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A09955 Summary:

BILL NOA09955
 
SAME ASNo Same As
 
SPONSORQuart
 
COSPNSRLentol, Ortiz, Dickens, Perry, Rivera, D'Urso, Sepulveda, Jaffee, Hyndman, Lupardo, Mosley, Dilan, Kim, Gottfried, Hevesi, Jean-Pierre
 
MLTSPNSR
 
Amd CP L, generally
 
Relates to the issuance of securing orders and release on non-monetary conditions; makes conforming changes.
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A09955 Actions:

BILL NOA09955
 
02/28/2018referred to codes
03/05/2018reported referred to ways and means
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A09955 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9955
 
SPONSOR: Quart
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to the issuance of securing orders and in relation to making conforming changes   PURPOSE: New York's antiquated cash bail system has been fixed in law without major amendment for nearly fifty years. This legislation would move our state toward a more intelligent, individualized system of pre-trial release, monitoring and, when necessary, detention. The bill is designed to end the current, reflexive overreliance on monetary bail, which each year results in the unnecessary and expensive pre-trial jailing of thou- sands of persons simply because they cannot afford a modest sum as collateral.   SUMMARY OF PROVISIONS: The bill would, in most instances, eliminate the option for a court to impose a monetary bail requirement at arraignment or thereafter when a defendant is charged with a traffic infraction, violation, misdemeanor or non-violent felony. Rather than rely almost exclusively on money bail, courts would be required to consider, in ascending order, release on recognizance (except in certain higher level felony cases), release on non-monetary conditions, monitoring by a pretrial services agency, travel restrictions, and electronic location monitoring. The court would be required to select the least restrictive alternative and conditions that would reasonably assure the defendant's appearance in court when required. The bill would retain a class of charges for which the court would be required to select the least restrictive alternative and conditions designed to assure court attendance, but for which a monetary bail option would be retained. These include a felony set forth in section § 70.02 of the Penal Law (other than burglary in the second degree (PL § 140.25, subd.2), robbery in the second degree (PL § 160.10, subd. 2) and falsely reporting an incident in the second degree (PL § 240.55)). Monetary bail would also be authorized, along with a remand without bail (as available under current law, see CPL § 530.20 (2)), when the charge is a felony sex offense, a felony terrorism crime defined in PL § 490.10, § 490.15, § 490.30, § 490.35, § 490.37, § 490.40, § 490.45, § 490,47, § 490.50 or § 490.55, a class A felony, a felony offense of witness tampering, a felony involving an intent to cause serious phys- ical injury or death and causing such result, or a charge which makes the person eligible for sentencing as a persistent violent felony offen- der. Current law sets forth nine potential methods by which monetary bail may be authorized. A judge setting bail may select one, two or more such options. CPL § 520.10 (2). (Those most commonly ordered are cash and an alternative commercial bond.) The bill provides that when monetary bail is set, the judge shall select three or more such options, one of which should be a partially secured or unsecured bond. The issue for consideration by the court, as under current law, would be risk of flight. The court would impose the "least restrictive" alterna- tive and conditions that would reasonably assure the defendant's return to court for further proceedings. Certain statutory factors in current law that are not clearly relevant to risk of flight (and are subject to discriminatory application) would be removed (e.g., character, habits, reputation). Non-monetary condi- tions imposed by the court would be "reasonable" and, as noted, designed to assure the principal's return to court. The court would explain on the record or in writing the reasons for the pre-trial alternative chosen and the conditions imposed. The state Office of Court Administration would be required to certify one or more pretrial services agencies in each county in the state. In most jurisdictions, this would include the county probation department. Counties could contract with private, non-profit organizations to provide such services, and could contract among themselves for shared services. A court would have to issue certain findings before determining that monitoring by a pretrial services agency would be the least restrictive alternative necessary to assure a return to court. Electronic location monitoring would be possible as an additional monitoring method when "no other realistic conditions (would) suffice to reasonably assure the defendant's return to court." Electronic location monitoring would be limited to 60 days, with renewal possible after notice and an opportu- nity to be heard. No profit making entity could provide electronic location monitoring services or be a pretrial services agency. No risk assessment instrument would be required or recognized for use in the criminal courts. Any such instrument would have to be empirically validated and regularly revalidated. The underlying studies and data used in the validation process would have to be publicly accessible. The defendant would be able to obtain a copy of any completed instrument used with the defendant. The public would be able to obtain copies of any such forms regularly used in the county (along with related informa- tion, such as instructions). The law would specifically state that no such instrument may be discri- minatory or result in disparities based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status, disability, or any other constitu- tionally protected class. If a pre-trial defendant is held in custody, a rehearing within five business days would be scheduled by the court. At rehearings, the prose- cution would have to demonstrate that no lesser restriction would reasonably assure a detained defendant's return to court. The bill would amend CPL § 240.44 to provide that disclosure ("discovery") in advance of such pre-trial hearings would be provided before a witness testifies, rather than at the conclusion of direct examination. The bill would also amend CPL § 510.10 concerning bench warrants. After a failure to appear in court (except when the person is charged with a new crime while at liberty), absent proof that the failure to appear was willful, the court (or county pretrial agency) would give forty-eight hours' notice, to afford the person an opportunity to voluntarily appear. The court or pretrial agency would be authorized to provide notice of court appearances by text, email, telephone or mail. Certain post-arraignment events would render even persons charged with lower-level offenses eligible for a monetary bail order and thus pretrial detention. These include a persistent willful failure to appear in court; violation of an order of protection (see PL § 215.51   b,   c,   d); charged with a registrable sex offense and alleged to have commit- ted another registrable sex offense; alleged to have intimidated a witness or victim, in violation of PL § 215.15, § 215.16 or § 215.17, while at liberty; or charged with a felony, and alleged to have commit- ted a felony while at liberty.   JUSTIFICATION: Every year, thousands of New Yorkers are incarcerated awaiting trial simply because they cannot afford to pay bail, a situation that is unfair to families and the less-financially secure among us. The over- whelming majority of persons issued a summons or placed under arrest return to court when required for all further proceedings. Poor and working class New Yorkers are nonetheless incarcerated by the thousands for days, weeks, months -- sometimes years -before trial, or until a plea agreement is reached, often ultimately involving no more than a sentence of "time served." People who are subject to pre-trial detention experience difficulties and, often, life-altering changes in employment, education, relation- ships, child rearing and custody, housing, and immigration status. Addi- tionally, many studies show no correlation between being able to afford bail and returning to court and/ or re-offending. This bill would directly impact the widespread overreliance on cash bail in New York. It re-emphasizes the requirement that every person unable to afford counsel be represented at arraignment. It establishes a presumption of release, on recognizance in most cases or under non-mone- tary conditions, with bail and commitment to the sheriff available in limited, specified cases and circumstances. It provides that if a defendant is not released on recognizance or under non-monetary condi- tions at arraignment, an evidentiary hearing would be held within five business days to determine whether there is clear and convincing proof of a significant flight risk. Thereafter, if the defendant remained in custody, defense counsel could trigger additional re-hearings for consideration of release. This legislation would provide clear guidance to the courts regarding pre-trial recognizance decisions, while allowing judges to be responsive to changes and new information that may arise during the pre-trial peri- od. Most importantly, the bill would address an overreliance on finan- cial resources that pervades our current system, and help reassure New Yorkers that, in this state, justice is not for sale.   LEGISLATIVE HISTORY: This is new legislation.   FISCAL IMPLICATIONS: There are no required fiscal costs. Significant savings for local governments and the state can be expected, through a reduction of unnec- essary pre-trial detention and increased use of alternatives to incar- ceration.   EFFECTIVE DATE: Thirty days after it shall have become a law.
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A09955 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9955
 
