Rpld Arts 520 & 540, §420.10 sub 1 ¶(e), §§530.80, 570.38, 570.42 & 246-a, amd CP L, generally; rpld §246-a,
Lien L; ren Art 50 §§1000 - 1003 to be Art 51 §§1100 - 1103, add Art 50 §§1005 & 1006, Exec L
Eliminates bail for all offenses; provides for imposition of restrictions and conditions and remand for certain offenses; directs consideration of a defendant's character, reputation, habits, mental condition, activities and history, and whether they pose a danger to themselves, another person or the community, when determining a securing order; creates the commission on public safety reform to issue a determination on which offenses should be eligible for pretrial detention.
STATE OF NEW YORK
________________________________________________________________________
5973
2023-2024 Regular Sessions
IN SENATE
March 24, 2023
___________
Introduced by Sen. ASHBY -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to eliminating
bail; to amend the executive law, in relation to establishing a
commission on public safety reform; and to repeal certain provisions
of the criminal procedure law and the lien law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2 and 3 of section 140.20 of the criminal
2 procedure law, as amended by chapter 550 of the laws of 1987, are
3 amended to read as follows:
4 2. If the arrest is for an offense other than a class A, B, C or D
5 felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
6 or 215.56 of the penal law, the arrested person need not be brought
7 before a local criminal court as provided in subdivision one, and [the
8 procedure may instead be as follows:
9 (a) A] instead a police officer may issue and serve an appearance
10 ticket upon the arrested person and release him from custody, as
11 prescribed in subdivision two of section 150.20[; or
12 (b) The desk officer in charge at a police station, county jail or
13 police headquarters, or any of his superior officers, may, in such place
14 fix pre-arraignment bail and, upon deposit thereof, issue and serve an
15 appearance ticket upon the arrested person and release him from custody,
16 as prescribed in section 150.30] of this title.
17 3. If (a) the arrest is for an offense other than a class A, B, C or D
18 felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
19 or 215.56 of the penal law, and (b) owing to unavailability of a local
20 criminal court the arresting police officer is unable to bring the
21 arrested person before such a court with reasonable promptness, either
22 an appearance ticket must be served unconditionally upon the arrested
23 person [or pre-arraignment bail must be fixed, as prescribed in subdivi-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10397-01-3
S. 5973 2
1 sion two. If pre-arraignment bail is fixed but not posted, such arrested
2 person may be temporarily held in custody but must be brought before a
3 local criminal court without unnecessary delay]. Nothing contained in
4 this subdivision requires a police officer to serve an appearance ticket
5 upon an arrested person or release him from custody at a time when such
6 person appears to be under the influence of alcohol, narcotics or other
7 drug to the degree that he may endanger himself or other persons.
8 § 2. Subdivision 3 of section 140.40 of the criminal procedure law, as
9 amended by chapter 550 of the laws of 1987, is amended to read as
10 follows:
11 3. If the arrest is for an offense other than a class A, B, C or D
12 felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
13 or 215.56 of the penal law, the arrested person need not be brought
14 before a local criminal court, as provided in subdivision one, and [the
15 procedure may instead be as follows:
16 (a) An] instead an appropriate police officer may issue and serve an
17 appearance ticket upon the arrested person and release him from custody,
18 as prescribed in subdivision two of section 150.20[; or
19 (b) The desk officer in charge at the appropriate police officer's
20 station, county jail or police headquarters, or any of his superior
21 officers, may, in such place, fix pre-arraignment bail and, upon deposit
22 thereof, issue and serve an appearance ticket upon the arrested person
23 and release him from custody, as prescribed in section 150.30] of this
24 title.
25 § 3. The section heading and subdivision 7 of section 170.10 of the
26 criminal procedure law are amended to read as follows:
27 Arraignment upon information, simplified traffic information,
28 prosecutor's information or misdemeanor complaint; defendant's presence,
29 defendant's rights, court's instructions and [bail] securing order
30 matters.
31 7. Upon the arraignment, the court, unless it intends to make a final
32 disposition of the action immediately thereafter, must, as provided in
33 subdivision one of section 530.20 of this chapter, issue a securing
34 order either releasing the defendant on his or her own recognizance [or
35 fixing bail], under non-monetary conditions, or, where authorized,
36 committing the defendant to the custody of the sheriff for his or her
37 future appearance in the action; except that where a defendant appears
38 by counsel pursuant to paragraph (b) of subdivision one of this section,
39 the court must release the defendant on his or her own recognizance.
40 § 4. Paragraph (a) and the opening paragraph and subparagraph (xi) of
41 paragraph (b) of subdivision 1 of section 150.20 of the criminal proce-
42 dure law, paragraph (a) as amended and the opening paragraph of para-
43 graph (b) as added by section 1-a of part JJJ of chapter 59 of the laws
44 of 2019, subparagraph (xi) of paragraph (b) of subdivision 1 as added by
45 section 1 of subpart B of part UU of chapter 56 of the laws of 2022, are
46 amended to read as follows:
47 (a) Whenever a police officer is authorized pursuant to section 140.10
48 of this title to arrest a person without a warrant for an offense other
49 than a class A, B, C or D felony or a violation of section 130.25,
50 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he [shall,
51 except as set out in paragraph (b) of this subdivision] or she may,
52 subject to the provisions of subdivisions three and four of section
53 150.40 of this title, instead issue to and serve upon such person an
54 appearance ticket.
55 An officer is not [required] authorized to issue an appearance ticket
56 if:
S. 5973 3
1 (xi) the offense is a qualifying offense pursuant to paragraph [(t)]
2 (k) of subdivision four of section 510.10 of this chapter, or pursuant
3 to paragraph [(t)] (k) of subdivision four of section 530.40 of this
4 chapter.
5 § 5. Subdivision 2 of section 170.25 of the criminal procedure law is
6 amended to read as follows:
7 2. Such order stays the proceedings in the local criminal court pend-
8 ing submission of the charge to the grand jury. Upon the subsequent
9 filing of an indictment in the superior court, the proceedings in the
10 local criminal court terminate and the defendant must be required to
11 appear for arraignment upon the indictment in the manner prescribed in
12 subdivisions one and two of section 210.10 of this part. Upon the subse-
13 quent filing of a grand jury dismissal of the charge, the proceedings in
14 the local criminal court terminate and the superior court must, if the
15 defendant is not at liberty on his or her own recognizance, discharge
16 him or her from custody [or exonerate his bail, as the case may be].
17 § 6. Subdivision 3 of section 170.50 of the criminal procedure law is
18 amended to read as follows:
19 3. Upon dismissing a prosecutor's information or a count thereof
20 pursuant to this section, the court may, upon application of the people,
21 in its discretion authorize the people to resubmit the charge or charges
22 to the same or another grand jury. In the absence of such authorization,
23 such charge or charges may not be resubmitted to a grand jury. The rules
24 prescribed in subdivisions eight and nine of section 210.45 of this part
25 concerning the discharge of a defendant from custody [or exoneration of
26 bail] in the absence of an authorization to resubmit an indictment to a
27 grand jury, and concerning the issuance of a securing order and the
28 effective period thereof where such an authorization is issued, apply
29 equally where a prosecutor's information is dismissed pursuant to this
30 section.
31 § 7. Subdivision 2 of section 210.10 of the criminal procedure law, as
32 amended by chapter 681 of the laws of 1990, is amended to read as
33 follows:
34 2. If a felony complaint against the defendant was pending in a local
35 criminal court or if the defendant was previously held by a local crimi-
36 nal court for the action of the grand jury, and if the defendant is at
37 liberty on his or her own recognizance or [on bail] under non-monetary
38 conditions pursuant to a previous court order issued in the same crimi-
39 nal action, the superior court must, upon at least two days notice to
40 the defendant [and his or her surety, to any person other than the
41 defendant who posted cash bail] and to any attorney who would be enti-
42 tled to notice under circumstances prescribed in subdivision one of this
43 section, direct the defendant to appear before the superior court for
44 arraignment on a specified date. If the defendant fails to appear on
45 such date, the court may issue a bench warrant [and, in addition, may
46 forfeit the bail, if any]. Upon taking the defendant into custody pursu-
47 ant to such bench warrant, the executing police officer must without
48 unnecessary delay bring the defendant before such superior court for
49 arraignment. If such superior court is not available, the executing
50 police officer may bring the defendant to the local correctional facili-
51 ty of the county in which such superior court sits, to be detained there
52 until not later than the commencement of the next session of such court
53 occurring on the next business day.
54 § 8. The section heading and subdivision 6 of section 210.15 of the
55 criminal procedure law are amended to read as follows:
S. 5973 4
1 Arraignment upon indictment; defendant's rights, court's instructions
2 and [bail] securing order matters.
3 6. Upon the arraignment, the court, unless it intends to make a final
4 disposition of the action immediately thereafter, must, as provided in
5 section 530.40 of this chapter, issue a securing order, releasing the
6 defendant on his or her own recognizance or [fixing bail] under non-mon-
7 etary conditions or committing him or her to the custody of the sheriff
8 for his or her future appearance in such action.
9 § 9. Subdivisions 8 and 9 of section 210.45 of the criminal procedure
10 law are amended to read as follows:
11 8. When the court dismisses the entire indictment without authorizing
12 resubmission of the charge or charges to a grand jury, it must order
13 that the defendant be discharged from custody if he or she is in the
14 custody of the sheriff[, or if he is at liberty on bail it must exoner-
15 ate the bail].
16 9. When the court dismisses the entire indictment but authorizes
17 resubmission of the charge or charges to a grand jury, such authori-
18 zation is, for purposes of this subdivision, deemed to constitute an
19 order holding the defendant for the action of a grand jury with respect
20 to such charge or charges. Such order must be accompanied by a securing
21 order either releasing the defendant on his or her own recognizance or
22 [fixing bail] under non-monetary conditions or committing him or her to
23 the custody of the sheriff pending resubmission of the case to the grand
24 jury and the grand jury's disposition thereof. Such securing order
25 remains in effect until the first to occur of any of the following:
26 (a) A statement to the court by the people that they do not intend to
27 resubmit the case to a grand jury;
28 (b) Arraignment of the defendant upon an indictment or prosecutor's
29 information filed as a result of resubmission of the case to a grand
30 jury. Upon such arraignment, the arraigning court must issue a new
31 securing order;
32 (c) The filing with the court of a grand jury dismissal of the case
33 following resubmission thereof;
34 (d) The expiration of a period of forty-five days from the date of
35 issuance of the order; provided that such period may, for good cause
36 shown, be extended by the court to a designated subsequent date if such
37 be necessary to accord the people reasonable opportunity to resubmit the
38 case to a grand jury.
39 Upon the termination of the effectiveness of the securing order pursu-
40 ant to paragraph (a), (c) or (d) of this subdivision, the court must
41 immediately order that the defendant be discharged from custody if he or
42 she is in the custody of the sheriff[, or if he is at liberty on bail it
43 must exonerate the bail]. Although expiration of the period of time
44 specified in paragraph (d) without any resubmission or grand jury dispo-
45 sition of the case terminates the effectiveness of the securing order,
46 it does not terminate the effectiveness of the order authorizing resub-
47 mission.
48 § 10. Subdivision 6 and paragraph (c) of subdivision 9 of section
49 216.05 of the criminal procedure law, as amended by chapter 435 of the
50 laws of 2021, are amended to read as follows:
51 6. Upon an eligible defendant's agreement to abide by the conditions
52 set by the court, the court shall issue a securing order providing for
53 [bail or] release on the defendant's own recognizance and conditioning
54 any release upon the agreed upon conditions. The period of alcohol or
55 substance use treatment shall begin as specified by the court and as
56 soon as practicable after the defendant's release, taking into account
S. 5973 5
1 the availability of treatment, so as to facilitate early intervention
2 with respect to the defendant's substance use or condition and the
3 effectiveness of the treatment program. In the event that a treatment
4 program is not immediately available or becomes unavailable during the
5 course of the defendant's participation in the judicial diversion
6 program, the court may release the defendant pursuant to the securing
7 order.
8 (c) If the court determines that the defendant has violated a condi-
9 tion of his or her release under the judicial diversion program, the
10 court may modify the conditions thereof, reconsider the order of recog-
11 nizance [or bail] pursuant to subdivision two of section 510.30 of this
12 chapter, or terminate the defendant's participation in the judicial
13 diversion program; and when applicable proceed with the defendant's
14 sentencing in accordance with the agreement. Notwithstanding any
15 provision of law to the contrary, the court may impose any sentence
16 authorized for the crime of conviction in accordance with the plea
17 agreement, or any lesser sentence authorized to be imposed on a felony
18 drug offender pursuant to paragraph (b) or (c) of subdivision two of
19 section 70.70 of the penal law taking into account the length of time
20 the defendant spent in residential treatment and how best to continue
21 treatment while the defendant is serving that sentence. In determining
22 what action to take for a violation of a release condition, the court
23 shall consider all relevant circumstances, including the views of the
24 prosecutor, the defense and the alcohol or substance use treatment
25 provider, and the extent to which persons who ultimately successfully
26 complete a drug treatment regimen sometimes relapse by not abstaining
27 from alcohol or substance use or by failing to comply fully with all
28 requirements imposed by a treatment program. The court shall also
29 consider using a system of graduated and appropriate responses or sanc-
30 tions designed to address such inappropriate behaviors, protect public
31 safety and facilitate, where possible, successful completion of the
32 alcohol or substance use treatment program.
33 § 11. Subdivision 4 of section 290.10 of the criminal procedure law is
34 amended to read as follows:
35 4. Upon issuing a trial order of dismissal which dismisses the entire
36 indictment, the court must immediately discharge the defendant from
37 custody if he is in custody of the sheriff[, or, if he is at liberty on
38 bail, it must exonerate the bail].
39 § 12. Subdivision 1 of section 330.10 of the criminal procedure law is
40 amended to read as follows:
41 1. Upon a verdict of complete acquittal, the court must immediately
42 discharge the defendant if he is in the custody of the sheriff[, or, if
43 he is at liberty on bail, it must exonerate the bail].
44 § 13. Section 410.60 of the criminal procedure law, as amended by
45 section 23 of part JJJ of chapter 59 of the laws of 2019, is amended to
46 read as follows:
47 § 410.60 Appearance before court.
48 A person who has been taken into custody pursuant to section 410.40 or
49 section 410.50 of this article for violation of a condition of a
50 sentence of probation or a sentence of conditional discharge must forth-
51 with be brought before the court that imposed the sentence. Where a
52 violation of probation petition and report has been filed and the person
53 has not been taken into custody nor has a warrant been issued, an
54 initial court appearance shall occur within ten business days of the
55 court's issuance of a notice to appear. If the court has reasonable
56 cause to believe that such person has violated a condition of the
S. 5973 6
1 sentence, it may commit such person to the custody of the sheriff, [fix
2 bail,] release such person under non-monetary conditions or release such
3 person on such person's own recognizance for future appearance at a
4 hearing to be held in accordance with section 410.70 of this article. If
5 the court does not have reasonable cause to believe that such person has
6 violated a condition of the sentence, it must direct that such person be
7 released.
