the trial date, the inability to
15 proceed to trial because of action taken by or at the behest of the
16 defendant, the breakdown of a plea agreement on or immediately before
17 the trial date, and allowing reasonable time to prepare for a trial
18 after the circumstances giving rise to a tolling or extension of the one
19 hundred eighty day period no longer exists.
20 (b) In computing the one hundred eighty days from indictment, if
21 applicable, or the date of pretrial order, to commencement of trial, the
22 following periods shall be excluded:
23 (i) any period from the filing of the notice of appeal to the issuance
24 of the mandate in an interlocutory appeal;
25 (ii) any period attributable to any examination to determine the
26 defendant's sanity or lack thereof or his or her mental or physical
27 competency to stand trial;
28 (iii) any period attributable to the inability of the defendant to
29 participate in the defendant's defense because of mental incompetency or
30 physical incapacity; and
31 (iv) any period in which the defendant is otherwise unavailable for
32 trial.
33 3. If a trial has not commenced within one hundred eighty days from
34 indictment, if applicable, or pretrial detention order, as calculated
35 above, and the defendant remains in custody, the defendant shall be
36 released on recognizance or under non-monetary conditions of release
37 pending trial on the underlying charge, unless:
38 (a) the trial is in progress,
39 (b) the trial has been delayed by the timely filing of motions,
40 excluding motions for continuances;
41 (c) the trial has been delayed at the request of the defendant; or
42 (d) upon motion of the people, the court finds that a substantial and
43 unjustifiable risk to the physical safety of a reasonably identifiable
44 person would result from the defendant's release from custody, and that
45 no appropriate conditions for the defendant's release would reasonably
46 address that risk, and also finds that the failure to commence trial in
47 accordance with the time requirements set forth in this section was not
48 due to unreasonable delay by the people. If the court makes such a find-
49 ing, the court may set an additional period of time in which the defend-
50 ant's trial must commence.
51 § 24. Subsection (b) of section 6805 of the insurance law, as added by
52 chapter 181 of the laws of 2012, is amended to read as follows:
53 (b) A charitable bail organization shall:
54 (1) only deposit money as bail in the amount of [two] five thousand
55 dollars or less for a defendant charged with one or more [misdemeanors]
56 offenses as defined in subdivision one of section 10.00 of the penal
 S. 7505--A 26 A. 9505--A

1 law, provided, however, that such organization shall not execute as

2 surety any bond for any defendant;
3 (2) only deposit money as bail on behalf of a person who is financial-
4 ly unable to post bail, which may constitute a portion or the whole
5 amount of such bail; and
6 (3) [only deposit money as bail in one county in this state. Provided,
7 however, that a charitable bail organization whose principal place of
8 business is located within a city of a million or more may deposit money
9 as bail in the five counties comprising such city; and]
10 [(4)] not charge a premium or receive compensation for acting as a
11 charitable bail organization.
12 § 25. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
13 procedure law, as amended by chapter 258 of the laws of 2015, is amended
14 to read as follows:
15 (a) If at any time during the defendant's participation in the judi-
16 cial diversion program, the court has reasonable grounds to believe that
17 the defendant has violated a release condition or has failed to appear
18 before the court as requested, the court shall direct the defendant to
19 appear or issue a bench warrant to a police officer or an appropriate
20 peace officer directing him or her to take the defendant into custody
21 and bring the defendant before the court without unnecessary delay;
22 provided, however, that under no circumstances shall a defendant who
23 requires treatment for opioid abuse or dependence be deemed to have
24 violated a release condition on the basis of his or her participation in
25 medically prescribed drug treatments under the care of a health care
26 professional licensed or certified under title eight of the education
27 law, acting within his or her lawful scope of practice. The provisions
28 of [subdivision one of] section 530.60 of this chapter relating to
29 [revocation of recognizance or bail] issuance of securing orders shall
30 apply to such proceedings under this subdivision.
31 § 26. Subdivision 3 of section 620.50 of the criminal procedure law is
32 amended to read as follows:
33 3. A material witness order must be executed as follows:
34 (a) If the bail is posted and approved by the court, the witness
35 must[, as provided in subdivision three of section 510.40,] be released
36 and be permitted to remain at liberty; provided that, where the bail is
37 posted by a person other than the witness himself, he may not be so
38 released except upon his signed written consent thereto;
39 (b) If the bail is not posted, or if though posted it is not approved
40 by the court, the witness must[, as provided in subdivision three of
41 section 510.40,] be committed to the custody of the sheriff.
42 § 27. This act shall take effect November 1, 2019.