                   IN ASSEMBLY
 
                                    February 28, 2018
                                       ___________
 
        Introduced  by  M.  of A. QUART, LENTOL -- read once and referred to the
          Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to the  issuance
          of securing orders and in relation to making conforming changes
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivisions 1, 2, 4, 5, 6, 7, 8 and 9 of section 500.10 of
     2  the criminal procedure law are amended and  a  new  subdivision  3-a  is
     3  added to read as follows:
     4    1.  "Principal"  means a defendant in a criminal action or proceeding,
     5  or a person adjudged a material witness therein, or any other person  so
     6  involved  therein  that  [he]  the  principal may by law be compelled to
     7  appear before a court for the purpose  of  having  such  court  exercise
     8  control  over  [his]  the principal's person to secure [his] the princi-
     9  pal's future attendance at the action or proceeding when  required,  and
    10  who  in  fact  either  is  before the court for such purpose or has been
    11  before it and been subjected to such control.
    12    2. "Release on own recognizance." A  court  releases  a  principal  on
    13  [his]  the  principal's  own  recognizance when, having acquired control
    14  over [his] the principal's person, it permits [him] the principal to  be
    15  at  liberty  during  the  pendency  of the criminal action or proceeding
    16  involved upon condition that [he]  the  principal  will  appear  thereat
    17  whenever  [his]  the  principal's attendance may be required and will at
    18  all times render [himself] the principal  amenable  to  the  orders  and
    19  processes of the court.
    20    3-a. "Release under non-monetary conditions." A court releases a prin-
    21  cipal under non-monetary conditions when, having acquired control over a
    22  person, it authorizes the person to be at liberty during the pendency of
    23  the  criminal  action or proceeding involved under conditions ordered by
    24  the court, which shall be the least  restrictive  conditions  that  will
    25  reasonably  assure  the principal's return to court. Such conditions may
    26  include, among other  conditions  reasonable  under  the  circumstances:
    27  that the principal be in contact with a pretrial services agency serving
    28  principals in that county; that the principal abide by reasonable, spec-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14638-11-8

        A. 9955                             2

     1  ified  restrictions  on  travel that are reasonably related to an actual
     2  risk of intentional flight from the  jurisdiction;  that  the  principal
     3  refrain from possessing a firearm, destructive device or other dangerous
     4  weapon;  that,  when it is shown pursuant to subdivision four of section
     5  510.45 of this title that no other realistic monetary condition  or  set
     6  of  non-monetary  conditions  will  suffice  to  reasonably  assure  the
     7  person's return to court, the person be placed  in  reasonable  pretrial
     8  supervision  with  a pretrial services agency serving principals in that
     9  county; that, when it is shown pursuant to paragraph (a) of  subdivision
    10  four  of  section 510.40 of this title that no other realistic non-mone-
    11  tary condition or set of non-monetary conditions will suffice to reason-
    12  ably assure the principal's return to court, the principal's location be
    13  monitored with an approved electronic monitoring device,  in  accordance
    14  with such subdivision four of section 510.40 of this title.  A principal
    15  shall  not  be  required  to  pay for any part of the cost of release on
    16  non-monetary conditions.
    17    4. "Commit to the custody of the sheriff." A court commits a principal
    18  to the custody of the sheriff when, having acquired control  over  [his]
    19  the principal's person, it orders that [he] the principal be confined in
    20  the custody of the sheriff during the pendency of the criminal action or
    21  proceeding involved.
    22    5.  "Securing  order" means an order of a court committing a principal
    23  to the custody of the sheriff[,] or fixing bail,  where  authorized,  or
    24  releasing [him on his] the principal on the principal's own recognizance
    25  or releasing the principal under non-monetary conditions.
    26    6.  "Order of recognizance or bail" means a securing order releasing a
    27  principal on [his] the principal's own recognizance or  under  non-mone-
    28  tary conditions or, where authorized, fixing bail.
    29    7.  "Application  for  recognizance or bail" means an application by a
    30  principal that the court, instead of committing [him] the  principal  to
    31  or  retaining  [him] the principal in the custody of the sheriff, either
    32  release [him on his own] the principal on the principal's  own  recogni-
    33  zance [or], release under non-monetary conditions, or, where authorized,
    34  fix bail.
    35    8.  "Post  bail" means to deposit bail in the amount and form fixed by
    36  the court, with the court or with some other authorized  public  servant
    37  or agency.
    38    9. "Bail" means cash bail [or], a bail bond or money paid with a cred-
    39  it card.
    40    § 2. Section 510.10 of the criminal procedure law, as amended by chap-
    41  ter 459 of the laws of 1984, is amended to read as follows:
    42  § 510.10 Securing order; when required; alternatives available; standard
    43             to be applied.
    44    1.  When  a  principal,  whose  future  court attendance at a criminal
    45  action or proceeding is or may be required, [initially] comes under  the
    46  control  of  a  court,  such court [must] shall, in accordance with this
    47  title, by a securing order[, either]  release  [him]  the  principal  on
    48  [his]  the  principal's  own  recognizance,  release the principal under
    49  non-monetary conditions, or, where authorized, fix bail or commit  [him]
    50  the  principal to the custody of the sheriff.  In all such cases, except
    51  where another type of securing order is shown to be required by law, the
    52  court shall release the principal pending trial on the  principal's  own
    53  recognizance,  unless it is demonstrated and the court makes an individ-
    54  ualized determination that the principal is a significant risk of inten-
    55  tional flight to avoid prosecution. If such a finding is made, the court

        A. 9955                             3
 
     1  must select the least restrictive alternative and  condition  or  condi-
     2  tions that will reasonably assure the principal's return to court.
     3    2.  A  principal  is  entitled to representation by counsel under this
     4  chapter in preparing an application for release, when a  securing  order
     5  is  being  considered  and  when  a securing order is being reviewed for
     6  modification, revocation or termination. If the principal is financially
     7  unable to obtain counsel, counsel shall be assigned to the principal.
     8    3. In cases where the most serious offense with  which  the  defendant
     9  stands  charged  in  the  case  before the court or a pending case is an
    10  offense that is not a class A felony defined in the penal law or a felo-
    11  ny enumerated in section 70.02 of the penal law (other than burglary  in
    12  the second degree as defined in subdivision two of section 140.25 of the
    13  penal  law or robbery in the second degree as defined in subdivision one
    14  of section 160.10 of such law or  reporting  a  false  incident  in  the
    15  second degree as defined in section 240.55 of such law), the court shall
    16  release the principal pending trial on the principal's own recognizance,
    17  unless  the  court finds on the record or in writing that release on the
    18  principal's own recognizance will not reasonably assure the  principal's
    19  return  to court. In such instances, the court shall release the princi-
    20  pal under  non-monetary  conditions,  selecting  the  least  restrictive
    21  alternative  and  conditions that will reasonably assure the principal's
    22  return to court.  The court shall explain its choice of alternative  and
    23  conditions on the record or in writing.
    24    4.  Except  as  provided in subdivision five of this section, in cases
    25  where an offense with which the defendant stands  charged  in  the  case
    26  before  the  court  or  a pending case is a felony enumerated in section
    27  70.02 of the penal law (except burglary in the second degree as  defined
    28  in  subdivision two of section 140.25 of the penal law or robbery in the
    29  second degree as defined in subdivision one of section  160.10  of  such
    30  law  or  reporting  a  false incident in the second degree as defined in
    31  section 240.55 of such law), the court, unless otherwise  prohibited  by
    32  law,  shall  release  the principal pending trial on the principal's own
    33  recognizance or under non-monetary conditions,  or  fix  bail.  In  such
    34  instances,  the court shall select the least restrictive alternative and
    35  conditions that will reasonably assure the principal's return to  court.
    36  The  court shall explain its choice of alternative and conditions on the
    37  record or in writing.
    38    5. In cases where an offense with which the defendant  stands  charged
    39  in  the  case before the court or a pending case is a felony sex offense
    40  as defined in section 70.80 of the penal law, a felony terrorism offense
    41  under section 490.10, 490.15, 490.30, 490.35,  490.37,  490.40,  490.45,
    42  490.47,  490.50  or  490.55  of the penal law,  a class A felony offense
    43  defined in the penal law, a felony offense of witness intimidation under
    44  section 215.15, 215.16, or 215.17 of the penal  law,  a  felony  offense
    45  where  a required element thereof is an intent to cause serious physical
    46  injury or death to another person and causing such injury  or  death  to
    47  such  person or a third person, or a felony for when the defendant would
    48  be eligible for sentencing under section 70.08 of  the  penal  law,  the
    49  court,  unless  otherwise prohibited by law, shall release the principal
    50  pending trial under non-monetary conditions, or fix bail, or commit  the
    51  principal  to  the custody of the sheriff.  In such instances, the court
    52  shall select the least restrictive alternative and conditions that  will
    53  reasonably  assure  the  principal's  return  to  court. The court shall
    54  explain its choice of alternative and conditions on  the  record  or  in
    55  writing.