8 § 14. Subdivision 1 of section 410.70 of the criminal procedure law,
9 as amended by chapter 17 of the laws of 2014, is amended to read as
10 follows:
11 1. In general. The court may not revoke a sentence of probation or a
12 sentence of conditional discharge, or extend a period of probation,
13 unless (a) the court has found that the defendant has violated a condi-
14 tion of the sentence and (b) the defendant has had an opportunity to be
15 heard pursuant to this section. The defendant is entitled to a hearing
16 in accordance with this section promptly after the court has filed a
17 declaration of delinquency or has committed him [or has fixed bail]
18 pursuant to this article.
19 § 15. Paragraph (e) of subdivision 1 of section 420.10 of the criminal
20 procedure law is REPEALED.
21 § 16. Subdivisions 1 and 6 of section 460.50 of the criminal procedure
22 law, subdivision 1 as amended by chapter 884 of the laws of 1971, subdi-
23 vision 6 as added by chapter 168 of the laws of 1981, are amended to
24 read as follows:
25 1. Upon application of a defendant who has taken an appeal to an
26 intermediate appellate court from a judgment or from a sentence of a
27 criminal court, a judge designated in subdivision two of this section
28 may issue an order both (a) staying or suspending the execution of the
29 judgment pending the determination of the appeal, and (b) [either]
30 releasing the defendant on his or her own recognizance or [fixing bail]
31 under non-monetary conditions pursuant to the provisions of article five
32 hundred thirty of this chapter. That phase of the order staying or
33 suspending execution of the judgment does not become effective unless
34 and until the defendant is released[, either on his own recognizance or
35 upon the posting of bail].
36 6. Upon application of a defendant who has been granted a certificate
37 granting leave to appeal pursuant to section 460.15 of this chapter, and
38 in accordance with the procedures set forth in subdivisions three, four
39 and five of this section, the intermediate appellate court may issue an
40 order both (a) staying or suspending the execution of the judgment pend-
41 ing the determination of the appeal, and (b) [either] releasing the
42 defendant on his or her own recognizance or [fixing bail] under non-mon-
43 etary conditions pursuant to the provisions of article five hundred
44 thirty of this chapter. That phase of the order staying or suspending
45 execution of the judgment does not become effective unless and until the
46 defendant is released[, either on his own recognizance or upon the post-
47 ing of bail].
48 § 17. Subdivision 1 of section 460.60 of the criminal procedure law,
49 as amended by chapter 168 of the laws of 1981, is amended to read as
50 follows:
51 1. (a) A judge who, pursuant to section 460.20 of this [chapter] arti-
52 cle, has received an application for a certificate granting a defendant
53 leave to appeal to the court of appeals from an order of an intermediate
54 appellate court affirming or modifying a judgment including a sentence
55 of imprisonment, a sentence of imprisonment, or an order appealed pursu-
56 ant to section 450.15 of this [chapter] title, of a criminal court, may,
S. 5973 7
1 upon application of such defendant-appellant issue an order both (i)
2 staying or suspending the execution of the judgment pending the determi-
3 nation of the application for leave to appeal, and, if that application
4 is granted, staying or suspending the execution of the judgment pending
5 the determination of the appeal, and (ii) either releasing the defend-
6 ant on his or her own recognizance or [continuing bail as previously
7 determined or fixing bail] under non-monetary conditions pursuant to the
8 provisions of article five hundred thirty of this chapter. Such an order
9 is effective immediately and that phase of the order staying or
10 suspending execution of the judgment does not become effective unless
11 and until the defendant is released[, either on his own recognizance or
12 upon the posting of bail].
13 (b) If the application for leave to appeal is denied, the stay or
14 suspension pending the application automatically terminates upon the
15 signing of the certificate denying leave. Upon such termination, the
16 certificate denying leave must be sent to the criminal court in which
17 the original judgment was entered, and the latter must proceed in the
18 manner provided in subdivision five of section 460.50 of this [chapter]
19 article.
20 § 18. Section 470.45 of the criminal procedure law is amended to read
21 as follows:
22 § 470.45 Remission of case by appellate court to criminal court upon
23 reversal or modification of judgment; action by criminal
24 court.
25 Upon reversing or modifying a judgment and directing corrective
26 action, an appellate court must remit the case to the criminal court in
27 which the judgment was entered. Such criminal court must execute the
28 direction of the appellate court and must, depending upon the nature of
29 such direction, either discharge the defendant from custody[, exonerate
30 his bail] or issue a securing order.
31 § 19. The article heading of article 500 of the criminal procedure law
32 is amended to read as follows:
33 RECOGNIZANCE[, BAIL] AND
34 COMMITMENT--DEFINITIONS OF TERMS
35 § 20. Section 500.10 of the criminal procedure law, subdivisions 1, 2,
36 4, 5, 6, 7 and 9 as amended by section 1-e and subdivisions 21 and 22
37 as added by section 1-f of part JJJ of chapter 59 of the laws of 2019,
38 subdivision 3-a as amended and subdivision 3-b as added by section 1 of
39 part UU of chapter 56 of the laws of 2020, subdivision 3-c as added by
40 section 1 of subpart F of part UU of chapter 56 of the laws of 2022,
41 subdivision 16 as further amended by section 104 of part A of chapter 62
42 of the laws of 2011, paragraph (b) of subdivision 17 as amended by chap-
43 ter 305 of the laws of 2011, is amended to read as follows:
44 § 500.10 Recognizance[, bail] and commitment; definitions of terms.
45 As used in this title, and in this chapter generally, the following
46 terms have the following meanings:
47 1. "Principal" means a defendant in a criminal action or proceeding,
48 or a person adjudged a material witness therein, or any other person so
49 involved therein that the principal may by law be compelled to appear
50 before a court for the purpose of having such court exercise control
51 over the principal's person to secure the principal's future attendance
52 at the action or proceeding when required, and who in fact either is
53 before the court for such purpose or has been before it and been
54 subjected to such control.
55 2. "Release on own recognizance." A court releases a principal on the
56 principal's own recognizance when, having acquired control over the
S. 5973 8
1 principal's person, it permits the principal to be at liberty during the
2 pendency of the criminal action or proceeding involved upon condition
3 that the principal will appear thereat whenever the principal's attend-
4 ance may be required and will at all times render the principal amenable
5 to the orders and processes of the court.
6 3. ["Fix bail." A court fixes bail when, having acquired control over
7 the person of a principal, it designates a sum of money and stipulates
8 that, if bail in such amount is posted on behalf of the principal and
9 approved, it will permit him to be at liberty during the pendency of the
10 criminal action or proceeding involved.
11 3-a.] "Release under non-monetary conditions." A court releases a
12 principal under non-monetary conditions when, having acquired control
13 over a person, it authorizes the person to be at liberty during the
14 pendency of the criminal action or proceeding involved under conditions
15 ordered by the court, which shall be the least restrictive conditions
16 that will reasonably assure the principal's return to court and reason-
17 ably assure the principal's compliance with court conditions. A princi-
18 pal shall not be required to pay for any part of the cost of release on
19 non-monetary conditions. Such conditions may include, among other condi-
20 tions reasonable under the circumstances:
21 (a) that the principal be in contact with a pretrial services agency
22 serving principals in that county;
23 (b) that the principal abide by reasonable, specified restrictions on
24 travel that are reasonably related to an actual risk of flight from the
25 jurisdiction, or that the principal surrender his or her passport;
26 (c) that the principal refrain from possessing a firearm, destructive
27 device or other dangerous weapon;
28 (d) that, when it is shown pursuant to subdivision four of section
29 510.45 of this title that no other realistic non-monetary condition or
30 set of non-monetary conditions will suffice to reasonably assure the
31 person's return to court, the person be placed in reasonable pretrial
32 supervision with a pretrial services agency serving principals in that
33 county;
34 (e) that the principal refrain from associating with certain persons
35 who are connected with the instant charge, including, when appropriate,
36 specified victims, witnesses, or co-defendants;
37 (f) that the principal be referred to a pretrial services agency for
38 placement in mandatory programming, including counseling, treatment, and
39 intimate partner violence intervention programs. Where applicable, the
40 court may direct the principal be removed to a hospital pursuant to
41 section 9.43 of the mental hygiene law;
42 (g) that the principal make diligent efforts to maintain employment,
43 housing, or enrollment in school or educational programming;
44 (h) that the principal obey an order of protection issued by the
45 court, including an order issued pursuant to section 530.11 of this
46 title;
47 (i) that the principal obey conditions set by the court addressed to
48 the safety of a victim of a family offense as defined in section 530.11
49 of this title including conditions that may be requested by or on behalf
50 of the victim; and
51 (j) that, when it is shown pursuant to paragraph (a) of subdivision
52 four of section 510.40 of this title that no other realistic non-mone-
53 tary condition or set of non-monetary conditions will suffice to reason-
54 ably assure the principal's return to court, the principal's location be
55 monitored with an approved electronic monitoring device, in accordance
56 with such subdivision four of section 510.40 of this title.
S. 5973 9
1 [3-b.] 4. Subdivision [three-a] three of this section presents a non-
2 exclusive list of conditions that may be considered and imposed by law,
3 singularly or in combination, when reasonable under the circumstances of
4 the defendant, the case, and the situation of the defendant. The court
5 need not necessarily order one or more specific conditions first before
6 ordering one or more or additional conditions.
7 [3-c.] 5. (a) "Release for mental health assessment and evaluation."
8 When a principal appearing before the court appears, by clear and
9 convincing evidence, to be mentally ill at the present moment such that
10 if left unattended their conduct may result in harm to himself or
11 herself or others, the court may: order as a condition of release under
12 supervision that the principal seek a voluntary psychiatric assessment
13 under section 9.13 of the mental hygiene law if the principal has a
14 recently documented history of mental illness or psychiatric hospitali-
15 zation, and the defense consents to the assessment.
16 (b) "Involuntary assessment pending release." When a principal appear-
17 ing before the court appears, by clear and convincing evidence, to be
18 mentally ill at the present moment such that if left unattended their
19 conduct may result in immediate serious harm to himself or herself or
20 others, the court may order as a condition of release under supervision
21 that the principal be taken by an entity, including but not limited to,
22 pretrial services agencies, or another qualified provider, to a local
23 hospital for immediate psychiatric assessment involuntarily under
24 section 9.43 of the mental hygiene law if the principal is conducting
25 himself or herself before the court, in such a manner which in a person
26 who is not mentally ill would be deemed disorderly conduct which is
27 likely to result in immediate serious harm to himself or herself or
28 others. The court is also authorized to request peace officers, when
29 acting pursuant to their special duties, or police officers, who are
30 members of an authorized police department or force or of a sheriff's
31 department, to take into custody and transport such person to a hospital
32 for determination by the director of community services when such person
33 qualifies for admission pursuant to this section. The court may author-
34 ize an ambulance service, as defined by subdivision two of section three
35 thousand one of the public health law, to transport such person to any
36 hospital specified in subdivision (a) of section 9.39 of the mental
37 hygiene law or any comprehensive psychiatric emergency program specified
38 in subdivision (a) of section 9.40 of the mental hygiene law, that is
39 willing to receive such person. Upon removal, there shall be a determi-
40 nation made by the director of such hospital or program whether such
41 person should be retained therein pursuant to section 9.39 of the mental
42 hygiene law. If the principal is hospitalized, at the time of release
43 the hospital shall complete a discharge plan with linkages to communi-
44 ty-based mental health treatment, including services that are provided
45 after the individual has stabilized, if applicable and other community-
46 based services as may be deemed necessary and appropriate and notify
47 pretrial services agencies and the defense counsel of the person's
48 discharge. Pretrial services agencies are responsible for ensuring
49 continuity of care for the principal in the community.
50 (c) "Pretrial services." Pretrial services agencies shall be required,
51 upon the request of the court to provide a summary of the assessment,
52 limited to necessary and relevant information relating to the princi-
53 pal's completion of an assessment and evaluation, placement, treatment,
54 and discharge from the hospital solely for the purpose of ensuring
55 compliance with the conditions of release and in accordance with any
S. 5973 10
1 applicable state and federal confidentiality laws. Conditions of release
2 may not be revoked solely based on noncompliance with treatment.
3 (d) "Confidential." Any clinical record produced as a part of the
4 assessment, services or treatment plans required pursuant to this subdi-
5 vision shall be considered confidential and shall not be considered part
6 of the public record, and access to such records shall be limited in
7 accordance with applicable federal and state privacy laws. Such informa-
8 tion shall not be used as part of the criminal proceeding and shall be
9 expunged upon the resolution of the case.
10 (e) "Referral." Courts shall refer the principal, where appropriate,
11 to a judicial diversion program as defined in section 216.00 of this
12 chapter or to any other appropriate treatment court.
13 [4.] 6. "Commit to the custody of the sheriff." A court commits a
14 principal to the custody of the sheriff when, having acquired control
15 over the principal's person, it orders that the principal be confined in
16 the custody of the sheriff during the pendency of the criminal action or
17 proceeding involved.
18 [5.] 7. "Securing order" means an order of a court committing a prin-
19 cipal to the custody of the sheriff [or fixing bail, where authorized,]
20 or releasing the principal on the principal's own recognizance or
21 releasing the principal under non-monetary conditions.
22 [6.] 8. "Order of recognizance or [bail] non-monetary conditions"
23 means a securing order releasing a principal on the principal's own
24 recognizance or under non-monetary conditions [or, where authorized,
25 fixing bail].
26 [7.] 9. "Application for recognizance or [bail] non-monetary condi-
27 tions" means an application by a principal that the court, instead of
28 committing the principal to or retaining the principal in the custody of
29 the sheriff, either release the principal on the principal's own recog-
30 nizance, or release under non-monetary conditions[, or, where author-
31 ized, fix bail].
32 [8. "Post bail" means to deposit bail in the amount and form fixed by
33 the court, with the court or with some other authorized public servant
34 or agency.
35 9. "Bail" means cash bail, a bail bond or money paid with a credit
36 card.
37 10. "Cash bail" means a sum of money, in the amount designated in an
38 order fixing bail, posted by a principal or by another person on his
39 behalf with a court or other authorized public servant or agency, upon
40 the condition that such money will become forfeit to the people of the
41 state of New York if the principal does not comply with the directions
42 of a court requiring his attendance at the criminal action or proceeding
43 involved or does not otherwise render himself amenable to the orders and
44 processes of the court.
45 11. "Obligor" means a person who executes a bail bond on behalf of a
46 principal and thereby assumes the undertaking described therein. The
47 principal himself may be an obligor.
48 12. "Surety" means an obligor who is not a principal.