        A. 9955                             4
 
     1    6.  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 order which
     6  committed the principal to the custody of the sheriff, the  court  shall
     7  give  written  notification  to the sheriff of such revocation or termi-
     8  nation of the securing order.
     9    § 3. 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-
    12               nation thereof in general] a change in securing order.
    13    1.  Upon any occasion when a court [is required to issue] has issued a
    14  securing order with respect to a principal[, or at any time when a]  and
    15  the  principal  is confined in the custody of the sheriff as a result of
    16  the securing order or a previously issued securing order, [he] the prin-
    17  cipal may make an application for recognizance, release under  non-mone-
    18  tary conditions or bail.
    19    2.   (a) The principal is entitled to representation by counsel in the
    20  making and presentation of such application. If the principal is  finan-
    21  cially  unable to obtain counsel, counsel shall be assigned to the prin-
    22  cipal.
    23    (b) Upon such application, the principal must be accorded an  opportu-
    24  nity  to  be  heard,  present  evidence  and to contend that an order of
    25  recognizance, release under non-monetary conditions  or,  where  author-
    26  ized,  bail  must or should issue, that the court should release [him on
    27  his] the principal on the principal's own recognizance or under non-mon-
    28  etary conditions rather than fix bail, and that if  bail  is  authorized
    29  and fixed it should be in a suggested amount and form.
    30    §  4.  The  criminal  procedure law is amended by adding a new section
    31  510.25 to read as follows:
    32  § 510.25 Rehearing after five days in custody.
    33    In addition to any other available pre-conviction motion or procedure,
    34  a principal for whom bail is  authorized  and  was  fixed,  or  who  was
    35  remanded  to  the  custody  of  the  sheriff but is legally eligible for
    36  release, and who is in custody five days  thereafter  shall  be  brought
    37  before  the  court the next business day for a rehearing on the securing
    38  order. The court shall consider the matter in  accordance  with  section
    39  510.10  of  this  article, de novo, including the principal's individual
    40  financial circumstances, hear from the defense and, if they  so  desire,
    41  the people, consider relevant testimony and cross-examination presented,
    42  consider  any  relevant, admissible evidence not legally privileged, and
    43  order a new securing order in accordance with the principles and  proce-
    44  dures  in  this  article.  This  process  shall continue with additional
    45  rehearings, held promptly on reasonable written request of defense coun-
    46  sel, made on notice to the people.
    47    § 5. Section 510.30 of the criminal procedure law, subparagraph (v) of
    48  paragraph (a) of subdivision 2 as amended by chapter 920 of the laws  of
    49  1982,  subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered
    50  by chapter 447 of the laws of 1977,  subparagraph  (vii)  as  added  and
    51  subparagraphs  (viii)  and  (ix)  of  paragraph  (a) of subdivision 2 as
    52  renumbered by section 1 of part D of chapter 491 of the  laws  of  2012,
    53  and  subdivision  3  as  added  by  chapter  788 of the laws of 1981, is
    54  amended to read as follows:
    55  § 510.30 Application for [recognizance or bail] securing order; rules of
    56               law and criteria controlling determination.

        A. 9955                             5
 
     1    1. [Determinations of applications for recognizance or bail are not in
     2  all cases discretionary but are subject to rules, prescribed in  article
     3  five  hundred  thirty  and  other provisions of law relating to specific
     4  kinds of criminal actions and proceedings, providing (a)  that  in  some
     5  circumstances  such  an  application must as a matter of law be granted,
     6  (b) that in others it must as a matter of law be denied and the  princi-
     7  pal committed to or retained in the custody of the sheriff, and (c) that
     8  in  others  the  granting  or  denial  thereof  is  a matter of judicial
     9  discretion.
    10    2. To the extent that the issuance of an order of recognizance or bail
    11  and the terms thereof are matters of discretion rather than of  law,  an
    12  application  is  determined  on  the  basis of the following factors and
    13  criteria:
    14    (a)] With respect to any principal, the court  in  all  cases,  unless
    15  otherwise provided by law, must [consider the] impose the least restric-
    16  tive  kind  and  degree  of  control or restriction that is necessary to
    17  secure [his court attendance]  the  principal's  return  to  court  when
    18  required.  In  determining  that matter, the court must, on the basis of
    19  available information, consider and take into account[:
    20    (i) The principal's character, reputation, habits  and  mental  condi-
    21  tion;
    22    (ii) His employment and financial resources; and
    23    (iii)  His  family  ties and the length of his residence if any in the
    24  community; and
    25    (iv) His] information about the principal  that  is  relevant  to  the
    26  principal's return to court, including:
    27    (a) The principal's activities and history;
    28    (b) If the principal is a defendant, the charges facing the principal;
    29    (c)  The  principal's  criminal conviction record if any provided that
    30  the court must also consider and take into account  the  time  that  has
    31  elapsed  since the occurrence of such crime or crimes and the age of the
    32  principal at the time of the occurrence of such crime or crimes; [and
    33    (v) His] (d) The principal's record  of  previous  adjudication  as  a
    34  juvenile delinquent, as retained pursuant to section 354.2 of the family
    35  court act, or, of pending cases where fingerprints are retained pursuant
    36  to  section  306.1  of such act, or a youthful offender, if any provided
    37  that the court must also consider and take into account  the  time  that
    38  has  elapsed since the occurrence of such delinquency or youthful offen-
    39  der conduct and the age of the principal at the time of such delinquency
    40  or youthful offender conduct; [and
    41    (vi) His] (e) The principal's previous record [if any in responding to
    42  court appearances when required or] with respect to  intentional  flight
    43  to avoid criminal prosecution; [and
    44    (vii)]   (f)   If  monetary  bail  is  authorized,  according  to  the
    45  restrictions set forth in this title, the principal's individual  finan-
    46  cial circumstances;
    47    (g)  Where  the  principal is charged with a crime or crimes against a
    48  member or members of the same  family  or  household  as  that  term  is
    49  defined  in subdivision one of section 530.11 of this title, the follow-
    50  ing factors:
    51    [(A)] (i) any violation by the principal of  an  order  of  protection
    52  issued  by  any  court  for the protection of a member or members of the
    53  same family or household as that term is defined in subdivision  one  of
    54  section 530.11 of this title, whether or not such order of protection is
    55  currently in effect; and

        A. 9955                             6
 
     1    [(B)]  (ii) the principal's history of use or possession of a firearm;
     2  and
     3    [(viii)]  (h) If [he] the principal is a defendant, [the weight of the
     4  evidence against him in the pending criminal action and any other factor
     5  indicating probability or improbability of conviction; or,] in the  case
     6  of  an  application  for [bail or recognizance] a securing order pending
     7  appeal, the merit or lack of merit of the appeal[; and
     8    (ix) If he is a defendant, the sentence  which  may  be  or  has  been
     9  imposed upon conviction].
    10    [(b)]  2.  Where  the  principal is a defendant-appellant in a pending
    11  appeal from a judgment of conviction, the court must also  consider  the
    12  likelihood  of  ultimate  reversal of the judgment. A determination that
    13  the appeal is palpably without  merit  alone  justifies,  but  does  not
    14  require,  a  denial  of the application, regardless of any determination
    15  made with respect to the factors specified in [paragraph  (a)]  subdivi-
    16  sion one of this section.
    17    3.  When  bail  or recognizance is ordered, the court shall inform the
    18  principal, if [he] the principal is a defendant charged with the commis-
    19  sion of a felony, that the release is conditional and that the court may
    20  revoke the order of release and may be authorized to commit the  princi-
    21  pal  to  the custody of the sheriff in accordance with the provisions of
    22  subdivision two of section 530.60 of this chapter if [he] the  principal
    23  commits a subsequent felony while at liberty upon such order.
    24    §  6.  Section 510.40 of the criminal procedure law is amended to read
    25  as follows:
    26  § 510.40  [Application for recognizance or bail; determination  thereof,
    27               form of securing order and execution thereof] Court notifi-
    28               cation to principal of conditions of release and of alleged
    29               violations of conditions of release.
    30    1.    [An application for recognizance or bail must be determined by a
    31  securing order which either:
    32    (a)  Grants the application and releases  the  principal  on  his  own
    33  recognizance; or
    34    (b)  Grants the application and fixes bail; or
    35    (c)    Denies the application and commits the principal to, or retains
    36  him in, the custody of the sheriff.
    37    2.] Upon ordering that a principal be released on  [his]  the  princi-
    38  pal's  own  recognizance, or released under non-monetary conditions, or,
    39  if bail has been fixed, upon the posting of bail, the court must  direct
    40  [him]  the  principal  to  appear  in  the criminal action or proceeding
    41  involved whenever [his] the principal's attendance may be  required  and
    42  to [render himself] be at all times amenable to the orders and processes
    43  of  the court.  If such principal is in the custody of the sheriff or at
    44  liberty upon bail at the time of the order, the court must  direct  that
    45  [he]  the  principal be discharged from such custody or, as the case may
    46  be, that [his] the principal's bail be exonerated.
    47    [3.] 2. Upon the issuance of an order fixing bail,  where  authorized,
    48  and  upon the posting thereof, the court must examine the bail to deter-
    49  mine whether it complies with the order.  If it does, the court must, in
    50  the absence of some factor or circumstance  which  in  law  requires  or
    51  authorizes  disapproval  thereof,  approve  the  bail  and  must issue a
    52  certificate of release, authorizing the principal to be at liberty, and,
    53  if [he] the principal is in the custody of  the  sheriff  at  the  time,
    54  directing  the  sheriff  to discharge [him] the principal therefrom.  If
    55  the bail fixed is not posted, or is not approved after being posted, the
    56  court must order that the principal be committed to the custody  of  the

        A. 9955                             7

     1  sheriff.  In the event of any such non-approval, the court shall explain
     2  promptly in writing the reasons therefor.
     3    3.  Non-monetary  conditions  of  release  shall be individualized and
     4  established in writing by the court. At future  court  appearances,  the
     5  court shall consider a lessening of conditions or modification of condi-
     6  tions to a less burdensome form based on the principal's compliance with
     7  such  conditions of release. In the event of alleged non-compliance with
     8  the conditions of release in an  important  respect,  pursuant  to  this
     9  subdivision,  additional  conditions may be imposed by the court, on the
    10  record or in writing, only after notice of the facts  and  circumstances
    11  of  such  alleged  non-compliance,  reasonable  under the circumstances,
    12  affording the principal and the principal's attorney and the  people  an
    13  opportunity to present relevant, admissible evidence, relevant witnesses
    14  and  to  cross-examine  witnesses, and a finding by clear and convincing
    15  evidence that the principal violated a condition of release in an impor-
    16  tant respect.   Following such a  finding,  in  determining  whether  to
    17  impose additional conditions for non-compliance, the court shall consid-
    18  er  and  may select conditions consistent with the court's obligation to
    19  impose the least restrictive condition or conditions that  will  reason-
    20  ably  assure the defendant's return to court. The court shall explain on
    21  the record or in writing the reasons for its determination and  for  any
    22  changes to the conditions imposed.
    23    4.  (a) Electronic monitoring of a principal's location may be ordered
    24  only if the court finds, after notice, an opportunity to be heard and an
    25  individualized determination explained on the record or in writing, that
    26  no other realistic non-monetary condition or set of non-monetary  condi-
    27  tions will suffice to reasonably assure a principal's return to court.
    28    (b)  The  specific  method of electronic monitoring of the principal's
    29  location must be approved by the court.  It must be the  least  restric-
    30  tive  procedure  and  method that will reasonably assure the principal's
    31  return to court, and unobtrusive to the greatest extent practicable.
    32    (c) Electronic monitoring of  the  location  of  a  principal  may  be
    33  conducted only by a public entity under the supervision and control of a
    34  county  or  municipality  or  a  non-profit entity under contract to the
    35  county, municipality or the state. A county  or  municipality  shall  be
    36  authorized  to enter into a contract with another county or municipality
    37  in the state to monitor  principals  under  non-monetary  conditions  of
    38  release  in its county, but counties, municipalities and the state shall
    39  not contract with any private for-profit entity for such purposes.
    40    (d) Electronic monitoring of a principal's location may be for a maxi-
    41  mum period of sixty days, and may be  renewed  for  such  period,  after
    42  notice,  an opportunity to be heard and a de novo, individualized deter-
    43  mination in accordance with this subdivision, which shall  be  explained
    44  on the record or in writing.
    45    5. If a principal is released under non-monetary conditions, the court
    46  shall,  on the record and in an individualized written document provided
    47  to the principal, notify the principal, in plain language and  a  manner
    48  sufficiently clear and specific:
    49    (a) of any conditions to which the principal is subject, to serve as a
    50  guide for the principal's conduct; and
    51    (b)  that  the possible consequences for violation of such a condition
    52  may include revocation of the securing order and the ordering of a  more
    53  restrictive securing order.
    54    §  7.  The  criminal  procedure law is amended by adding a new section
    55  510.43 to read as follows:
    56  § 510.43 Court appearances: additional notifications.

        A. 9955                             8
 
     1    The court or, upon  direction  of  the  court,  a  certified  pretrial
     2  services agency, shall notify all principals released under non-monetary
     3  conditions  and  on  recognizance of all court appearances in advance by
     4  text message, telephone call, electronic mail or first class  mail.  The
     5  chief  administrator of the courts shall, pursuant to subdivision one of
     6  section 10.40 of this chapter, develop a form which shall be offered  to
     7  the  principal at court appearances. On such form, which upon completion
     8  shall be retained in the court file, the principal may select  one  such
     9  preferred manner of notice.
    10    §  8.  The  criminal  procedure law is amended by adding a new section
    11  510.45 to read as follows:
    12  § 510.45 Pretrial services agencies.
    13    1. The office of court  administration  shall  certify  and  regularly
    14  review  for  recertification  one  or more pretrial services agencies in
    15  each county to monitor principals  released  under  non-monetary  condi-
    16  tions.  Such office shall maintain a listing on its public website iden-
    17  tifying  by  county  each  pretrial  services agency so certified in the
    18  state.
    19    2. Every such agency shall be a public entity  under  the  supervision
    20  and  control  of  a  county or municipality or a non-profit entity under
    21  contract to the county, municipality or the state. A county  or  munici-
    22  pality  shall be authorized to enter into a contract with another county
    23  or municipality in the state to monitor  principals  under  non-monetary
    24  conditions  of  release  in its county, but counties, municipalities and
    25  the state shall not contract with any private for-profit entity for such
    26  purposes.
    27    3. (a) Any questionnaire, instrument or tool used with a principal  in
    28  the  process  of  considering  or  determining  the principal's possible
    29  release on recognizance, release under  non-monetary  conditions  or  on
    30  bail,  or  used with a principal in the process of considering or deter-
    31  mining a condition or conditions of release or monitoring by a  pretrial
    32  services  agency,  shall be promptly made available to the principal and
    33  the principal's counsel upon written request.  Any such blank form ques-
    34  tionnaire, instrument or tool regularly used  in  the  county  for  such
    35  purpose  or  a  related  purpose  shall  be made available to any person
    36  promptly upon request.
    37    (b) Any such questionnaire, instrument or tool shall be:
    38    (i) free from discriminatory and disparate  impact  on  detention  and
    39  other outcomes based on age, race, creed, color, national origin, sexual
    40  orientation,  gender identity or expression, military status, sex, mari-
    41  tal status, disability, or any other constitutionally  protected  class,
    42  regarding the use thereof; and
    43    (ii)  empirically validated and regularly revalidated, with such vali-
    44  dation and revalidation studies and all underlying data, except personal
    45  identifying information  for  any  defendant,  publicly  available  upon
    46  request.
    47    4.  Monitoring by a pre-trial services agency may be ordered as a non-
    48  monetary condition pursuant to this title only if the court finds, after
    49  notice, an opportunity to be heard and an  individualized  determination
    50  explained on the record or in writing, that no other realistic non-mone-
    51  tary condition or set of non-monetary conditions will suffice to reason-
    52  ably assure the principal's return to court.
    53    5.  Each  pretrial  service  agency  certified  by the office of court
    54  administration pursuant to this section shall at the end  of  each  year
    55  prepare  and  file  with  such office an annual report, which the office
    56  shall compile, publish on its website and make available upon request to