49 13. "Bail bond" means a written undertaking, executed by one or more
50 obligors, that the principal designated in such instrument will, while
51 at liberty as a result of an order fixing bail and of the posting of the
52 bail bond in satisfaction thereof, appear in a designated criminal
53 action or proceeding when his attendance is required and otherwise
54 render himself amenable to the orders and processes of the court, and
55 that in the event that he fails to do so the obligor or obligors will
S. 5973 11
1 pay to the people of the state of New York a specified sum of money, in
2 the amount designated in the order fixing bail.
3 14. "Appearance bond" means a bail bond in which the only obligor is
4 the principal.
5 15. "Surety bond" means a bail bond in which the obligor or obligors
6 consist of one or more sureties or of one or more sureties and the prin-
7 cipal.
8 16. "Insurance company bail bond" means a surety bond, executed in the
9 form prescribed by the superintendent of financial services, in which
10 the surety-obligor is a corporation licensed by the superintendent of
11 financial services to engage in the business of executing bail bonds.
12 17. "Secured bail bond" means a bail bond secured by either:
13 (a) Personal property which is not exempt from execution and which,
14 over and above all liabilities and encumbrances, has a value equal to or
15 greater than the total amount of the undertaking; or
16 (b) Real property having a value of at least twice the total amount of
17 the undertaking. For purposes of this paragraph, value of real property
18 is determined by either:
19 (i) dividing the last assessed value of such property by the last
20 given equalization rate or in a special assessing unit, as defined in
21 article eighteen of the real property tax law, the appropriate class
22 ratio established pursuant to section twelve hundred two of such law of
23 the assessing municipality wherein the property is situated and by
24 deducting from the resulting figure the total amount of any liens or
25 other encumbrances upon such property; or
26 (ii) the value of the property as indicated in a certified appraisal
27 report submitted by a state certified general real estate appraiser duly
28 licensed by the department of state as provided in section one hundred
29 sixty-j of the executive law, and by deducting from the appraised value
30 the total amount of any liens or other encumbrances upon such property.
31 A lien report issued by a title insurance company licensed under article
32 sixty-four of the insurance law, that guarantees the correctness of a
33 lien search conducted by it, shall be presumptive proof of liens upon
34 the property.
35 18. "Partially secured bail bond" means a bail bond secured only by a
36 deposit of a sum of money not exceeding ten percent of the total amount
37 of the undertaking.
38 19. "Unsecured bail bond" means a bail bond, other than an insurance
39 company bail bond, not secured by any deposit of or lien upon property.
40 20.] 10. "Court" includes, where appropriate, a judge authorized to
41 act as described in a particular statute, though not as a court.
42 [21.] 11. "Qualifies for electronic monitoring," for purposes of
43 subdivision four of section 510.40 of this title, means a person charged
44 with a felony, a misdemeanor crime of domestic violence, a misdemeanor
45 defined in article one hundred thirty of the penal law, a crime and the
46 circumstances of paragraph (b) of subdivision two of section 530.60 of
47 this title apply, or any crime where such conduct arose while the prin-
48 cipal was released on his or her own recognizance, released under condi-
49 tions or had yet to be arraigned after the issuance of a desk appearance
50 ticket for a separate offense, or any misdemeanor where the defendant
51 stands previously convicted, within the past [five] ten years, of [ a
52 violent felony offense as defined in section 70.02 of the penal law] any
53 crime. For the purposes of this subdivision, in calculating such [five]
54 ten year period, any period of time during which the defendant was
55 incarcerated for any reason between the time of the commission of any
56 such previous crime and the time of commission of the present crime
S. 5973 12
1 shall be excluded and such [five] ten year period shall be extended by a
2 period or periods equal to the time served under such incarceration.
3 [22.] 12. "Misdemeanor crime of domestic violence," for purposes of
4 subdivision [twenty-one] eleven of this section, means a misdemeanor
5 under the penal law provisions and circumstances described in subdivi-
6 sion one of section 530.11 of this title.
7 § 21. The article heading of article 510 of the criminal procedure law
8 is amended to read as follows:
9 RECOGNIZANCE[, BAIL] AND COMMITMENT--
10 DETERMINATION OF APPLICATION FOR RECOGNIZANCE
11 [OR BAIL], ISSUANCE OF SECURING ORDERS, AND
12 RELATED MATTERS
13 § 22. Section 510.10 of the criminal procedure law, as amended by
14 section 2 of part JJJ of chapter 59 of the laws of 2019, subdivision 1
15 as amended by section 1 of subpart C of part UU of chapter 56 of the
16 laws of 2022, subdivision 4 as amended by section 2 of part UU of chap-
17 ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4 as
18 amended and paragraph (u) as added by section 2 of subpart B of part UU
19 of chapter 56 of the laws of 2022, is amended to read as follows:
20 § 510.10 Securing order; when required; alternatives available; standard
21 to be applied.
22 1. When a principal, whose future court attendance at a criminal
23 action or proceeding is or may be required, comes under the control of a
24 court, such court shall, in accordance with this title, by a securing
25 order release the principal on the principal's own recognizance, release
26 the principal under non-monetary conditions, [or, where authorized, fix
27 bail] or commit the principal to the custody of the sheriff. In all such
28 cases, except where another type of securing order is shown to be
29 required by law, the court shall release the principal pending trial on
30 the principal's own recognizance, unless it is demonstrated and the
31 court makes an individualized determination that the principal poses a
32 risk of flight to avoid prosecution or poses a danger to themselves,
33 another person or the community as a whole. [If such a finding is made,
34 the court must select the least restrictive alternative and condition or
35 conditions that will reasonably assure the principal's return to court.]
36 The court shall explain its choice of release, release with conditions,
37 [bail] or remand on the record or in writing. In making its determi-
38 nation, the court must consider and take into account available informa-
39 tion about the principal, including:
40 (a) The principal's character, reputation, habits, mental condition,
41 activities and history;
42 (b) If the principal is a defendant, the charges facing the principal
43 and the weight of the evidence against him or her in the pending crimi-
44 nal action and any other factor indicating the probability or improba-
45 bility of conviction;
46 (c) The principal's criminal conviction record if any;
47 (d) The principal's record of previous adjudication as a juvenile
48 delinquent, as retained pursuant to section 354.1 of the family court
49 act, or, of pending cases where fingerprints are retained pursuant to
50 section 306.1 of such act, or a youthful offender, if any;
51 (e) The principal's previous record in complying with court orders,
52 including orders to appear when required, or with respect to flight to
53 avoid criminal prosecution;
54 (f) [If monetary bail is authorized, according to the restrictions set
55 forth in this title, the principal's individual financial circumstances,
56 and, in cases where bail is authorized, the principal's ability to post
S. 5973 13
1 bail without posing undue hardship, as well as his or her ability to
2 obtain a secured, unsecured, or partially secured bond;
3 (g)] Any violation by the principal of an order of protection issued
4 by any court;
5 [(h)] (g) The principal's history of use or possession of a firearm;
6 [(i)] (h) Whether the charge is alleged to have caused serious harm to
7 an individual or group of individuals; and
8 [(j)] (i) If the principal is a defendant, in the case of an applica-
9 tion for a securing order pending appeal, the merit or lack of merit of
10 the appeal.
11 2. A principal is entitled to representation by counsel under this
12 chapter in preparing an application for release, when a securing order
13 is being considered and when a securing order is being reviewed for
14 modification, revocation or termination. If the principal is financially
15 unable to obtain counsel, counsel shall be assigned to the principal.
16 3. In cases other than as described in subdivision four or five of
17 this section the court shall release the principal pending trial on the
18 principal's own recognizance, unless the court finds on the record or in
19 writing that release on the principal's own recognizance will not
20 reasonably assure the principal's return to court. In such instances,
21 the court shall release the principal under non-monetary conditions[,
22 selecting the least restrictive alternative and conditions that will
23 reasonably assure the principal's return to court]. The court shall
24 explain its choice [of alternative and] conditions on the record or in
25 writing.
26 4. Where the principal stands charged with a [qualifying offense,]
27 felony, except a class E felony under title J or K of the penal law, or
28 a qualifying misdemeanor, or where the court has found that committing
29 the principal to the custody of the sheriff is warranted under subdivi-
30 sion five of this section, the court, unless otherwise prohibited by
31 law, may in its discretion release the principal pending trial on the
32 principal's own recognizance or under non-monetary conditions, [fix
33 bail], or, [where the defendant is charged with a qualifying offense
34 which is a felony, the court may] commit the principal to the custody of
35 the sheriff. A principal stands charged with a qualifying [offense]
36 misdemeanor for the purposes of this subdivision when he or she stands
37 charged with:
38 (a) [a felony enumerated in section 70.02 of the penal law, other than
39 robbery in the second degree as defined in subdivision one of section
40 160.10 of the penal law, provided, however, that burglary in the second
41 degree as defined in subdivision two of section 140.25 of the penal law
42 shall be a qualifying offense only where the defendant is charged with
43 entering the living area of the dwelling;
44 (b) a crime involving witness intimidation under section 215.15 of the
45 penal law;
46 (c) a crime involving witness tampering under section 215.11, 215.12
47 or 215.13 of the penal law;
48 (d) a class A felony defined in the penal law, provided that for class
49 A felonies under article two hundred twenty of the penal law, only class
50 A-I felonies shall be a qualifying offense;
51 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
52 the penal law, or a felony sex offense defined in section 70.80 of the
53 penal law, or a crime involving incest as defined in section 255.25,
54 255.26 or 255.27 of such law, or a misdemeanor defined in article one
55 hundred thirty of such law;
S. 5973 14
1 (f) conspiracy in the second degree as defined in section 105.15 of
2 the penal law, where the underlying allegation of such charge is that
3 the defendant conspired to commit a class A felony defined in article
4 one hundred twenty-five of the penal law;
5 (g) money laundering in support of terrorism in the first degree as
6 defined in section 470.24 of the penal law; money laundering in support
7 of terrorism in the second degree as defined in section 470.23 of the
8 penal law; money laundering in support of terrorism in the third degree
9 as defined in section 470.22 of the penal law; money laundering in
10 support of terrorism in the fourth degree as defined in section 470.21
11 of the penal law; or a felony crime of terrorism as defined in article
12 four hundred ninety of the penal law, other than the crime defined in
13 section 490.20 of such law;
14 (h) criminal contempt in the second degree as defined in subdivision
15 three of section 215.50 of the penal law, criminal contempt in the first
16 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
17 the penal law or aggravated criminal contempt as defined in section
18 215.52 of the penal law, and the underlying allegation of such charge of
19 criminal contempt in the second degree, criminal contempt in the first
20 degree or aggravated criminal contempt is that the defendant violated a
21 duly served order of protection where the protected party is a member of
22 the defendant's same family or household as defined in subdivision one
23 of section 530.11 of this title;
24 (i) facilitating a sexual performance by a child with a controlled
25 substance or alcohol as defined in section 263.30 of the penal law, use
26 of a child in a sexual performance as defined in section 263.05 of the
27 penal law or luring a child as defined in subdivision one of section
28 120.70 of the penal law, promoting an obscene sexual performance by a
29 child as defined in section 263.10 of the penal law or promoting a sexu-
30 al performance by a child as defined in section 263.15 of the penal law;
31 (j) any crime that is alleged to have caused the death of another
32 person;
33 (k) criminal obstruction of breathing or blood circulation as defined
34 in section 121.11 of the penal law, strangulation in the second degree
35 as defined in section 121.12 of the penal law or unlawful imprisonment
36 in the first degree as defined in section 135.10 of the penal law, and
37 is alleged to have committed the offense against a member of the defend-
38 ant's same family or household as defined in subdivision one of section
39 530.11 of this title;
40 (l) aggravated vehicular assault as defined in section 120.04-a of the
41 penal law or vehicular assault in the first degree as defined in section
42 120.04 of the penal law;
43 (m) assault in the third degree as defined in section 120.00 of the
44 penal law or arson in the third degree as defined in section 150.10 of
45 the penal law, when such crime is charged as a hate crime as defined in
46 section 485.05 of the penal law;
47 (n) aggravated assault upon a person less than eleven years old as
48 defined in section 120.12 of the penal law or criminal possession of a
49 weapon on school grounds as defined in section 265.01-a of the penal
50 law;
51 (o) grand larceny in the first degree as defined in section 155.42 of
52 the penal law, enterprise corruption as defined in section 460.20 of the
53 penal law, or money laundering in the first degree as defined in section
54 470.20 of the penal law;
55 (p) failure to register as a sex offender pursuant to section one
56 hundred sixty-eight-t of the correction law or endangering the welfare
S. 5973 15
1 of a child as defined in subdivision one of section 260.10 of the penal
2 law, where the defendant is required to maintain registration under
3 article six-C of the correction law and designated a level three offen-
4 der pursuant to subdivision six of section one hundred sixty-eight-l of
5 the correction law;
6 (q) a crime involving bail jumping under section 215.55, 215.56 or
7 215.57 of the penal law, or a crime involving escaping from custody
8 under section 205.05, 205.10 or 205.15 of the penal law;
9 (r) any felony offense committed by the principal while serving a
10 sentence of probation or while released to post release supervision;
11 (s) a felony, where the defendant qualifies for sentencing on such
12 charge as a persistent felony offender pursuant to section 70.10 of the
13 penal law;
14 (t) any felony or class A misdemeanor involving harm to an identifi-
15 able person or property, or any charge of criminal possession of a
16 firearm as defined in section 265.01-b of the penal law, where such
17 charge arose from conduct occurring while the defendant was released on
18 his or her own recognizance, released under conditions, or had yet to be
19 arraigned after the issuance of a desk appearance ticket for a separate
20 felony or class A misdemeanor involving harm to an identifiable person
21 or property, or any charge of criminal possession of a firearm as
22 defined in section 265.01-b of the penal law, provided, however, that
23 the prosecutor must show reasonable cause to believe that the defendant
24 committed the instant crime and any underlying crime. For the purposes
25 of this subparagraph, any of the underlying crimes need not be a quali-
26 fying offense as defined in this subdivision. For the purposes of this
27 paragraph, "harm to an identifiable person or property" shall include
28 but not be limited to theft of or damage to property. However, based
29 upon a review of the facts alleged in the accusatory instrument, if the
30 court determines that such theft is negligible and does not appear to be
31 in furtherance of other criminal activity, the principal shall be
32 released on his or her own recognizance or under appropriate non-mone-
33 tary conditions; or
34 (u) criminal possession of a weapon in the third degree as defined in
35 subdivision three of section 265.02 of the penal law or criminal sale of
36 a firearm to a minor as defined in section 265.16 of the penal law]
37 witness tampering in the fourth degree as defined in section 215.10 of
38 the penal law;
39 (b) a misdemeanor under article one hundred thirty of the penal law;
40 (c) conspiracy in the fifth degree as defined in section 105.05 of the
41 penal law where the underlying allegations of such charge is that the
42 defendant conspired to commit a felony or misdemeanor that otherwise
43 qualifies for bail;
44 (d) criminal contempt in the second degree as defined in subdivision
45 three of section 215.50 of the penal law;
46 (e) a specified offense enumerated in subdivision two of section
47 240.75 of the penal law where such offense is alleged to have been
48 committed against a member of the defendant's same family or household
49 as defined in subdivision one of section 530.11 of this title;
50 (f) any misdemeanor when such crime is charged as a hate crime as
51 defined in section 485.05 of the penal law;
52 (g) bail jumping in the third degree as defined in section 215.55 of
53 the penal law;
54 (h) escape in the third degree as defined in section 205.05 of the
55 penal law;
S. 5973 16
1 (i) any misdemeanor involving intentionally causing harm to another
2 person or an animal;
3 (j) any misdemeanor involving the use and possession of a firearm,
4 shotgun or rifle;
5 (k) any class A misdemeanor where such charge arose from conduct while
6 the defendant was released on his or her own recognizance, released
7 under conditions or had yet to be arraigned after the issuance of a desk
8 appearance ticket for a separate offense;
9 (l) any other offense that the division of criminal justice services
10 has identified pursuant to article fifty of the executive law.
11 5. [Notwithstanding the provisions of subdivisions three and four of
12 this section, with respect to any charge for which bail or remand is not
13 ordered, and for which the court would not or could not otherwise
14 require bail or remand, a defendant may, at any time, request that the
15 court set bail in a nominal amount requested by the defendant in the
16 form specified in paragraph (a) of subdivision one of section 520.10 of
17 this title; if the court is satisfied that the request is voluntary, the
18 court shall set such bail in such amount] Where a defendant is charged
19 with an offense that does not qualify for pretrial detention under
20 subdivision four of this section, the court may commit the principal to
21 the custody of the sheriff if the court makes an individualized determi-
22 nation that the principal poses a substantial risk of harm to them-
23 selves, others or the community as a whole, or where the court deter-
24 mines that the defendant has an established history of disobeying
25 directives of the court.
26 (a) The court may consider the following factors when determining
27 whether a principal poses a risk of harm:
28 (i) the nature of the principal's prior convictions, including whether
29 the principal has been convicted of any violent felonies listed in
30 section 70.02 of the penal law;
31 (ii) the principal's access to weapons;
32 (iii) whether the principal has any association with a criminal street
33 gang, as defined in section 10-170 of the administrative code of the
34 city of New York or a criminal enterprise, as defined in section 460.10
35 of the penal law; and
36 (iv) any history of threats or intimidation to witnesses in prior
37 criminal proceedings.
38 (b) The court may consider the following factors when determining
39 whether a principal has an established history of disobeying directives
40 of the court:
41 (i) any history of bench warrants failures to appear;
42 (ii) previous violation of orders of protection;
43 (iii) any history of rearrests while other charges are pending; and
44 (iv) any history of witness intimidation or tampering.
45 6. When a securing order is revoked or otherwise terminated in the
46 course of an uncompleted action or proceeding but the principal's future
47 court attendance still is or may be required and the principal is still
48 under the control of a court, a new securing order must be issued. When
49 the court revokes or otherwise terminates a securing order which commit-
50 ted the principal to the custody of the sheriff, the court shall give
51 written notification to the sheriff of such revocation or termination of
52 the securing order.
53 § 23. Section 510.20 of the criminal procedure law, as amended by
54 section 3 of part JJJ of chapter 59 of the laws of 2019, is amended to
55 read as follows:
S. 5973 17
1 1. Upon any occasion when a court has issued a securing order with
2 respect to a principal and the principal is confined in the custody of
3 the sheriff as a result of the securing order or a previously issued
4 securing order, the principal may make an application for recogni-
5 zance[,] or release under non-monetary conditions [or bail].
6 2. (a) The principal is entitled to representation by counsel in the
7 making and presentation of such application. If the principal is finan-
8 cially unable to obtain counsel, counsel shall be assigned to the prin-
9 cipal.
10 (b) Upon such application, the principal must be accorded an opportu-
11 nity to be heard, present evidence and to contend that an order of
12 recognizance[,] or release under non-monetary conditions [or, where
13 authorized, bail] must or should issue, that the court should release
14 the principal on the principal's own recognizance or under non-monetary
15 conditions [rather than fix bail, and that if bail is authorized and
16 fixed it should be in a suggested amount and form].
17 § 24. Subdivision 1 of section 510.30 of the criminal procedure law,
18 as amended by section 2 of subpart C of part UU of chapter 56 of the
19 laws of 2022, is amended to read as follows:
20 1. With respect to any principal, [the court in all cases, unless
21 otherwise provided by law, must impose the least restrictive] must
22 consider the kind and degree of control or restriction that is necessary
23 to secure the principal's return to court when required or mitigate the
24 risk of danger to the principal, another person or the community. In
25 determining that matter, the court must, on the basis of available
26 information, consider and take into account information about the prin-
27 cipal that is relevant to the principal's return to court, including:
28 (a) The principal's character, reputation, habits, mental condition,
29 activities and history;
30 (b) If the principal is a defendant, the charges facing the principal
31 and the weight of the evidence against him or her in the pending crimi-
32 nal action and any other factor indicating the probability or improba-
33 bility of conviction;
34 (c) The principal's criminal conviction record if any;
35 (d) The principal's record of previous adjudication as a juvenile
36 delinquent, as retained pursuant to section 354.2 of the family court
37 act, or, of pending cases where fingerprints are retained pursuant to
38 section 306.1 of such act, or a youthful offender, if any;
39 (e) The principal's previous record in complying with court orders,
40 including orders to appear when required, or with respect to flight to
41 avoid criminal prosecution;
42 (f) [If monetary bail is authorized, according to the restrictions set
43 forth in this title, the principal's individual financial circumstances,
44 and, in cases where bail is authorized, the principal's ability to post
45 bail without posing undue hardship, as well as his or her ability to
46 obtain a secured, unsecured, or partially secured bond;
47 (g)] Any violation by the principal of an order of protection issued
48 by any court;
49 [(h)] (g) The principal's history of use or possession of a firearm;
50 [(i)] (h) Whether the charge is alleged to have caused serious harm to
51 an individual or group of individuals; and
52 [(j)] (i) If the principal is a defendant, in the case of an applica-
53 tion for a securing order pending appeal, the merit or lack of merit of
54 the appeal.
55 § 25. Section 510.40 of the criminal procedure law, as amended by
56 section 6 of part JJJ of chapter 59 of the laws of 2019, paragraph (c)
S. 5973 18
1 of subdivision 4 as amended by section 7 of part UU of chapter 56 of the
2 laws of 2020, is amended to read as follows:
3 § 510.40 Court notification to principal of conditions of release and of
4 alleged violations of conditions of release.
5 1. Upon ordering that a principal be released on the principal's own
6 recognizance[,] or released under non-monetary conditions, [or, if bail
7 has been fixed, upon the posting of bail,] the court must direct the
8 principal to appear in the criminal action or proceeding involved when-
9 ever the principal's attendance may be required and to be at all times
10 amenable to the orders and processes of the court. If such principal is
11 in the custody of the sheriff [or at liberty upon bail] at the time of
12 the order, the court must direct that the principal be discharged from
13 such [custody or, as the case may be, that the principal's bail be exon-
14 erated].
15 2. [Upon the issuance of an order fixing bail, where authorized, and
16 upon the posting thereof, the court must examine the bail to determine
17 whether it complies with the order. If it does, the court must, in the
18 absence of some factor or circumstance which in law requires or author-
19 izes disapproval thereof, approve the bail and must issue a certificate
20 of release, authorizing the principal to be at liberty, and, if the
21 principal is in the custody of the sheriff at the time, directing the
22 sheriff to discharge the principal therefrom. If the bail fixed is not
23 posted, or is not approved after being posted, the court must order that
24 the principal be committed to the custody of the sheriff. In the event
25 of any such non-approval, the court shall explain promptly in writing
26 the reasons therefor.
27 3.] Non-monetary conditions of release shall be individualized and
28 established in writing by the court. At future court appearances, the
29 court shall consider a lessening of conditions or modification of condi-
30 tions to a less burdensome form based on the principal's compliance with
31 such conditions of release. In the event of alleged non-compliance with
32 the conditions of release in an important respect, pursuant to this
33 subdivision, additional conditions may be imposed by the court, on the
34 record or in writing, only after notice of the facts and circumstances
35 of such alleged non-compliance, reasonable under the circumstances,
36 affording the principal and the principal's attorney and the people an
37 opportunity to present relevant, admissible evidence, relevant witnesses
38 and to cross-examine witnesses, and a finding by clear and convincing
39 evidence that the principal violated a condition of release in an impor-
40 tant respect. Following such a finding, in determining whether to impose
41 additional conditions for non-compliance, the court shall consider and
42 may select conditions [consistent with the court's obligation to impose
43 the least restrictive condition or conditions] that will reasonably
44 assure the defendant's return to court or mitigate the risk of danger to
45 the principal, another person or the community. The court shall explain
46 on the record or in writing the reasons for its determination and for
47 any changes to the conditions imposed.
48 [4.] 3. (a) Electronic monitoring of a principal's location may be
49 ordered only if the court finds, after notice, an opportunity to be
50 heard and an individualized determination explained on the record or in
51 writing, that the defendant qualifies for electronic monitoring in
52 accordance with subdivision [twenty-one] eleven of section 500.10 of
53 this title, and no other realistic non-monetary condition or set of
54 non-monetary conditions will suffice to reasonably assure a principal's
55 return to court.
S. 5973 19
1 (b) The specific method of electronic monitoring of the principal's
2 location must be approved by the court. [It must be the least restric-
3 tive procedure and method that will reasonably assure the principal's
4 return to court, and unobtrusive to the greatest extent practicable] In
5 determining what method or procedure to approve, the court must consider
6 those methods or procedures which will reasonably assure the principal's
7 return to court or mitigate the risk of danger to the principal, another
8 person or the community.
9 (c) Electronic monitoring of the location of a principal may be
10 conducted only by a public entity under the supervision and control of a
11 county or municipality or a non-profit entity under contract to the
12 county, municipality or the state. A county or municipality shall be
13 authorized to enter into a contract with another county or municipality
14 in the state to monitor principals under non-monetary conditions of
15 release in its county, but counties, municipalities and the state shall
16 not contract with any private for-profit entity for such purposes.
17 Counties, municipalities and the state may contract with a private for-
18 profit entity to supply electronic monitoring devices or other items,
19 provided that any interaction with persons under electronic monitoring
20 or the data produced by such monitoring shall be conducted solely by
21 employees of a county, municipality, the state, or a non-profit entity
22 under contract with such county, municipality or the state.
23 [(d) Electronic monitoring of a principal's location may be for a
24 maximum period of sixty days, and may be renewed for such period, after
25 notice, an opportunity to be heard and a de novo, individualized deter-
26 mination in accordance with this subdivision, which shall be explained
27 on the record or in writing.
28 A defendant subject to electronic location monitoring under this
29 subdivision shall be considered held or confined in custody for purposes
30 of section 180.80 of this chapter and shall be considered committed to
31 the custody of the sheriff for purposes of section 170.70 of the chap-
32 ter, as applicable.]
33 [5.] 4. If a principal is released under non-monetary conditions, the
34 court shall, on the record and in an individualized written document
35 provided to the principal, notify the principal, in plain language and a
36 manner sufficiently clear and specific:
37 (a) of any conditions to which the principal is subject, to serve as a
38 guide for the principal's conduct; and
39 (b) that the possible consequences for violation of such a condition
40 may include revocation of the securing order and the ordering of a more
41 restrictive securing order.
42 § 26. Section 510.45 of the criminal procedure law, as added by
43 section 8 of part JJJ of chapter 59 of the laws of 2019, is amended to
44 read as follows:
45 § 510.45 Pretrial services agencies.
46 1. The office of court administration shall certify and regularly
47 review for recertification one or more pretrial services agencies in
48 each county to monitor principals released under non-monetary condi-
49 tions. Such office shall maintain a listing on its public website iden-
50 tifying by county each pretrial services agency so certified in the
51 state.
52 2. Every such agency shall be a public entity under the supervision
53 and control of a county or municipality or a non-profit entity under
54 contract to the county, municipality or the state. A county or munici-
55 pality shall be authorized to enter into a contract with another county
56 or municipality in the state to monitor principals under non-monetary
S. 5973 20
1 conditions of release in its county, but counties, municipalities and
2 the state shall not contract with any private for-profit entity for such
3 purposes.
4 3. (a) Any questionnaire, instrument or tool used with a principal in
5 the process of considering or determining the principal's possible
6 release on recognizance[,] or release under non-monetary conditions [or
7 on bail,] or used with a principal in the process of considering or
8 determining a condition or conditions of release or monitoring by a
9 pretrial services agency, shall be promptly made available to the prin-
10 cipal and the principal's counsel upon written request. Any such blank
11 form questionnaire, instrument or tool regularly used in the county for
12 such purpose or a related purpose shall be made available to any person
13 promptly upon request.
14 (b) Any such questionnaire, instrument or tool used to inform determi-
15 nations on release or conditions of release shall be:
16 (i) designed and implemented in a way that ensures the results are
17 free from discrimination on the basis of race, national origin, sex, or
18 any other protected class; and
19 (ii) empirically validated and regularly revalidated, with such vali-
20 dation and revalidation studies and all underlying data, except personal
21 identifying information for any defendant, publicly available upon
22 request.
23 4.[ Supervision by a pre-trial services agency may be ordered as a
24 non-monetary condition pursuant to this title only if the court finds,
25 after notice, an opportunity to be heard and an individualized determi-
26 nation explained on the record or in writing, that no other realistic
27 non-monetary condition or set of non-monetary conditions will suffice to
28 reasonably assure the principal's return to court.
29 5.] Each pretrial service agency certified by the office of court
30 administration pursuant to this section shall at the end of each year
31 prepare and file with such office an annual report, which the office
32 shall compile, publish on its website and make available upon request to
33 members of the public. Such reports shall not include any personal iden-
34 tifying information for any individual defendants. Each such report, in
35 addition to other relevant information, shall set forth, disaggregated
36 by each county served:
37 (a) the number of defendants supervised by the agency;
38 (b) the length of time (in months) each such person was supervised by
39 the agency prior to acquittal, dismissal, release on recognizance, revo-
40 cation of release on conditions, and sentencing;
41 (c) the race, ethnicity, age and sex of each person supervised;
42 (d) the crimes with which each person supervised was charged;
43 (e) the number of persons supervised for whom release conditions were
44 modified by the court, describing generally for each person or group of
45 persons the type and nature of the condition or conditions added or
46 removed;
47 (f) the number of persons supervised for whom release under conditions
48 was revoked by the court, and the basis for such revocations; and
49 (g) the court disposition in each supervised case, including sentenc-
50 ing information.