        A. 9955                             9
 
     1  members of the public. Such reports shall not include any personal iden-
     2  tifying information for any individual defendants. Each such report,  in
     3  addition  to  other relevant information, shall set forth, disaggregated
     4  by each county served:
     5    (a) the number of defendants monitored by the agency;
     6    (b)  the  length of time (in months) each such person was monitored by
     7  the agency prior to acquittal, dismissal, release on recognizance, revo-
     8  cation of release on conditions, and sentencing;
     9    (c) the race, ethnicity, age and sex of each person monitored;
    10    (d) the crimes with which each person monitored was charged;
    11    (e) the number of persons monitored for whom release  conditions  were
    12  modified  by the court, describing generally for each person or group of
    13  persons the type and nature of the  condition  or  conditions  added  or
    14  removed;
    15    (f)  the number of persons monitored for whom release under conditions
    16  was revoked by the court, and the basis for such revocations; and
    17    (g) the court disposition in each monitoring case, including  sentenc-
    18  ing information.
    19    §  9.  Section 510.50 of the criminal procedure law is amended to read
    20  as follows:
    21  § 510.50 Enforcement of securing order.
    22    1. When the attendance of a principal confined in the custody  of  the
    23  sheriff is required at the criminal action or proceeding at a particular
    24  time  and  place,  the court may compel such attendance by directing the
    25  sheriff to produce [him] the principal at such time and place.   If  the
    26  principal  is  at  liberty  on [his] the principal's own recognizance or
    27  non-monetary conditions or on bail, [his] the  principal's    attendance
    28  may  be achieved or compelled by various methods, including notification
    29  and the issuance of a bench warrant, prescribed  by  law  in  provisions
    30  governing  such matters with respect to the particular kind of action or
    31  proceeding involved.
    32    2. Except when the principal is charged with  a  new  crime  while  at
    33  liberty, absent relevant, admissible evidence demonstrating that a prin-
    34  cipal's  failure to appear for a scheduled court appearance was willful,
    35  the court, prior to issuing a bench warrant for a failure to appear  for
    36  a  scheduled  court appearance, shall provide at least forty-eight hours
    37  notice to the principal or the principal's counsel that the principal is
    38  required to appear, in order to give the  principal  an  opportunity  to
    39  appear voluntarily.
    40    § 10. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
    41  procedure law, as amended by chapter 784 of the laws of 1972, is amended
    42  to read as follows:
    43    (b) The court [may] shall direct that the bail be posted in any one of
    44  [two]  three  or  more of the forms specified in subdivision one of this
    45  section, designated in the  alternative,  and  may  designate  different
    46  amounts varying with the forms[;], except that one of the forms shall be
    47  either an unsecured or partially secured surety bond, as selected by the
    48  court.
    49    §  11. Section 530.10 of the criminal procedure law is amended to read
    50  as follows:
    51  § 530.10 Order of recognizance release under non-monetary conditions  or
    52             bail; in general.
    53    Under circumstances prescribed in this article, a court, upon applica-
    54  tion of a defendant charged with or convicted of an offense, is required
    55  [or  authorized to order bail or recognizance] to issue a securing order

        A. 9955                            10
 
     1  for [the release or prospective release of] such  defendant  during  the
     2  pendency of either:
     3    1.  A criminal action based upon such charge; or
     4    2.   An appeal taken by the defendant from a judgment of conviction or
     5  a sentence or from an order of an intermediate appellate court affirming
     6  or modifying a judgment of conviction or a sentence.
     7    § 12. Subdivision 4 of section 530.11 of the criminal  procedure  law,
     8  as  added  by  chapter  186  of  the laws of 1997, is amended to read as
     9  follows:
    10    4. When a person is arrested for  an  alleged  family  offense  or  an
    11  alleged  violation  of  an  order  of  protection  or temporary order of
    12  protection or arrested pursuant to a warrant issued by  the  supreme  or
    13  family  court, and the supreme or family court, as applicable, is not in
    14  session, such person shall be brought before a local criminal  court  in
    15  the  county  of arrest or in the county in which such warrant is return-
    16  able pursuant to article one hundred twenty of this chapter. Such  local
    17  criminal  court  may issue any order authorized under subdivision eleven
    18  of section 530.12 of this article, section one hundred  fifty-four-d  or
    19  one hundred fifty-five of the family court act or subdivision three-b of
    20  section  two  hundred  forty or subdivision two-a of section two hundred
    21  fifty-two of the domestic relations  law,  in  addition  to  discharging
    22  other  arraignment  responsibilities  as  set  forth in this chapter. In
    23  making such order, the local criminal court shall consider de  novo  the
    24  [bail] recommendation and securing order, if any, made by the supreme or
    25  family  court  as  indicated  on  the warrant or certificate of warrant.
    26  Unless the petitioner or complainant requests otherwise, the  court,  in
    27  addition  to  scheduling further criminal proceedings, if any, regarding
    28  such alleged family offense or violation  allegation,  shall  make  such
    29  matter  returnable in the supreme or family court, as applicable, on the
    30  next day such court is in session.
    31    § 13. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
    32  procedure law, as added by chapter 388 of the laws of 1984,  is  amended
    33  to read as follows:
    34    (a) revoke an order of recognizance, release under non-monetary condi-
    35  tions or bail and commit the defendant to custody; or
    36    §  14. The opening paragraph of subdivision 1 of section 530.13 of the
    37  criminal procedure law, as amended by chapter 137 of the laws  of  2007,
    38  is amended to read as follows:
    39    When  any  criminal  action is pending, and the court has not issued a
    40  temporary order of protection pursuant to section 530.12 of  this  arti-
    41  cle,  the  court,  in  addition to the other powers conferred upon it by
    42  this chapter, may for good  cause  shown  issue  a  temporary  order  of
    43  protection  in  conjunction  with  any  securing  order  [committing the
    44  defendant to the custody of the sheriff or as a condition of a pre-trial
    45  release, or as a condition of release on  bail]  or  an  adjournment  in
    46  contemplation of dismissal. In addition to any other conditions, such an
    47  order may require that the defendant:
    48    §  15. Subdivision 11 of section 530.12 of the criminal procedure law,
    49  as amended by chapter 498 of the laws of 1993, the opening paragraph  as
    50  amended  by chapter 597 of the laws of 1998, paragraph (a) as amended by
    51  chapter 222 of the laws of 1994, paragraph (d) as amended by chapter 644
    52  of the laws of 1996, is amended to read as follows:
    53    11. If a defendant is brought before the court for failure to obey any
    54  lawful order issued under this section, or an order of protection issued
    55  by a court of competent jurisdiction in another  state,  territorial  or
    56  tribal  jurisdiction,  and  if, after hearing, the court is satisfied by

        A. 9955                            11
 
     1  competent proof that the defendant has willfully failed to obey any such
     2  order, the court may:
     3    (a)  revoke  an  order  of  recognizance or release under non-monetary
     4  conditions or revoke an order of bail or order forfeiture of  such  bail
     5  and commit the defendant to custody; or
     6    (b)  restore  the case to the calendar when there has been an adjourn-
     7  ment in contemplation of dismissal and [commit the defendant to custody]
     8  establish a securing order; or
     9    (c) revoke a conditional discharge in accordance with  section  410.70
    10  of this chapter and impose probation supervision or impose a sentence of
    11  imprisonment  in  accordance  with  the  penal law based on the original
    12  conviction; or
    13    (d) revoke probation in accordance with section 410.70 of this chapter
    14  and impose a sentence of imprisonment in accordance with the  penal  law
    15  based  on the original conviction. In addition, if the act which consti-
    16  tutes the violation of the order of protection  or  temporary  order  of
    17  protection  is  a crime or a violation the defendant may be charged with
    18  and tried for that crime or violation.
    19    § 16. Section 530.20 of the criminal  procedure  law,  as  amended  by
    20  chapter  531  of the laws of 1975, subparagraph (ii) of paragraph (b) of
    21  subdivision 2 as amended by chapter 218 of the laws of 1979, is  amended
    22  to read as follows:
    23  § 530.20 [Order of recognizance or bail;] Securing order by local crimi-
    24               nal court when action is pending therein.
    25    When  a  criminal  action  is  pending in a local criminal court, such
    26  court, upon application of a defendant, [must or may order  recognizance
    27  or bail] shall proceed as follows:
    28    1. [When the defendant is charged, by information, simplified informa-
    29  tion, prosecutor's information or misdemeanor complaint, with an offense
    30  or  offenses of less than felony grade only, the court must order recog-
    31  nizance or bail.] (a) In cases where the most serious offense with which
    32  the defendant stands charged in the case before the court or  a  pending
    33  case is an offense that is not a class A felony defined in the penal law
    34  or  a  felony  enumerated  in section 70.02 of the penal law (other than
    35  burglary in the second degree as defined in subdivision two  of  section
    36  140.25  of  the  penal law or robbery in the second degree as defined in
    37  subdivision one of section 160.10 of such law or reporting a false inci-
    38  dent in the second degree as defined in section 240.55 of such law), the
    39  court shall release the principal pending trial on the  principal's  own
    40  recognizance,  unless  the  court finds on the record or in writing that
    41  release on the principal's own recognizance will not  reasonably  assure
    42  the  principal's  return  to  court.  In such instances, the court shall
    43  release the principal under non-monetary conditions, selecting the least
    44  restrictive alternative and conditions that will reasonably  assure  the
    45  principal's  return  to  court.  The  court  shall explain its choice of
    46  alternative and conditions on the record or in writing.
    47    (b) Except as provided in paragraph (c) of this subdivision, in  cases
    48  where  an  offense  with  which the defendant stands charged in the case
    49  before the court or a pending case is a  felony  enumerated  in  section
    50  70.02  of the penal law (except burglary in the second degree as defined
    51  in subdivision two of section 140.25 of the penal law or robbery in  the
    52  second  degree  as  defined in subdivision one of section 160.10 of such
    53  law or reporting a false incident in the second  degree  as  defined  in
    54  section  240.55  of such law), the court, unless otherwise prohibited by
    55  law, shall release the principal pending trial on  the  principal's  own
    56  recognizance, or release the principal under non-monetary conditions, or