51 § 27. Subdivision 1 of section 510.50 of the criminal procedure law,
52 as amended by section 9 of part JJJ of chapter 59 of the laws of 2019,
53 is amended to read as follows:
54 1. When the attendance of a principal confined in the custody of the
55 sheriff is required at the criminal action or proceeding at a particular
56 time and place, the court may compel such attendance by directing the
S. 5973 21
1 sheriff to produce the principal at such time and place. If the princi-
2 pal is at liberty on the principal's own recognizance or non-monetary
3 conditions [or on bail], the principal's attendance may be achieved or
4 compelled by various methods, including notification and the issuance of
5 a bench warrant, prescribed by law in provisions governing such matters
6 with respect to the particular kind of action or proceeding involved.
7 § 28. Article 520 of the criminal procedure law is REPEALED.
8 § 29. The article heading of article 530 of the criminal procedure law
9 is amended to read as follows:
10 [ORDERS OF RECOGNIZANCE OR BAIL] SECURING ORDERS
11 WITH RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS
12 AND PROCEEDINGS--WHEN AND BY WHAT
13 COURTS AUTHORIZED
14 § 30. Section 530.10 of the criminal procedure law, as amended by
15 section 11 of part JJJ of chapter 59 of the laws of 2019, is amended to
16 read as follows:
17 § 530.10 Order of recognizance release under non-monetary conditions [or
18 bail]; in general.
19 Under circumstances prescribed in this article, a court, upon applica-
20 tion of a defendant charged with or convicted of an offense, is required
21 to issue a securing order for such defendant during the pendency of
22 either:
23 1. A criminal action based upon such charge; or
24 2. An appeal taken by the defendant from a judgment of conviction or a
25 sentence or from an order of an intermediate appellate court affirming
26 or modifying a judgment of conviction or a sentence.
27 § 31. The opening paragraph of subdivision 1 and subdivisions 9 and 11
28 of section 530.12 of the criminal procedure law, the opening paragraph
29 of subdivision 1 as amended by chapter 526 of the laws of 2013, subdivi-
30 sion 9 as amended by section 81 of subpart B of part C of chapter 62 of
31 the laws of 2011, subdivision 11 as amended by section 15 of part JJJ of
32 chapter 59 of the laws of 2019, are amended to read as follows:
33 When a criminal action is pending involving a complaint charging any
34 crime or violation between spouses, former spouses, parent and child, or
35 between members of the same family or household, as members of the same
36 family or household are defined in subdivision one of section 530.11 of
37 this article, the court, in addition to any other powers conferred upon
38 it by this chapter may issue a temporary order of protection in conjunc-
39 tion with any securing order committing the defendant to the custody of
40 the sheriff or as a condition of any order of recognizance or [bail]
41 release under non-monetary conditions or an adjournment in contemplation
42 of dismissal.
43 9. If no warrant, order or temporary order of protection has been
44 issued by the court, and an act alleged to be a family offense as
45 defined in section 530.11 of this [chapter] article is the basis of the
46 arrest, the magistrate shall permit the complainant to file a petition,
47 information or accusatory instrument and for reasonable cause shown,
48 shall thereupon hold such respondent or defendant, admit to, [fix or
49 accept bail,] or parole him or her for hearing before the family court
50 or appropriate criminal court as the complainant shall choose in accord-
51 ance with the provisions of section 530.11 of this [chapter] article.
52 11. If a defendant is brought before the court for failure to obey any
53 lawful order issued under this section, or an order of protection issued
54 by a court of competent jurisdiction in another state, territorial or
55 tribal jurisdiction, and if, after hearing, the court is satisfied by
S. 5973 22
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 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 § 32. Subdivision 8 of section 530.13 of the criminal procedure law,
20 as added by chapter 388 of the laws of 1984, paragraph (a) as amended by
21 section 13 of part JJJ of chapter 59 of the laws of 2019, is amended to
22 read as follows:
23 8. If a defendant is brought before the court for failure to obey any
24 lawful order issued under this section and if, after hearing, the court
25 is satisfied by competent proof that the defendant has willfully failed
26 to obey any such order, the court may:
27 (a) revoke an order of recognizance[,] or release under non-monetary
28 conditions [or bail] and commit the defendant to custody; or
29 (b) restore the case to the calendar when there has been an adjourn-
30 ment in contemplation of dismissal and commit the defendant to custody
31 [or impose or increase bail] pending a trial of the original crime or
32 violation; or
33 (c) revoke a conditional discharge in accordance with section 410.70
34 of this chapter and impose probation supervision or impose a sentence of
35 imprisonment in accordance with the penal law based on the original
36 conviction; or
37 (d) revoke probation in accordance with section 410.70 of this chapter
38 and impose a sentence of imprisonment in accordance with the penal law
39 based on the original conviction. In addition, if the act which consti-
40 tutes the violation of the order of protection or temporary order of
41 protection is a crime or a violation the defendant may be charged with
42 and tried for that crime or violation.
43 § 33. Section 530.20 of the criminal procedure law, as amended by
44 section 16 of part JJJ of chapter 59 of the laws of 2019, paragraph (a)
45 of subdivision 1 as amended by section 3, subparagraphs (xix) and (xx)
46 of paragraph (b) of subdivision 1 as amended and subparagraph (xxi) of
47 paragraph (b) of subdivision 1 as added by section 4 of subpart C of
48 part UU of chapter 56 of the laws of 2022, paragraph (b) of subdivision
49 1 as amended by section 3 of part UU of chapter 56 of the laws of 2020,
50 is amended to read as follows:
51 § 530.20 Securing order by local criminal court when action is pending
52 therein.
53 When a criminal action is pending in a local criminal court, such
54 court, upon application of a defendant, shall proceed as follows:
55 1. (a) In cases other than as described in paragraph (b) of this
56 subdivision the court shall release the principal pending trial on the
S. 5973 23
1 principal's own recognizance, unless [the court finds on the record or
2 in writing that release on the principal's own recognizance will not
3 reasonably assure the principal's return to court] it is demonstrated
4 and the court makes an individualized determination that the principal
5 poses a risk of flight to avoid prosecution or poses a danger to them-
6 selves, another person or the community as a whole. [In such instances,
7 the court shall release the principal under non-monetary conditions,
8 selecting the least restrictive alternative and conditions that will
9 reasonably assure the principal's return to court.] The court shall
10 explain its choice of alternative and conditions on the record or in
11 writing. In making its determination, the court must consider and take
12 into account available information about the principal, including:
13 (i) the principal's character, reputation, habits, mental condition,
14 activities and history;
15 (ii) if the principal is a defendant, the charges facing the principal
16 and the weight of the evidence against him or her in the pending crimi-
17 nal action and any other factor indicating the probability or improba-
18 bility of conviction;
19 (iii) the principal's criminal conviction record if any;
20 (iv) the principal's record of previous adjudication as a juvenile
21 delinquent, as retained pursuant to section 354.1 of the family court
22 act, or of pending cases where fingerprints are retained pursuant to
23 section 306.1 of such act, or a youthful offender, if any;
24 (v) the principal's previous record in complying with court orders,
25 including orders to appear when required, or with respect to flight to
26 avoid criminal prosecution;
27 (vi) [if monetary bail is authorized, according to the restrictions
28 set forth in this title, the principal's individual financial circum-
29 stances, and, in cases where bail is authorized, the principal's ability
30 to post bail without posing undue hardship, as well as his or her abili-
31 ty to obtain a secured, unsecured, or partially secured bond;
32 (vii)] any violation by the principal of an order of protection issued
33 by any court;
34 [(viii)] (vii) the principal's history and use or possession of a
35 firearm;
36 [(ix)] (viii) whether the charge is alleged to have caused serious
37 harm to an individual or group of individuals; and
38 [(x)] (ix) if the principal is a defendant, in the case of an applica-
39 tion for a securing order pending appeal, the merit or lack of merit of
40 the appeal.
41 (b) Where the principal stands charged with [a qualifying offense] a
42 felony, except a class E felony under title J or K of the penal law, or
43 a qualifying misdemeanor, or where the court has found that committing
44 the principal to the custody of the sheriff is warranted under subdivi-
45 sion two of this section, the court[,] unless otherwise prohibited [by
46 law,] may in its discretion release the principal pending trial on the
47 principal's own recognizance or under non-monetary conditions, [fix
48 bail,] or, where the defendant is charged with a qualifying offense
49 which is a felony, the court may commit the principal to the custody of
50 the sheriff. The court shall explain its choice of release, release with
51 conditions, [bail] or remand on the record or in writing. A principal
52 stands charged with a qualifying offense when he or she stands charged
53 with:
54 (i) [a felony enumerated in section 70.02 of the penal law, other than
55 robbery in the second degree as defined in subdivision one of section
56 160.10 of the penal law, provided, however, that burglary in the second
S. 5973 24
1 degree as defined in subdivision two of section 140.25 of the penal law
2 shall be a qualifying offense only where the defendant is charged with
3 entering the living area of the dwelling;
4 (ii) a crime involving witness intimidation under section 215.15 of
5 the penal law;
6 (iii) a crime involving witness tampering under section 215.11, 215.12
7 or 215.13 of the penal law;
8 (iv) a class A felony defined in the penal law, provided, that for
9 class A felonies under article two hundred twenty of such law, only
10 class A-I felonies shall be a qualifying offense;
11 (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
12 the penal law, or a felony sex offense defined in section 70.80 of the
13 penal law or a crime involving incest as defined in section 255.25,
14 255.26 or 255.27 of such law, or a misdemeanor defined in article one
15 hundred thirty of such law;
16 (vi) conspiracy in the second degree as defined in section 105.15 of
17 the penal law, where the underlying allegation of such charge is that
18 the defendant conspired to commit a class A felony defined in article
19 one hundred twenty-five of the penal law;
20 (vii) money laundering in support of terrorism in the first degree as
21 defined in section 470.24 of the penal law; money laundering in support
22 of terrorism in the second degree as defined in section 470.23 of the
23 penal law; money laundering in support of terrorism in the third degree
24 as defined in section 470.22 of the penal law; money laundering in
25 support of terrorism in the fourth degree as defined in section 470.21
26 of the penal law; or a felony crime of terrorism as defined in article
27 four hundred ninety of the penal law, other than the crime defined in
28 section 490.20 of such law;
29 (viii) criminal contempt in the second degree as defined in subdivi-
30 sion three of section 215.50 of the penal law, criminal contempt in the
31 first degree as defined in subdivision (b), (c) or (d) of section 215.51
32 of the penal law or aggravated criminal contempt as defined in section
33 215.52 of the penal law, and the underlying allegation of such charge of
34 criminal contempt in the second degree, criminal contempt in the first
35 degree or aggravated criminal contempt is that the defendant violated a
36 duly served order of protection where the protected party is a member of
37 the defendant's same family or household as defined in subdivision one
38 of section 530.11 of this article;
39 (ix) facilitating a sexual performance by a child with a controlled
40 substance or alcohol as defined in section 263.30 of the penal law, use
41 of a child in a sexual performance as defined in section 263.05 of the
42 penal law or luring a child as defined in subdivision one of section
43 120.70 of the penal law, promoting an obscene sexual performance by a
44 child as defined in section 263.10 of the penal law or promoting a sexu-
45 al performance by a child as defined in section 263.15 of the penal law;
46 (x) any crime that is alleged to have caused the death of another
47 person;
48 (xi) criminal obstruction of breathing or blood circulation as defined
49 in section 121.11 of the penal law, strangulation in the second degree
50 as defined in section 121.12 of the penal law or unlawful imprisonment
51 in the first degree as defined in section 135.10 of the penal law, and
52 is alleged to have committed the offense against a member of the defend-
53 ant's same family or household as defined in subdivision one of section
54 530.11 of this article;
S. 5973 25
1 (xii) aggravated vehicular assault as defined in section 120.04-a of
2 the penal law or vehicular assault in the first degree as defined in
3 section 120.04 of the penal law;
4 (xiii) assault in the third degree as defined in section 120.00 of the
5 penal law or arson in the third degree as defined in section 150.10 of
6 the penal law, when such crime is charged as a hate crime as defined in
7 section 485.05 of the penal law;
8 (xiv) aggravated assault upon a person less than eleven years old as
9 defined in section 120.12 of the penal law or criminal possession of a
10 weapon on school grounds as defined in section 265.01-a of the penal
11 law;
12 (xv) grand larceny in the first degree as defined in section 155.42 of
13 the penal law, enterprise corruption as defined in section 460.20 of the
14 penal law, or money laundering in the first degree as defined in section
15 470.20 of the penal law;
16 (xvi) failure to register as a sex offender pursuant to section one
17 hundred sixty-eight-t of the correction law or endangering the welfare
18 of a child as defined in subdivision one of section 260.10 of the penal
19 law, where the defendant is required to maintain registration under
20 article six-C of the correction law and designated a level three offen-
21 der pursuant to subdivision six of section one hundred sixty-eight-l of
22 the correction law;
23 (xvii) a crime involving bail jumping under section 215.55, 215.56 or
24 215.57 of the penal law, or a crime involving escaping from custody
25 under section 205.05, 205.10 or 205.15 of the penal law;
26 (xviii) any felony offense committed by the principal while serving a
27 sentence of probation or while released to post release supervision;
28 (xix) a felony, where the defendant qualifies for sentencing on such
29 charge as a persistent felony offender pursuant to section 70.10 of the
30 penal law;
31 (xx) any felony or class A misdemeanor involving harm to an identifi-
32 able person or property, or any charge of criminal possession of a
33 firearm as defined in section 265.01-b of the penal law where such
34 charge arose from conduct occurring while the defendant was released on
35 his or her own recognizance, released under conditions, or had yet to be
36 arraigned after the issuance of a desk appearance ticket for a separate
37 felony or class A misdemeanor involving harm to an identifiable person
38 or property, provided, however, that the prosecutor must show reasonable
39 cause to believe that the defendant committed the instant crime and any
40 underlying crime. For the purposes of this subparagraph, any of the
41 underlying crimes need not be a qualifying offense as defined in this
42 subdivision. For the purposes of this paragraph, "harm to an identifi-
43 able person or property" shall include but not be limited to theft of or
44 damage to property. However, based upon a review of the facts alleged in
45 the accusatory instrument, if the court determines that such theft is
46 negligible and does not appear to be in furtherance of other criminal
47 activity, the principal shall be released on his or her own recognizance
48 or under appropriate non-monetary conditions; or
49 (xxi) criminal possession of a weapon in the third degree as defined
50 in subdivision three of section 265.02 of the penal law or criminal sale
51 of a firearm to a minor as defined in section 265.16 of the penal law]
52 witness tampering in the fourth degree as defined in section 215.10 of
53 the penal law;
54 (ii) a misdemeanor under article one hundred thirty of the penal law;
55 (iii) conspiracy in the fifth degree as defined in section 105.05 of
56 the penal law where the underlying allegations of such charge is that
S. 5973 26
1 the defendant conspired to commit a felony or misdemeanor that otherwise
2 qualifies for bail;
3 (iv) criminal contempt in the second degree as defined in subdivision
4 three of section 215.50 of the penal law;
5 (v) a specified offense enumerated in subdivision two of section
6 240.75 of the penal law where such offense is alleged to have been
7 committed against a member of the defendant's same family or household
8 as defined in subdivision one of section 530.11 of this title;
9 (vi) any misdemeanor when such crime is charged as a hate crime as
10 defined in section 485.05 of the penal law;
11 (vii) bail jumping in the third degree as defined in section 215.55 of
12 the penal law;
13 (viii) escape in the third degree as defined in section 205.05 of the
14 penal law;
15 (ix) any misdemeanor involving intentionally causing harm to another
16 person or an animal;
17 (x) any misdemeanor involving the use and possession of a firearm,
18 shotgun or rifle;
19 (xi) any class A misdemeanor where such charge arose from conduct
20 while the defendant was released on his or her own recognizance,
21 released under conditions or had yet to be arraigned after the issuance
22 of a desk appearance ticket for a separate offense;
23 (xii) any other offense that the division of criminal justice services
24 has identified pursuant to article fifty of the executive law.
25 [(d) Notwithstanding the provisions of paragraphs (a) and (b) of this
26 subdivision, with respect to any charge for which bail or remand is not
27 ordered, and for which the court would not or could not otherwise
28 require bail or remand, a defendant may, at any time, request that the
29 court set bail in a nominal amount requested by the defendant in the
30 form specified in paragraph (a) of subdivision one of section 520.10 of
31 this title; if the court is satisfied that the request is voluntary, the
32 court shall set such bail in such amount.]
33 2. Where a defendant is charged with an offense that does not qualify
34 for pretrial detention under subdivision four of this section, the court
35 may commit the principal to the custody of the sheriff if the court
36 makes an individualized determination that the principal poses a
37 substantial risk of harm to themselves, others or the community as a
38 whole, or where the court determines that the defendant has an estab-
39 lished history of disobeying directives of the court.
40 (a) The court may consider the following factors when determining
41 whether a principal poses a risk of harm:
42 (i) the nature of the principal's prior convictions, including whether
43 the principal has been convicted of any violent felonies listed in
44 section 70.02 of the penal law;
45 (ii) the principal's access to weapons;
46 (iii) whether the principal has any association with a criminal street
47 gang, as defined in section 10-170 of the administrative code of the
48 city of New York or a criminal enterprise, as defined in section 460.10
49 of the penal law; and
50 (iv) any history of threats or intimidation to witnesses in prior
51 criminal proceedings.
52 (b) The court may consider the following factors when determining
53 whether a principal has an established history of disobeying directives
54 of the court:
55 (i) any history of bench warrants failures to appear;
56 (ii) previous violation of orders of protection;
S. 5973 27
1 (iii) any history of rearrests while other charges are pending; and
2 (iv) any history of witness intimidation or tampering.
3 3. When the defendant is charged, by felony complaint, with a felony,
4 the court may, in its discretion, order recognizance, release under
5 non-monetary conditions, [or, where authorized, bail] or commit the
6 defendant to the custody of the sheriff except as otherwise provided in
7 subdivision one of this section or this subdivision:
8 (a) A city court, a town court or a village court may not order recog-
9 nizance [or bail] when (i) the defendant is charged with a class A felo-
10 ny, or (ii) the defendant has two previous felony convictions;
11 (b) No local criminal court may order recognizance[,] or release under
12 non-monetary conditions [or bail] with respect to a defendant charged
13 with a felony unless and until:
14 (i) The district attorney has been heard in the matter or, after know-
15 ledge or notice of the application and reasonable opportunity to be
16 heard, has failed to appear at the proceeding or has otherwise waived
17 his right to do so; and
18 (ii) The court and counsel for the defendant have been furnished with
19 a report of the division of criminal justice services concerning the
20 defendant's criminal record, if any, or with a police department report
21 with respect to the defendant's prior arrest and conviction record, if
22 any. If neither report is available, the court, with the consent of the
23 district attorney, may dispense with this requirement; provided, howev-
24 er, that in an emergency, including but not limited to a substantial
25 impairment in the ability of such division or police department to time-
26 ly furnish such report, such consent shall not be required if, for
27 reasons stated on the record, the court deems it unnecessary. When the
28 court has been furnished with any such report or record, it shall
29 furnish a copy thereof to counsel for the defendant or, if the defendant
30 is not represented by counsel, to the defendant.
31 § 34. Section 530.30 of the criminal procedure law, the section head-
32 ing and subdivisions 1 and 2 as amended by section 17 of part JJJ of
33 chapter 59 of the laws of 2019, is amended to read as follows:
34 § 530.30 Order of recognizance[,] or release under non-monetary condi-
35 tions [or bail]; by superior court judge when action is pend-
36 ing in local criminal court.
37 1. When a criminal action is pending in a local criminal court, other
38 than one consisting of a superior court judge sitting as such, a judge
39 of a superior court holding a term thereof in the county, upon applica-
40 tion of a defendant, may order recognizance[,] or release under non-mon-
41 etary conditions [or, where authorized, bail] when such local criminal
42 court:
43 (a) Lacks authority to issue such an order, pursuant to the relevant
44 provisions of section 530.20 of this article; or
45 (b) Has denied an application for recognizance[,] or release under
46 non-monetary conditions [or bail]; or
47 (c) [Has fixed bail, where authorized, which is excessive; or
48 (d)] Has set a securing order of release under non-monetary conditions
49 which are more restrictive than necessary to reasonably assure the
50 defendant's return to court.
51 In such case, such superior court judge may vacate the order of such
52 local criminal court and release the defendant on recognizance or under
53 non-monetary conditions[, or where authorized, fix bail in a lesser
54 amount or in a less burdensome form, whichever are the least restrictive
55 alternative and conditions that will reasonably assure the defendant's
56 return to court]. The court must make an individualized determination
S. 5973 28
1 that any conditions imposed are necessary to secure the principal's
2 return to court when required or mitigate the risk of danger to the
3 principal, another person or the community. The court shall explain its
4 choice of alternative and conditions on the record or in writing.
5 2. Notwithstanding the provisions of subdivision one of this section,
6 when the defendant is charged with a felony in a local criminal court, a
7 superior court judge may not order recognizance[,] or release under
8 non-monetary conditions [or, where authorized, bail] unless and until
9 the district attorney has had an opportunity to be heard in the matter
10 and such judge and counsel for the defendant have been furnished with a
11 report as described in subparagraph (ii) of paragraph (b) of subdivision
12 [two] three of section 530.20 of this article.
13 3. Not more than one application may be made pursuant to this section.
14 § 35. Section 530.40 of the criminal procedure law, as amended by
15 section 18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
16 as amended by section 3 of subpart B of part UU of chapter 56 of the
17 laws of 2022, subdivision 4 as amended by section 4 of part UU of chap-
18 ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4 as
19 amended and paragraph (u) as added by section 4 of subpart B of part UU
20 of chapter 56 of the laws of 2022, is amended to read as follows:
21 § 530.40 Order of recognizance[,] or release under non-monetary condi-
22 tions [or bail]; by superior court when action is pending
23 therein.
24 When a criminal action is pending in a superior court, such court,
25 upon application of a defendant, must or may order recognizance [or
26 bail] as follows:
27 1. When the defendant is charged with an offense or offenses of less
28 than felony grade only, the court must, unless otherwise provided by
29 law, order recognizance or release under non-monetary conditions in
30 accordance with this section.
31 2. When the defendant is charged with a felony, the court may, unless
32 otherwise provided by law in its discretion, order recognizance, release
33 under non-monetary conditions or, where authorized, [bail] committing
34 the principal to the custody of the sheriff. In any such case in which
35 an indictment (a) has resulted from an order of a local criminal court
36 holding the defendant for the action of the grand jury, or (b) was filed
37 at a time when a felony complaint charging the same conduct was pending
38 in a local criminal court, and in which such local criminal court or a
39 superior court judge has issued an order of recognizance, release under
40 non-monetary conditions or, where authorized, [bail] committing the
41 principal to the custody of the sheriff which is still effective, the
42 superior court's order may be in the form of a direction continuing the
43 effectiveness of the previous order.
44 3. In cases other than as described in subdivision four of this
45 section the court shall release the principal pending trial on the prin-
46 cipal's own recognizance, unless [the court finds on the record or in
47 writing that release on the principal's own recognizance will not
48 reasonably assure the principal's return to court] it is demonstrated
49 and the court makes an individualized determination that the principal
50 poses a risk of flight to avoid prosecution or poses a danger to them-
51 selves, another person, or the community as a whole. [In such instances,
52 the court shall release the principal under non-monetary conditions,
53 selecting the least restrictive alternative and conditions that will
54 reasonably assure the principal's return to court.] The court shall
55 explain its choice of alternative and conditions on the record or in
S. 5973 29
1 writing. In making its determination, the court must consider and take
2 into account available information about the principal, including:
3 (a) the principal's character, reputation, habits, mental condition,
4 activities and history;
5 (b) if the principal is a defendant, the charges facing the principal
6 and the weight of the evidence against him or her in the pending crimi-
7 nal action and any other factor indicating the probability or improba-
8 bility of conviction;
9 (c) the principal's criminal conviction record if any;
10 (d) the principal's record of previous adjudication as a juvenile
11 delinquent, as retained pursuant to section 354.1 of the family court
12 act, or of pending cases where fingerprints are retained pursuant to
13 section 306.1 of such act, or a youthful offender, if any;
14 (e) the principal's previous record in complying with court orders,
15 including orders to appear when required, or with respect to flight to
16 avoid criminal prosecution;
17 (f) [if monetary bail is authorized, according to the restrictions set
18 forth in this title, the principal's individual financial circumstances,
19 and, in cases where bail is authorized, the principal's ability to post
20 bail without posing undue hardship, as well as his or her ability to
21 obtain a secured, unsecured, or partially secured bond;
22 (g)] any violation by the principal of an order of protection issued
23 by any court;
24 [(h)] (g) the principal's history and use or possession of a firearm;
25 [(i)] (h) whether the charge is alleged to have caused serious harm to
26 an individual or group of individuals; and
27 [(j)] (i) if the principal is a defendant, in the case of an applica-
28 tion for a securing order pending appeal, the merit or lack of merit of
29 the appeal.
30 4. Where the principal stands charged with a [qualifying offense]
31 felony, except a class E felony under title J or K of the penal law, or
32 a qualifying misdemeanor, or where the court has found that committing
33 the principal to the custody of the sheriff is warranted under subdivi-
34 sion two of this section, the court, unless otherwise prohibited by
35 law[,] may in its discretion release the principal pending trial on the
36 principal's own recognizance or under non-monetary conditions, [fix
37 bail, or, where the defendant is charged with a qualifying offense which
38 is a felony, the court may] or commit the principal to the custody of
39 the sheriff. The court shall explain its choice of release, release with
40 conditions[, bail] or remand on the record or in writing. A principal
41 stands charged with a qualifying offense for the purposes of this subdi-
42 vision when he or she stands charged with:
43 (a) [a felony enumerated in section 70.02 of the penal law, other than
44 robbery in the second degree as defined in subdivision one of section
45 160.10 of the penal law, provided, however, that burglary in the second
46 degree as defined in subdivision two of section 140.25 of the penal law
47 shall be a qualifying offense only where the defendant is charged with
48 entering the living area of the dwelling;
49 (b) a crime involving witness intimidation under section 215.15 of the
50 penal law;
51 (c) a crime involving witness tampering under section 215.11, 215.12
52 or 215.13 of the penal law;
53 (d) a class A felony defined in the penal law, provided that for class
54 A felonies under article two hundred twenty of such law, only class A-I
55 felonies shall be a qualifying offense;
S. 5973 30
1 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
2 the penal law, or a felony sex offense defined in section 70.80 of the
3 penal law or a crime involving incest as defined in section 255.25,
4 255.26 or 255.27 of such law, or a misdemeanor defined in article one
5 hundred thirty of such law;
6 (f) conspiracy in the second degree as defined in section 105.15 of
7 the penal law, where the underlying allegation of such charge is that
8 the defendant conspired to commit a class A felony defined in article
9 one hundred twenty-five of the penal law;
10 (g) money laundering in support of terrorism in the first degree as
11 defined in section 470.24 of the penal law; money laundering in support
12 of terrorism in the second degree as defined in section 470.23 of the
13 penal law; money laundering in support of terrorism in the third degree
14 as defined in section 470.22 of the penal law; money laundering in
15 support of terrorism in the fourth degree as defined in section 470.21
16 of the penal law; or a felony crime of terrorism as defined in article
17 four hundred ninety of the penal law, other than the crime defined in
18 section 490.20 of such law;
19 (h) criminal contempt in the second degree as defined in subdivision
20 three of section 215.50 of the penal law, criminal contempt in the first
21 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
22 the penal law or aggravated criminal contempt as defined in section
23 215.52 of the penal law, and the underlying allegation of such charge of
24 criminal contempt in the second degree, criminal contempt in the first
25 degree or aggravated criminal contempt is that the defendant violated a
26 duly served order of protection where the protected party is a member of
27 the defendant's same family or household as defined in subdivision one
28 of section 530.11 of this article;
29 (i) facilitating a sexual performance by a child with a controlled
30 substance or alcohol as defined in section 263.30 of the penal law, use
31 of a child in a sexual performance as defined in section 263.05 of the
32 penal law or luring a child as defined in subdivision one of section
33 120.70 of the penal law, promoting an obscene sexual performance by a
34 child as defined in section 263.10 of the penal law or promoting a sexu-
35 al performance by a child as defined in section 263.15 of the penal law;
36 (j) any crime that is alleged to have caused the death of another
37 person;
38 (k) criminal obstruction of breathing or blood circulation as defined
39 in section 121.11 of the penal law, strangulation in the second degree
40 as defined in section 121.12 of the penal law or unlawful imprisonment
41 in the first degree as defined in section 135.10 of the penal law, and
42 is alleged to have committed the offense against a member of the defend-
43 ant's same family or household as defined in subdivision one of section
44 530.11 of this article;
45 (l) aggravated vehicular assault as defined in section 120.04-a of the
46 penal law or vehicular assault in the first degree as defined in section
47 120.04 of the penal law;
48 (m) assault in the third degree as defined in section 120.00 of the
49 penal law or arson in the third degree as defined in section 150.10 of
50 the penal law, when such crime is charged as a hate crime as defined in
51 section 485.05 of the penal law;
52 (n) aggravated assault upon a person less than eleven years old as
53 defined in section 120.12 of the penal law or criminal possession of a
54 weapon on school grounds as defined in section 265.01-a of the penal
55 law;
S. 5973 31
1 (o) grand larceny in the first degree as defined in section 155.42 of
2 the penal law, enterprise corruption as defined in section 460.20 of the
3 penal law, or money laundering in the first degree as defined in section
4 470.20 of the penal law;
5 (p) failure to register as a sex offender pursuant to section one
6 hundred sixty-eight-t of the correction law or endangering the welfare
7 of a child as defined in subdivision one of section 260.10 of the penal
8 law, where the defendant is required to maintain registration under
9 article six-C of the correction law and designated a level three offen-
10 der pursuant to subdivision six of section one hundred sixty-eight-l of
11 the correction law;
12 (q) a crime involving bail jumping under section 215.55, 215.56 or
13 215.57 of the penal law, or a crime involving escaping from custody
14 under section 205.05, 205.10 or 205.15 of the penal law;
15 (r) any felony offense committed by the principal while serving a
16 sentence of probation or while released to post release supervision;
17 (s) a felony, where the defendant qualifies for sentencing on such
18 charge as a persistent felony offender pursuant to section 70.10 of the
19 penal law;
20 (t) any felony or class A misdemeanor involving harm to an identifi-
21 able person or property, or any charge of criminal possession of a
22 firearm as defined in section 265.01-b of the penal law, where such
23 charge arose from conduct occurring while the defendant was released on
24 his or her own recognizance, released under conditions, or had yet to be
25 arraigned after the issuance of a desk appearance ticket for a separate
26 felony or class A misdemeanor involving harm to an identifiable person
27 or property, or any charge of criminal possession of a firearm as
28 defined in section 265.01-b of the penal law, provided, however, that
29 the prosecutor must show reasonable cause to believe that the defendant
30 committed the instant crime and any underlying crime. For the purposes
31 of this subparagraph, any of the underlying crimes need not be a quali-
32 fying offense as defined in this subdivision. For the purposes of this
33 paragraph, "harm to an identifiable person or property" shall include
34 but not be limited to theft of or damage to property. However, based
35 upon a review of the facts alleged in the accusatory instrument, if the
36 court determines that such theft is negligible and does not appear to be
37 in furtherance of other criminal activity, the principal shall be
38 released on his or her own recognizance or under appropriate non-mone-
39 tary conditions; or
40 (u) criminal possession of a weapon in the third degree as defined in
41 subdivision three of section 265.02 of the penal law or criminal sale of
42 a firearm to a minor as defined in section 265.16 of the penal law]
43 witness tampering in the fourth degree as defined in section 215.10 of
44 the penal law;
45 (b) a misdemeanor under article one hundred thirty of the penal law;
46 (c) conspiracy in the fifth degree as defined in section 105.05 of the
47 penal law where the underlying allegations of such charge is that the
48 defendant conspired to commit a felony or misdemeanor that otherwise
49 qualifies for bail;
50 (d) criminal contempt in the second degree as defined in subdivision
51 three of section 215.50 of the penal law;
52 (e) a specified offense enumerated in subdivision two of section
53 240.75 of the penal law where such offense is alleged to have been
54 committed against a member of the defendant's same family or household
55 as defined in subdivision one of section 530.11 of this title;
S. 5973 32
1 (f) any misdemeanor when such crime is charged as a hate crime as
2 defined in section 485.05 of the penal law;
3 (g) bail jumping in the third degree as defined in section 215.55 of
4 the penal law;
5 (h) escape in the third degree as defined in section 205.05 of the
6 penal law;
7 (i) any misdemeanor involving intentionally causing harm to another
8 person or an animal;
9 (j) any misdemeanor involving the use and possession of a firearm,
10 shotgun or rifle;
11 (k) any class A misdemeanor where such charge arose from conduct while
12 the defendant was released on his or her own recognizance, released
13 under conditions or had yet to be arraigned after the issuance of a desk
14 appearance ticket for a separate offense; or
15 (l) any other offense that the division of criminal justice services
16 has identified pursuant to article fifty of the executive law.