        A. 9955                            12

     1  fix  bail.  In such instances, the court shall select the least restric-
     2  tive alternative that will reasonably assure the principal's  return  to
     3  court.  The court shall explain its choice of alternative and conditions
     4  on the record or in writing.
     5    (c)  In cases where an offense with which the defendant stands charged
     6  in the case before the court or a pending case is a felony  sex  offense
     7  as defined in section 70.80 of the penal law, a felony terrorism offense
     8  under  section  490.10,  490.15, 490.30, 490.35, 490.37, 490.40, 490.45,
     9  490.47, 490.50 or 490.55 of the penal law,  a  class  A  felony  offense
    10  defined in the penal law, a felony offense of witness intimidation under
    11  section  215.15,  215.16,  or  215.17 of the penal law, a felony offense
    12  where a required element thereof is an intent to cause serious  physical
    13  injury  or  death  to another person and causing such injury or death to
    14  such person or a third person, or a felony for which the defendant would
    15  be eligible for sentencing under section 70.08 of  the  penal  law,  the
    16  court,  unless  otherwise prohibited by law, shall release the principal
    17  pending trial under non-monetary conditions, or fix bail, or commit  the
    18  principal  to  the custody of the sheriff.  In such instances, the court
    19  shall select the least restrictive alternative and conditions that  will
    20  reasonably  assure  the  principal's  return  to  court. The court shall
    21  explain its choice of alternative and conditions on  the  record  or  in
    22  writing.
    23    2.  When the defendant is charged, by felony complaint, with a felony,
    24  the court may, in its  discretion,  order  recognizance,  release  under
    25  non-monetary  conditions,  or,  where  authorized,  bail  or  commit the
    26  defendant to the custody of the sheriff except as otherwise provided  in
    27  subdivision one of this section or this subdivision:
    28    (a) A city court, a town court or a village court may not order recog-
    29  nizance or bail when (i) the defendant is charged with a class A felony,
    30  or  (ii)  [it  appears  that]  the  defendant  has  two  previous felony
    31  convictions;
    32    (b) No local criminal court  may  order  recognizance,  release  under
    33  non-monetary conditions or bail with respect to a defendant charged with
    34  a felony unless and until:
    35    (i)    The  district  attorney  has been heard in the matter or, after
    36  knowledge or notice of the application and reasonable opportunity to  be
    37  heard,  has  failed  to appear at the proceeding or has otherwise waived
    38  his right to do so; and
    39    (ii) The court [has] and counsel for the defendant have been furnished
    40  with a report of the division of criminal  justice  services  concerning
    41  the  defendant's  criminal  record,  if any, or with a police department
    42  report with respect to  the  defendant's  prior  arrest  and  conviction
    43  record,  if  any.    If neither report is available, the court, with the
    44  consent of the district attorney, may dispense  with  this  requirement;
    45  provided,  however, that in an emergency, including but not limited to a
    46  substantial impairment in the ability of such division or police depart-
    47  ment to timely furnish such report, such consent shall not  be  required
    48  if,  for  reasons  stated on the record, the court deems it unnecessary.
    49  When the court has been furnished with any such  report  or  record,  it
    50  shall  furnish  a  copy  thereof to counsel for the defendant or, if the
    51  defendant is not represented by counsel, to the defendant.
    52    § 17. The section heading and subdivisions 1 and 2 of  section  530.30
    53  of  the  criminal procedure law, subdivision 2 as amended by chapter 762
    54  of the laws of 1971, are amended to read as follows:

        A. 9955                            13
 
     1  Order of recognizance, release under non-monetary conditions or bail; by
     2               superior court judge when action is pending in local crimi-
     3               nal court.
     4    1.  When a criminal action is pending in a local criminal court, other
     5  than one consisting of a superior court judge sitting as such,  a  judge
     6  of  a superior court holding a term thereof in the county, upon applica-
     7  tion of a defendant, may order recognizance, release under  non-monetary
     8  conditions or, where authorized, bail when such local criminal court:
     9    (a) Lacks authority to issue such an order, pursuant to [paragraph (a)
    10  of  subdivision  two]  the relevant provisions of section 530.20 of this
    11  article; or
    12    (b) Has denied an application for recognizance, release under non-mon-
    13  etary conditions or bail; or
    14    (c) Has fixed bail, where authorized, which is excessive; or
    15    (d) Has set a securing order of release under non-monetary  conditions
    16  which  are  more  restrictive  than  necessary  to reasonably assure the
    17  defendant's return to court.
    18    In such case, such superior court judge may vacate the order  of  such
    19  local criminal court and release the defendant on [his own] recognizance
    20  or  under  non-monetary  conditions,  or where authorized, fix bail in a
    21  lesser amount or in a less burdensome  form,  whichever  are  the  least
    22  restrictive  alternative  and conditions that will reasonably assure the
    23  defendant's return to court. The  court  shall  explain  its  choice  of
    24  alternative and conditions on the record or in writing.
    25    2.  Notwithstanding the provisions of subdivision one of this section,
    26  when the defendant is charged with a felony in a local criminal court, a
    27  superior court judge may not order recognizance, release under non-mone-
    28  tary conditions or, where authorized, bail unless and until the district
    29  attorney has had an opportunity to be heard in the matter and such judge
    30  [has] and counsel for the defendant have been furnished with a report as
    31  described  in  subparagraph  (ii) of paragraph (b) of subdivision two of
    32  section 530.20 of this article.
    33    § 18. Section 530.40 of the criminal procedure law, subdivision  3  as
    34  amended by chapter 264 of the laws of 2003, and subdivision 4 as amended
    35  by chapter 762 of the laws of 1971, is amended to read as follows:
    36  § 530.40 Order of recognizance, release under non-monetary conditions or
    37             bail; by superior court when action is pending therein.
    38    When  a  criminal  action  is pending in a superior court, such court,
    39  upon application of a defendant, must or may order recognizance or  bail
    40  as follows:
    41    1.  When  the defendant is charged with an offense or offenses of less
    42  than felony grade only, the court must,  unless  otherwise  provided  by
    43  law,  order recognizance or [bail] release under non-monetary conditions
    44  in accordance with this section.
    45    2. When the defendant is charged with a felony, the court may, in  its
    46  discretion,  order  recognizance [or], release under non-monetary condi-
    47  tions or, where authorized, bail. In any such case in which  an  indict-
    48  ment  (a)  has  resulted from an order of a local criminal court holding
    49  the defendant for the action of the grand jury, or (b) was  filed  at  a
    50  time  when a felony complaint charging the same conduct was pending in a
    51  local criminal court, and in which such local criminal court or a  supe-
    52  rior court judge has issued an order of recognizance [or], release under
    53  non-monetary conditions or, where authorized, bail which is still effec-
    54  tive,  the  superior  court's  order  may  be in the form of a direction
    55  continuing the effectiveness of the previous order.