17 5. [Notwithstanding the provisions of subdivisions three and four of
18 this section, with respect to any charge for which bail or remand is not
19 ordered, and for which the court would not or could not otherwise
20 require bail or remand, a defendant may, at any time, request that the
21 court set bail in a nominal amount requested by the defendant in the
22 form specified in paragraph (a) of subdivision one of section 520.10 of
23 this title; if the court is satisfied that the request is voluntary, the
24 court shall set such bail in such amount] Where a defendant is charged
25 with an offense that does not qualify for pretrial detention under
26 subdivision four of this section, the court may commit the principal to
27 the custody of the sheriff if the court makes an individualized determi-
28 nation that the principal poses a substantial risk of harm to them-
29 selves, others or the community as a whole, or where the court deter-
30 mines that the defendant has an established history of disobeying
31 directives of the court.
32 (a) The court may consider the following factors when determining
33 whether a principal poses a risk of harm:
34 (i) the nature of the principal's prior convictions, including whether
35 the principal has been convicted of any violent felonies listed in
36 section 70.02 of the penal law;
37 (ii) the principal's access to weapons;
38 (iii) whether the principal has any association with a criminal street
39 gang, as defined in section 10-170 of the administrative code of the
40 city of New York or a criminal enterprise, as defined in section 460.10
41 of the penal law; and
42 (iv) any history of threats or intimidation to witnesses in prior
43 criminal proceedings.
44 (b) The court may consider the following factors when determining
45 whether a principal has an established history of disobeying directives
46 of the court:
47 (i) any history of bench warrants failures to appear;
48 (ii) previous violation of orders of protection;
49 (iii) any history of rearrests while other charges are pending; and
50 (iv) any history of witness intimidation or tampering.
51 6. Notwithstanding the provisions of subdivisions two, three and four
52 of this section, a superior court may not order recognizance, release
53 under non-monetary conditions [or, where authorized, bail,] or permit a
54 defendant to remain at liberty pursuant to an existing order, after the
55 defendant has been convicted of either: (a) a class A felony or (b) any
56 class B or class C felony as defined in article one hundred thirty of
S. 5973 33
1 the penal law committed or attempted to be committed by a person eigh-
2 teen years of age or older against a person less than eighteen years of
3 age. In either case the court must commit or remand the defendant to the
4 custody of the sheriff.
5 7. Notwithstanding the provisions of subdivisions two, three and four
6 of this section, a superior court may not order recognizance[,] or
7 release under non-monetary conditions [or, where authorized, bail] when
8 the defendant is charged with a felony unless and until the district
9 attorney has had an opportunity to be heard in the matter and such court
10 and counsel for the defendant have been furnished with a report as
11 described in subparagraph (ii) of paragraph (b) of subdivision [two]
12 three of section 530.20 of this article.
13 § 36. The section heading and subdivision 1 of section 530.45 of the
14 criminal procedure law, the section heading as added by chapter 435 of
15 the laws of 1974, subdivision 1 as amended by section 19 of part JJJ of
16 chapter 59 of the laws of 2019, are amended to read as follows:
17 Order of recognizance [or bail] non-monetary conditions; after
18 conviction and before sentence.
19 1. When the defendant is at liberty in the course of a criminal action
20 as a result of a prior order of recognizance[,] or release under non-
21 monetary conditions [or bail] and the court revokes such order and then,
22 where authorized, [fixes no bail or fixes bail in a greater amount or in
23 a more burdensome form than was previously fixed and] remands or commits
24 defendant to the custody of the sheriff, or issues a more restrictive
25 securing order, a judge designated in subdivision two of this section,
26 upon application of the defendant following conviction of an offense
27 other than a class A felony or a class B or class C felony offense as
28 defined in article one hundred thirty of the penal law committed or
29 attempted to be committed by a person eighteen years of age or older
30 against a person less than eighteen years of age, and before sentencing,
31 may issue a securing order and release the defendant on the defendant's
32 own recognizance, release the defendant under non-monetary conditions,
33 [or, where authorized, fix bail or fix bail in a lesser amount or in a
34 less burdensome form,] or issue a less restrictive securing order, than
35 fixed by the court in which the conviction was entered.
36 § 37. Section 530.50 of the criminal procedure law, as amended by
37 chapter 264 of the laws of 2003, subdivision 1 as designated and subdi-
38 vision 2 as added by section 10 of part UU of chapter 56 of the laws of
39 2020, subdivision 3 as added by section 4 of subpart D of part UU of
40 chapter 56 of the laws of 2022, is amended to read as follows:
41 § 530.50 Order of recognizance or [bail] non-monetary conditions; during
42 pendency of appeal.
43 1. A judge who is otherwise authorized pursuant to section 460.50 or
44 section 460.60 of this chapter to issue an order of recognizance or
45 [bail] non-monetary conditions pending the determination of an appeal,
46 may do so unless the defendant received a class A felony sentence or a
47 sentence for any class B or class C felony offense defined in article
48 one hundred thirty of the penal law committed or attempted to be commit-
49 ted by a person eighteen years of age or older against a person less
50 than eighteen years of age.
51 2. Notwithstanding the provisions of subdivision four of section
52 510.10 of this title, paragraph (b) of subdivision one of section 530.20
53 and subdivision four of section 530.40 of this [title] article, when a
54 defendant charged with an offense that is not such a qualifying offense
55 applies, pending determination of an appeal, for an order of recogni-
56 zance or release on non-monetary conditions, where authorized, [or
S. 5973 34
1 fixing bail,] a judge identified in subdivision two of section 460.50 or
2 paragraph (a) of subdivision one of section 460.60 of this chapter may,
3 in accordance with law, and except as otherwise provided by law, issue a
4 securing order: releasing the defendant on the defendant's own recogni-
5 zance or under non-monetary conditions where authorized, [fixing bail,]
6 or remanding the defendant to the custody of the sheriff where author-
7 ized.
8 3. Where an appeal by the people has been taken from an order dismiss-
9 ing one or more counts of an accusatory instrument for failure to comply
10 with a discovery order pursuant to subdivision twelve of section 450.20
11 of this chapter and the defendant is charged with a qualifying offense
12 in the remaining counts in the accusatory instrument, pending determi-
13 nation of an appeal, the defendant may apply for an order of recogni-
14 zance or release on non-monetary conditions, where authorized[, or
15 fixing bail]. A judge identified in subdivision two of section 460.50 of
16 this chapter or paragraph (a) of subdivision one of section 460.60 of
17 this chapter may, in accordance with law, and except as otherwise
18 provided by law, issue a securing order releasing the defendant on the
19 defendant's own recognizance or under non-monetary conditions where
20 authorized, [fixing bail,] or remanding the defendant to the custody of
21 the sheriff where authorized.
22 § 38. Section 530.60 of the criminal procedure law, as amended by
23 section 20 of part JJJ of chapter 59 of the laws of 2019, is amended to
24 read as follows:
25 § 530.60 Certain modifications of a securing order.
26 1. Whenever in the course of a criminal action or proceeding a defend-
27 ant is at liberty as a result of an order of recognizance[,] or release
28 under non-monetary conditions [or bail] issued pursuant to this chapter,
29 and the court considers it necessary to review such order, whether due
30 to a motion by the people or otherwise, the court may, and except as
31 provided in subdivision two of section 510.50 of this title concerning a
32 failure to appear in court, by a bench warrant if necessary, require the
33 defendant to appear before the court. Upon such appearance, the court,
34 for good cause shown, may revoke the order of recognizance[,] or release
35 under non-monetary conditions, [or bail] and commit the principal to the
36 custody of the sheriff. [If the defendant is entitled to recognizance,
37 release under non-monetary conditions, or bail as a matter of right, the
38 court must issue another such order. If the defendant is not, the court
39 may either issue such an order or commit the defendant to the custody of
40 the sheriff in accordance with this section.]
41 Where the defendant is committed to the custody of the sheriff and is
42 held on a felony complaint, a new period as provided in section 180.80
43 of this chapter shall commence to run from the time of the defendant's
44 commitment under this subdivision.
45 2. (a) Whenever in the course of a criminal action or proceeding a
46 defendant charged with the commission of a felony is at liberty as a
47 result of an order of recognizance[,] or release under non-monetary
48 conditions [or bail] issued pursuant to this article it shall be grounds
49 for revoking such order that the court finds reasonable cause to believe
50 the defendant committed one or more [specified class A or violent felony
51 offenses or intimidated a victim or witness in violation of section
52 215.15, 215.16 or 215.17 of the penal law] felony offenses or misdemea-
53 nor offenses enumerated in subdivision four of section 510.10 of this
54 title while at liberty.
55 (b) Except as provided in paragraph (a) of this subdivision or any
56 other law, whenever in the course of a criminal action or proceeding a
S. 5973 35
1 defendant charged with the commission of an offense is at liberty as a
2 result of an order of recognizance[,] or release under non-monetary
3 conditions [or bail] issued pursuant to this article it shall be grounds
4 for revoking such order and fixing bail in such criminal action or
5 proceeding when the court has found, by clear and convincing evidence,
6 that the defendant:
7 (i) persistently and willfully failed to appear after notice of sched-
8 uled appearances in the case before the court; or
9 (ii) violated an order of protection in the manner prohibited by
10 subdivision (b), (c) or (d) of section 215.51 of the penal law while at
11 liberty; or
12 (iii) stands charged in such criminal action or proceeding with a
13 misdemeanor or violation and, after being so charged, intimidated a
14 victim or witness in violation of section 215.15, 215.16 or 215.17 of
15 the penal law or tampered with a witness in violation of section 215.11,
16 215.12 or 215.13 of the penal law, [law] while at liberty; or
17 (iv) stands charged in such action or proceeding with a felony and,
18 after being so charged, committed a felony while at liberty.
19 (c) Before revoking an order of recognizance[,] or release under non-
20 monetary conditions, [or bail] pursuant to this subdivision, the court
21 must hold a hearing and shall receive any relevant, admissible evidence
22 not legally privileged. The defendant may cross-examine witnesses and
23 may present relevant, admissible evidence on his own behalf. Such hear-
24 ing may be consolidated with, and conducted at the same time as, a felo-
25 ny hearing conducted pursuant to article one hundred eighty of this
26 chapter. A transcript of testimony taken before the grand jury upon
27 presentation of the subsequent offense shall be admissible as evidence
28 during the hearing. The district attorney may move to introduce grand
29 jury testimony of a witness in lieu of that witness' appearance at the
30 hearing.
31 (d) Revocation of an order of recognizance[,] or release under non-
32 monetary conditions [or bail] and a new securing order [fixing bail] or
33 commitment, as specified in this paragraph and pursuant to this subdivi-
34 sion shall be for the following periods:
35 (i) Under paragraph (a) of this subdivision, revocation of the order
36 of recognizance[,] or release under non-monetary conditions [or, as the
37 case may be, bail], and a new securing order [fixing bail] or committing
38 the defendant to the custody of the sheriff shall be as follows:
39 (A) For a period not to exceed ninety days exclusive of any periods of
40 adjournment requested by the defendant; or
41 (B) Until the charges contained within the accusatory instrument have
42 been reduced or dismissed such that no count remains which charges the
43 defendant with commission of a felony; or
44 (C) Until reduction or dismissal of the charges contained within the
45 accusatory instrument charging the subsequent offense such that no count
46 remains which charges the defendant with commission of a class A or
47 violent felony offense.
48 Upon expiration of any of the three periods specified within this
49 subparagraph, whichever is shortest, the court may grant or deny release
50 upon an order of [bail or] recognizance in accordance with the
51 provisions of this article. Upon conviction to an offense the provisions
52 of [article five hundred thirty of] this [chapter] article shall apply;
53 and
54 (ii) Under paragraph (b) of this subdivision, revocation of the order
55 of recognizance[,] or release under non-monetary conditions [or, as the
56 case may be, bail] shall result in the issuance of a new securing order
S. 5973 36
1 which may, if otherwise authorized by law, permit the principal's
2 release on recognizance or release under non-monetary conditions, but
3 shall also render the defendant eligible for an order [fixing bail
4 provided, however, that in accordance with the principles in this title
5 the court must select the least restrictive alternative and condition or
6 conditions that will reasonably assure the principal's return to court]
7 of commitment to the custody of the sheriff. Nothing in this subpara-
8 graph shall be interpreted as shortening the period of detention, or
9 requiring or authorizing any less restrictive form of a securing order,
10 which may be imposed pursuant to any other law.
11 (e) Notwithstanding the provisions of paragraph (a) or (b) of this
12 subdivision a defendant, against whom a felony complaint has been filed
13 which charges the defendant with commission of a class A or violent
14 felony offense or violation of section 215.15, 215.16 or 215.17 of the
15 penal law committed while he was at liberty as specified therein, may be
16 committed to the custody of the sheriff pending a revocation hearing for
17 a period not to exceed seventy-two hours. An additional period not to
18 exceed seventy-two hours may be granted by the court upon application of
19 the district attorney upon a showing of good cause or where the failure
20 to commence the hearing was due to the defendant's request or occurred
21 with his consent. Such good cause must consist of some compelling fact
22 or circumstance which precluded conducting the hearing within the
23 initial prescribed period.
24 § 39. The section heading of section 530.70 of the criminal procedure
25 law is amended to read as follows:
26 Order of recognizance or [bail] non-monetary conditions; bench
27 warrant.
28 § 40. Section 530.80 of the criminal procedure law is REPEALED.
29 § 41. Article 540 of the criminal procedure law is REPEALED.
30 § 42. Subdivisions 2 and 3 of section 550.10 of the criminal procedure
31 law is amended to read as follows:
32 2. If the defendant has been arraigned in the action and, by virtue of
33 a securing order, is either in the custody of the sheriff or at liberty
34 within the state on his or her own recognizance or [on bail] under non-
35 monetary conditions, his or her attendance may be secured as follows:
36 (a) If the defendant is confined in the custody of the sheriff, the
37 court may direct the sheriff to produce him or her;
38 (b) If the defendant is at liberty within the state as a result of an
39 order releasing him or her on his or her own recognizance or [on bail]
40 under non-monetary conditions, the court may secure his or her attend-
41 ance by notification or by the issuance of a bench warrant.
42 3. If the defendant's attendance cannot be secured by methods
43 described in subdivisions one and two of this section, either because he
44 or she is outside the state or because [he] such defendant is confined
45 in an institution within the state as a result of an order issued in
46 some other action, proceeding or matter, his or her attendance may,
47 under indicated circumstances, be secured by procedures prescribed in
48 the ensuing articles of this title.
49 § 43. Section 570.36 of the criminal procedure law is amended to read
50 as follows:
51 § 570.36 Commitment to await requisition[; bail].
52 If from the examination before the local criminal court it appears
53 that the person held is the person charged with having committed the
54 crime alleged, and, except in cases arising under section 570.14 or
55 570.16 of this article, that he or she has fled from justice, the local
56 criminal court must, by a warrant reciting the accusation, commit him or
S. 5973 37
1 her to the county jail for such a time not exceeding thirty days and
2 specified in the warrant, as will enable the arrest of the accused to be
3 made under a warrant of the governor on a requisition of the executive
4 authority of the state having jurisdiction of the offense[, unless the
5 accused gives bail as provided in the next section,] or until he or she
6 shall be legally discharged.
7 § 44. Section 570.38 of the criminal procedure law is REPEALED.
8 § 45. Section 570.40 of the criminal procedure law is amended to read
9 as follows:
10 § 570.40 Extension of time of commitment; adjournment.
11 If the accused is not arrested under warrant of the governor by the
12 expiration of the time specified in the warrant, bond or undertaking, a
13 local criminal court may discharge him or may recommit him for a further
14 period of sixty days, or for further periods not to exceed in the aggre-
15 gate sixty days[, or a supreme court justice or county judge may again
16 take bail for his appearance and surrender, as provided in section
17 570.38 but within a period not to exceed sixty days after the date of
18 such new bond or undertaking].
19 § 46. Section 570.42 of the criminal procedure law is REPEALED.
20 § 47. Paragraph (c) of subdivision 3 of section 722.20 of the criminal
21 procedure law, as added by section 1-a of part WWW of chapter 59 of the
22 laws of 2017, is amended to read as follows:
23 (c) If there is not reasonable cause to believe that the defendant
24 committed any criminal act, the court must dismiss the felony complaint
25 and discharge the defendant from custody if he or she is in custody[, or
26 if he is at liberty on bail, it must exonerate the bail].
27 § 48. Paragraph (c) of subdivision 3 of section 722.21 of the criminal
28 procedure law, as added by section 1-a of part WWW of chapter 59 of the
29 laws of 2017, is amended to read as follows:
30 (c) If there is not reasonable cause to believe that the defendant
31 committed any criminal act, the court must dismiss the felony complaint
32 and discharge the defendant from custody if he or she is in custody[, or
33 if he is at liberty on bail, it must exonerate the bail].
34 § 49. Subdivision 2 of section 730.20 of the criminal procedure law is
35 amended to read as follows:
36 2. When the defendant is not in custody at the time a court issues an
37 order of examination, because he or she was theretofore released [on
38 bail or] on his or her own recognizance or under non-monetary
39 conditions, the court may direct that the examination be conducted on an
40 out-patient basis, and at such time and place as the director shall
41 designate. If, however, the director informs the court that hospital
42 confinement of the defendant is necessary for an effective examination,
43 the court may direct that the defendant be confined in a hospital desig-
44 nated by the director until the examination is completed.
45 § 50. Subdivision 1 of section 730.50 of the criminal procedure law,
46 as amended by chapter 7 of the laws of 2013, is amended to read as
47 follows:
48 1. When a superior court, following a hearing conducted pursuant to
49 subdivision three or four of section 730.30 of this article, is satis-
50 fied that the defendant is not an incapacitated person, the criminal
51 action against him or her must proceed. If it is satisfied that the
52 defendant is an incapacitated person, or if no motion for such a hearing
53 is made, it must adjudicate him or her an incapacitated person, and must
54 issue a final order of observation or an order of commitment. When the
55 indictment does not charge a felony or when the defendant has been
56 convicted of an offense other than a felony, such court (a) must issue a
S. 5973 38
1 final order of observation committing the defendant to the custody of
2 the commissioner for care and treatment in an appropriate institution
3 for a period not to exceed ninety days from the date of such order,
4 provided, however, that the commissioner may designate an appropriate
5 hospital for placement of a defendant for whom a final order of observa-
6 tion has been issued, where such hospital is licensed by the office of
7 mental health and has agreed to accept, upon referral by the commission-
8 er, defendants subject to final orders of observation issued under this
9 subdivision, and (b) must dismiss the indictment filed in such court
10 against the defendant, and such dismissal constitutes a bar to any
11 further prosecution of the charge or charges contained in such indict-
12 ment. Upon the issuance of a final order of observation, the district
13 attorney shall immediately transmit to the commissioner, in a manner
14 intended to protect the confidentiality of the information, a list of
15 names and contact information of persons who may reasonably be expected
16 to be the victim of any assault or any violent felony offense, as
17 defined in the penal law, or any offense listed in section 530.11 of
18 this chapter which would be carried out by the committed person;
19 provided that the person who reasonably may be expected to be a victim
20 does not need to be a member of the same family or household as the
21 committed person. When the indictment charges a felony or when the
22 defendant has been convicted of a felony, it must issue an order of
23 commitment committing the defendant to the custody of the commissioner
24 for care and treatment in an appropriate institution or, upon the
25 consent of the district attorney, committing him or her to the custody
26 of the commissioner for care and treatment on an out-patient basis, for
27 a period not to exceed one year from the date of such order. [Upon the
28 issuance of an order of commitment, the court must exonerate the defend-
29 ant's bail if he or she was previously at liberty on bail; provided,
30 however, that exoneration of bail is not required when a defendant is
31 committed to the custody of the commissioner for care and treatment on
32 an out-patient basis.] When the defendant is in the custody of the
33 commissioner pursuant to a final order of observation, the commissioner
34 or his or her designee, which may include the director of an appropriate
35 institution, immediately upon the discharge of the defendant, must
36 certify to such court that he or she has complied with the notice
37 provisions set forth in paragraph (a) of subdivision six of section
38 730.60 of this article.
39 § 51. Section 246-a of the lien law is REPEALED.
40 § 52. Article 50 and sections 1000, 1001, 1002 and 1003 of the execu-
41 tive law, as renumbered by chapter 770 of the laws of 1978, are renum-
42 bered article 51 and sections 1100, 1101, 1102 and 1103 and a new arti-
43 cle 50 is added to read as follows:
44 ARTICLE 50
45 COMMISSION ON PUBLIC SAFETY REFORM
46 Section 1005. Commission on public safety reform.
47 1006. Powers and duties of the commission.
48 § 1005. Commission on public safety reform. 1. There is hereby created
49 in the department, the commission on public safety reform, which shall
50 consist of the following fifteen members:
51 (a) the commissioner of the division of criminal justice services who
52 shall be chair of the commission;
53 (b) fourteen members appointed by the governor.
54 2. Of the members appointed by the governor:
55 (a) one member shall be a representative of a law enforcement agency
56 located outside of a city with a population of over one million and
S. 5973 39
1 shall be appointed upon the recommendation of the commissioner of crimi-
2 nal justice services;
3 (b) one member shall be a representative of a law enforcement agency
4 located within a city with a population of over one million and shall be
5 appointed upon the recommendation of the mayor of such city;
6 (c) one member shall be a district attorney of a county outside a city
7 with a population of one million and shall be appointed upon the recom-
8 mendation of an organization representing district attorneys;
9 (d) one member shall be a district attorney of a county within a city
10 with a population of greater than one million and shall be appointed
11 upon the recommendation of the mayor of such city;
12 (e) one member shall be a representative of the public criminal
13 defense bar who shall be appointed upon the recommendation of an organ-
14 ization representing public defense services;
15 (f) one member shall be a representative of the private criminal
16 defense bar who shall be appointed upon the recommendation of an organ-
17 ization of such bar;
18 (g) two members shall appointed upon the recommendation of the tempo-
19 rary president of the senate;
20 (h) two members shall be appointed upon the recommendation of the
21 speaker of the assembly;
22 (i) one member shall be appointed upon the recommendation of the
23 minority leader of the senate;
24 (j) one member shall be appointed upon the recommendation of the
25 minority leader of the assembly;
26 (k) one member shall be appointed upon the recommendation of the
27 attorney general of the state of New York; and
28 (l) one member, who shall be an attorney or judge shall be appointed
29 upon the recommendation of the chief judge of the court of appeals.
30 3. Of the members appointed by the governor, each member shall be
31 appointed to serve a two year term. Any member appointed by the governor
32 may be reappointed for additional two year terms.
33 4. Any member chosen to fill a vacancy created otherwise than by expi-
34 ration of term shall be appointed by the governor for the unexpired term
35 of the member he or she is to succeed. Any such vacancy shall be filled
36 in the same manner as the original appointment.
37 5. The commission shall meet at least four times each year and may
38 establish its own rules and procedures concerning the conduct of its
39 meetings and other affairs not inconsistent with law.
40 6. No member of the commission on public safety reform shall be
41 disqualified from holding any public office or employment, nor shall he
42 or she forfeit any such office or employment, by reason of his or her
43 appointment hereunder, and members of the commission shall not be
44 required to take and file oaths of office before serving on the commis-
45 sion.
46 7. Members of the commission shall receive no compensation for their
47 services but shall be allowed their actual and necessary expenses
48 incurred in the performance of their functions hereunder.
49 § 1006. Powers and duties of the commission. 1. The commission shall
50 have the following duties, including, but not limited to:
51 (a) The commission shall conduct a thorough study and issue a compre-
52 hensive report on which crimes should be eligible for pretrial
53 detention. When conducting such study the commission shall seek to find
54 the appropriate balance between public safety and the rights of the
55 accused. The commission shall consider the following factors, including,
56 but not limited to:
S. 5973 40
1 (i) data on crime in New York state;
2 (ii) a review of the successes and challenges faced by other states
3 that have enacted large scale criminal justice reform;
4 (iii) rates of recidivism; and
5 (iv) any other factor the commission deems relevant.
6 (b) The comprehensive report shall contain detailed analysis and
7 justification of the data utilized to determine which crimes shall or
8 shall not be eligible for pretrial detention.
9 (c) The commission shall draft and publish a model risk analysis tool
10 utilizing crime data from the department of criminal justice services
11 for use by judges in determining if it is appropriate for a judge to
12 remand an individual accused of a crime. The commission will hold at
13 least one public hearing on this model risk analysis tool within eigh-
14 teen months of the effective date of this section, and shall publish the
15 final model risk analysis tool within ninety days of the public hearing.
16 2. Within one year of the effective date of this section, the commis-
17 sion on public safety reform shall issue a draft report, which shall be
18 submitted to the governor, the temporary president of the senate, the
19 speaker of the assembly, the minority leader of the senate, and the
20 minority leader of the assembly on recommended eligible for pretrial
21 detention crimes with supporting evidence of why certain crimes were
22 included and others were excluded. At least three public hearings shall
23 be held by the commission to provide the public with the opportunity to
24 comment on the report. Notice of such hearings shall be provided on the
25 department of criminal justice services website.
26 3. Within ninety days of the date of the last public hearing, the
27 commission on public safety reform shall submit a final report to the
28 governor, the temporary president of the senate, the speaker of the
29 assembly, the minority leader of the senate, and the minority leader of
30 the assembly. Copies of such report shall also be made available to the
31 public and posted on the websites of the department of criminal justice
32 services.
33 § 53. This act shall take effect immediately; provided, however, that
34 sections one through fifty-one of this act shall take effect on the
35 ninetieth day after it shall have become a law.