        A. 9955                            14
 
     1    3. In cases where the most serious offense with  which  the  defendant
     2  stands  charged  in  the  case  before the court or a pending case is an
     3  offense that is not a class A felony defined in the penal law or a felo-
     4  ny enumerated in section 70.02 of the penal law (other than burglary  in
     5  the second degree as defined in subdivision two of section 140.25 of the
     6  penal  law or robbery in the second degree as defined in subdivision one
     7  of section 160.10 of such law or  reporting  a  false  incident  in  the
     8  second degree as defined in section 240.55 of such law), the court shall
     9  release the principal pending trial on the principal's own recognizance,
    10  unless  the  court finds on the record or in writing that release on the
    11  principal's own recognizance will not reasonably assure the  principal's
    12  return  to court. In such instances, the court shall release the princi-
    13  pal under  non-monetary  conditions,  selecting  the  least  restrictive
    14  alternative  and  conditions that will reasonably assure the principal's
    15  return to court. The court shall explain its choice of  alternative  and
    16  conditions on the record or in writing.
    17    4.  Except  as  provided in subdivision five of this section, in cases
    18  where an offense with which the defendant stands  charged  in  the  case
    19  before  the  court  or  a pending case is a felony enumerated in section
    20  70.02 of the penal law (except burglary in the second degree as  defined
    21  in  subdivision two of section 140.25 of the penal law or robbery in the
    22  second degree as defined in subdivision one of section  160.10  of  such
    23  law  or  reporting  a  false incident in the second degree as defined in
    24  section 240.55 of such law) the court, unless  otherwise  prohibited  by
    25  law,  shall  release  the principal pending trial on the principal's own
    26  recognizance, or release the principal under non-monetary conditions, or
    27  fix bail, selecting the least  restrictive  alternative  and  conditions
    28  that  will  reasonably assure the principal's return to court. The court
    29  shall explain its choice of alternative and conditions on the record  or
    30  in writing.
    31    5.  In  cases where an offense with which the defendant stands charged
    32  in the case before the court or a pending case is a felony  sex  offense
    33  as defined in section 70.80 of the penal law, a felony terrorism offense
    34  under  section  490.10,  490.15, 490.30, 490.35, 490.37, 490.40, 490.45,
    35  490.47, 490.50 or 490.55 of the penal law,  a  class  A  felony  offense
    36  defined in the penal law, a felony offense of witness intimidation under
    37  section  215.15,  215.16,  or  215.17 of the penal law, a felony offense
    38  where a required element thereof is an intent to cause serious  physical
    39  injury  or  death  to another person and causing such injury or death to
    40  such person or a third person, or a felony for which  the  defendant  is
    41  eligible for sentencing under section 70.08 of the penal law, the court,
    42  unless  otherwise prohibited by law, shall release the principal pending
    43  trial under non-monetary conditions, or fix bail, or commit the  princi-
    44  pal  to  the  custody  of  the  sheriff, selecting the least restrictive
    45  alternative and conditions that will reasonably assure  the  principal's
    46  return  to  court. The court shall explain its choice of alternative and
    47  conditions on the record or in writing.
    48    6. Notwithstanding the provisions of  [subdivision  two]  subdivisions
    49  two,  three,  four  and  five  of this section, a superior court may not
    50  order recognizance, release  under  non-monetary  conditions  or,  where
    51  authorized, bail, or permit a defendant to remain at liberty pursuant to
    52  an  existing  order,  after  [he]  the  defendant  has been convicted of
    53  either: (a) a class A felony or (b) any class B or  class  C  felony  as
    54  defined  in  article  one  hundred  thirty of the penal law committed or
    55  attempted to be committed by a person eighteen years  of  age  or  older

        A. 9955                            15
 
     1  against  a  person  less  than eighteen years of age. In either case the
     2  court must commit or remand the defendant to the custody of the sheriff.
     3    [4.]  7.  Notwithstanding the provisions of [subdivision two] subdivi-
     4  sions two, three, four and five of this section, a  superior  court  may
     5  not  order recognizance, release under non-monetary conditions or, where
     6  authorized, bail when the defendant is charged with a felony unless  and
     7  until  the  district  attorney has had an opportunity to be heard in the
     8  matter and such court [has] and counsel  for  the  defendant  have  been
     9  furnished  with  a report as described in subparagraph (ii) of paragraph
    10  (b) of subdivision two of section 530.20 of this article.
    11    § 19. Subdivision 1 of section 530.45 of the criminal  procedure  law,
    12  as  amended  by  chapter  264 of the laws of 2003, is amended to read as
    13  follows:
    14    1. When the defendant is at liberty in the course of a criminal action
    15  as a result of a prior order of recognizance, release under non-monetary
    16  conditions or bail and the court revokes such order and  then  [either],
    17  where  authorized, fixes no bail or fixes bail in a greater amount or in
    18  a more burdensome form than was previously fixed and remands or  commits
    19  defendant  to  the  custody of the sheriff, or issues a more restrictive
    20  securing order, a judge designated in subdivision two of  this  section,
    21  upon  application  of  the  defendant following conviction of an offense
    22  other than a class A felony or a class B or class C  felony  offense  as
    23  defined  in  article  one  hundred  thirty of the penal law committed or
    24  attempted to be committed by a person eighteen years  of  age  or  older
    25  against a person less than eighteen years of age, and before sentencing,
    26  may  issue  a securing order and [either] release the defendant on [his]
    27  the defendant's own recognizance, release the defendant under  non-mone-
    28  tary  conditions,  or,  where  authorized,  fix bail[,] or fix bail in a
    29  lesser amount or in a less burdensome form, or issue a less  restrictive
    30  securing  order,  than  fixed  by  the court in which the conviction was
    31  entered.
    32    § 20. Section 530.60 of the criminal procedure law, subdivision  1  as
    33  amended  by  chapter  565 of the laws of 2011, subdivision 2 as added by
    34  chapter 788 of the laws of 1981 and paragraph (a) of  subdivision  2  as
    35  amended  by  chapter  794  of  the  laws  of 1986, is amended to read as
    36  follows:
    37  § 530.60 [Order of recognizance or  bail;  revocation  thereof]  Certain
    38              modifications of a securing order.
    39    1. Whenever in the course of a criminal action or proceeding a defend-
    40  ant is at liberty as a result of an order of recognizance, release under
    41  non-monetary conditions or bail issued pursuant to this chapter, and the
    42  court considers it necessary to review such order, [it] whether due to a
    43  motion by the people or otherwise, the court may, and except as provided
    44  in  subdivision two of section 510.50 of this title concerning a failure
    45  to appear in court, by a bench warrant if necessary, require the defend-
    46  ant to appear before the court. Upon such  appearance,  the  court,  for
    47  good  cause  shown,  may revoke the order of recognizance, release under
    48  non-monetary conditions, or bail. If the defendant is entitled to recog-
    49  nizance, release under non-monetary conditions, or bail as a  matter  of
    50  right,  the  court  must  issue  another  such order. If [he or she] the
    51  defendant is not, the court may either issue such an order or commit the
    52  defendant to the custody of the sheriff in accordance with this section.
    53    Where the defendant is committed to the custody of the sheriff and  is
    54  held  on  a felony complaint, a new period as provided in section 180.80
    55  of this chapter shall commence to run from the time of  the  defendant's
    56  commitment under this subdivision.

        A. 9955                            16
 
     1    2.  (a)  Whenever  in  the course of a criminal action or proceeding a
     2  defendant charged with the commission of a felony is  at  liberty  as  a
     3  result  of  an  order of recognizance, release under non-monetary condi-
     4  tions or bail issued pursuant to this article it shall  be  grounds  for
     5  revoking such order that the court finds reasonable cause to believe the
     6  defendant  committed  one  or  more  specified class A or violent felony
     7  offenses or intimidated a victim or witness in violation  of  [sections]
     8  section 215.15, 215.16 or 215.17 of the penal law while at liberty.
     9    (b)  Except as provided in paragraph (a) of this subdivision, whenever
    10  in the course of a criminal action or  proceeding  a  defendant  charged
    11  with  the commission of an offense is at liberty as a result of an order
    12  of recognizance, release under non-monetary conditions  or  bail  issued
    13  pursuant to this article it shall be grounds for revoking such order and
    14  fixing  bail  in  such  criminal action or proceeding when the court has
    15  found, by clear and convincing evidence, that the defendant:
    16    (i) persistently willfully failed to appear after notice of  scheduled
    17  appearances in the case before the court; or
    18    (ii)  violated  an  order  of  protection  in the manner prohibited by
    19  subdivision (b), (c) or (d) of section 215.51 of the penal law while  at
    20  liberty; or
    21    (iii)  stands charged in such criminal action or proceeding with a sex
    22  offense that would require registration as a sex  offender  pursuant  to
    23  article six-C of the correction law and, after being so charged, commit-
    24  ted another such sex offense while at liberty;
    25    (iv)  stands  charged  in  such  criminal  action or proceeding with a
    26  misdemeanor or violation and, after  being  so  charged,  intimidated  a
    27  victim  or  witness  in violation of section 215.15, 215.16 or 215.17 of
    28  the penal law while at liberty; or
    29    (v) stands charged in such action or proceeding  with  a  felony  and,
    30  after being so charged, committed a felony while at liberty.
    31    (c)  Before revoking an order of recognizance, release under non-mone-
    32  tary conditions, or bail pursuant to this subdivision,  the  court  must
    33  hold  a  hearing and shall receive any relevant, admissible evidence not
    34  legally privileged. The defendant may cross-examine  witnesses  and  may
    35  present  relevant,  admissible  evidence on his own behalf. Such hearing
    36  may be consolidated with, and conducted at the same time  as,  a  felony
    37  hearing  conducted  pursuant to article one hundred eighty of this chap-
    38  ter. A transcript of testimony taken before the grand jury upon  presen-
    39  tation  of the subsequent offense shall be admissible as evidence during
    40  the hearing.  The district attorney may move  to  introduce  grand  jury
    41  testimony  of a witness in lieu of that witness' appearance at the hear-
    42  ing.
    43    [(b)] (d) Revocation of an order of recognizance, release  under  non-
    44  monetary  conditions  or  bail  and  a new securing order fixing bail or
    45  commitment, as specified in this paragraph and pursuant to this subdivi-
    46  sion shall be for the following periods[, either]:
    47    (i) Under paragraph (a) of this subdivision, revocation of  the  order
    48  of  recognizance,  release under non-monetary conditions or, as the case
    49  may be, bail, and a new securing order fixing  bail  or  committing  the
    50  defendant to the custody of the sheriff shall be as follows:
    51    [(i)]  (A)  For  a  period  not to exceed ninety days exclusive of any
    52  periods of adjournment requested by the defendant; or
    53    [(ii)] (B) Until the charges contained within the  accusatory  instru-
    54  ment  have  been  reduced  or dismissed such that no count remains which
    55  charges the defendant with commission of a felony; or

        A. 9955                            17
 
     1    [(iii)] (C) Until reduction or  dismissal  of  the  charges  contained
     2  within  the  accusatory  instrument charging the subsequent offense such
     3  that no count remains which charges the defendant with commission  of  a
     4  class A or violent felony offense.
     5    Upon  expiration  of  any  of  the three periods specified within this
     6  [paragraph] subparagraph, whichever is shortest, the court may grant  or
     7  deny  release  upon  an order of bail or recognizance in accordance with
     8  the provisions of this  article.  Upon  conviction  to  an  offense  the
     9  provisions  of  article  five  hundred  thirty  of  this  chapter  shall
    10  apply[.]; and
    11    [(c)] (ii) Under paragraph (b) of this subdivision, revocation of  the
    12  order  of recognizance, release under non-monetary conditions or, as the
    13  case may be, bail shall result in the issuance of a new  securing  order
    14  which  may,  if  otherwise  authorized  by  law,  permit the principal's
    15  release on recognizance or release under  non-monetary  conditions,  but
    16  shall  also  render  the  defendant  eligible  for  an order fixing bail
    17  provided, however, that in accordance with the principles in this  title
    18  the court must select the least restrictive alternative and condition or
    19  conditions  that will reasonably assure the principal's return to court.
    20  Nothing in this subparagraph shall  be  interpreted  as  shortening  the
    21  period  of  detention,  or requiring or authorizing any less restrictive
    22  form of a securing order, which may be imposed  pursuant  to  any  other
    23  law.
    24    (e)  Notwithstanding  the  provisions  of paragraph (a) or (b) of this
    25  subdivision a defendant, against whom a felony complaint has been  filed
    26  which  charges  the  defendant  with  commission of a class A or violent
    27  felony offense or violation of section 215.15, 215.16 or 215.17  of  the
    28  penal law committed while he was at liberty as specified therein, may be
    29  committed to the custody of the sheriff pending a revocation hearing for
    30  a  period  not  to exceed seventy-two hours. An additional period not to
    31  exceed seventy-two hours may be granted by the court upon application of
    32  the district attorney upon a showing of good cause or where the  failure
    33  to  commence  the hearing was due to the defendant's request or occurred
    34  with his consent. Such good cause must consist of some  compelling  fact
    35  or  circumstance  which  precluded  conducting  the  hearing  within the
    36  initial prescribed period.
    37    § 21. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
    38  procedure law, as amended by chapter 258 of the laws of 2015, is amended
    39  to read as follows:
    40    (a) If at any time during the defendant's participation in  the  judi-
    41  cial diversion program, the court has reasonable grounds to believe that
    42  the  defendant  has violated a release condition in an important respect
    43  or has willfully failed to appear before the  court  as  requested,  the
    44  court  except  as  provided in subdivision two of section 510.50 of this
    45  chapter regarding a failure to appear, shall  direct  the  defendant  to
    46  appear  or  issue  a bench warrant to a police officer or an appropriate
    47  peace officer directing him or her to take the  defendant  into  custody
    48  and  bring  the  defendant  before  the court without unnecessary delay;
    49  provided, however, that under no circumstances  shall  a  defendant  who
    50  requires  treatment  for  opioid  abuse  or dependence be deemed to have
    51  violated a release condition on the basis of his or her participation in
    52  medically prescribed drug treatments under the care  of  a  health  care
    53  professional  licensed  or  certified under title eight of the education
    54  law, acting within his or her lawful scope of practice.    The  relevant
    55  provisions of [subdivision one of] section 530.60 of this chapter relat-

        A. 9955                            18
 
     1  ing  to [revocation of recognizance or bail] issuance of securing orders
     2  shall apply to such proceedings under this subdivision.
     3    §  22.  The opening paragraph of section 240.44 of the criminal proce-
     4  dure law, as added by chapter 558 of the laws of  1982,  is  amended  to
     5  read as follows:
     6    Subject to a  protective order, at a pre-trial hearing held in a crim-
     7  inal  court at which a witness is called to testify, each party, [at the
     8  conclusion] prior to the commencement of the direct examination of  each
     9  of its witnesses, shall, upon request of the other party, make available
    10  to that party to the extent not previously disclosed:
    11    §  23.  Section  410.60  of  the criminal procedure law, as amended by
    12  chapter 652 of the laws of 2008, is amended to read as follows:
    13  § 410.60 Appearance before court.
    14    A person who has been taken into custody pursuant to section 410.40 or
    15  section 410.50 of this  article  for  violation  of  a  condition  of  a
    16  sentence of probation or a sentence of conditional discharge must forth-
    17  with  be  brought  before  the  court that imposed the sentence. Where a
    18  violation of probation petition and report has been filed and the person
    19  has not been taken into custody  nor  has  a  warrant  been  issued,  an
    20  initial  court  appearance  shall  occur within ten business days of the
    21  court's issuance of a notice to appear.  If  the  court  has  reasonable
    22  cause  to  believe  that  such  person  has  violated a condition of the
    23  sentence, it may commit [him] such person to the custody of the  sheriff
    24  [or],  fix  bail,  release  such person under non-monetary conditions or
    25  release such person on [his] such person's own recognizance  for  future
    26  appearance  at a hearing to be held in accordance with section 410.70 of
    27  this article. If the court does not have  reasonable  cause  to  believe
    28  that  such  person  has  violated  a  condition of the sentence, it must
    29  direct that [he] such person be released.
    30    § 24. Subdivision 3 of section 620.50 of the criminal procedure law is
    31  amended to read as follows:
    32    3. A material witness order must be executed as follows:
    33    (a)  If the bail is posted and approved  by  the  court,  the  witness
    34  must,  as  provided  in  subdivision  [three]  two of section 510.40, be
    35  released and be permitted to remain at liberty; provided that, where the
    36  bail is posted by a person other than the witness himself, he may not be
    37  so released except upon his signed written consent thereto;
    38    (b)  If the bail is not posted, or if though posted it is not approved
    39  by the court, the witness must, as provided in subdivision  [three]  two
    40  of section 510.40, be committed to the custody of the sheriff.
    41    §  25.  This act shall take effect on the thirtieth day after it shall
    42  have become a law.
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