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A02571 Summary:

COSPNSRSimon, Taylor, Rosenthal L, Jean-Pierre, Seawright, Weprin, Williams, Cook, Dickens, Davila, Pretlow
Add §510.25, amd §§510.30 & 510.45, CP L
Relates to the issuance of securing orders; relates to release under non-monetary conditions; relates to electronic monitoring; requires a rehearing after five days in custody for certain principals.
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A02571 Actions:

01/26/2023referred to codes
01/03/2024referred to codes
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A02571 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to the issuance of securing orders and in relation to making conforming changes   PURPOSE OR GENERAL IDEA OF BILL: New York's antiquated cash bail system has been fixed in law without major amendment for nearly fifty years. This legislation would move our state toward a more intelligent, individualized system of pre-trial release, monitoring and, when necessary, detention. The bill is designed to end the current, reflexive overreliance on monetary bail, which each year results in the unnecessary and expensive pre-trial jailing of thou- sands of persons simply because they cannot afford a modest sum as collateral.   SUMMARY OF PROVISIONS: The bill would, in most instances, eliminate' the option for a court to impose a monetary bail requirement at arraignment or thereafter when a defendant is charged with a traffic infraction, violation, misdemeanor or non-violent felony. Rather than rely almost exclusively on money bail, courts would be required to consider, in ascending order, release on recognizance (except in certain higher level felony cases), release on non-monetary conditions, monitoring by a pretrial services agency, travel restrictions, and electronic location monitoring. The court would be required to select the least restrictive alternative and conditions that would reasonably assure the defendant's appearance in court when required. The bill would retain a class of charges for which the court would be required to select the least restrictive alternative and conditions designed to assure court attendance, but for which a monetary bail option would be retained. This would include a misdemeanor sex offenses defined in Article 130 of the Penal Law and a felony set forth in section § 70.02 of the Penal Law (other than burglary in the second degree (PL § 140.25, subd.2), robbery in the second degree (PL § 160.10, subd. 1) and falsely reporting an incident in the second degree (PL § 240.55)). Monetary bail would also be authorized, along with a remand without bail (as available under current law, see CPL § 530.20 (2)), when the charge is a felony sex offense, a felony terrorism crime defined in PL § 490.10, § 490.15, § 490 490.55, a class A felony, a felony offense of witness tampering, a felony involving an intent to cause serious physical injury or death and causing such result, or a charge which makes the person eligible for sentencing as a persistent violent felony offender. Current law sets forth nine potential methods by which monetary bail may be authorized. A judge setting bail may select one, two or more such options. CPL § 520.10 (2). (Those most commonly ordered are cash and an alternative commercial lbond.) The bill provides that when monetary bail is set, the judge shall select three or more such options, one of which should be a partially secured or unsecured bond. The issue for consider- ation by the court, as under current law, would be risk of flight. The court would impose the "least restrictive" alternative and conditions that would reasonably assure the defendant's return to court for further proceedings. Certain statutory factors in current law that are not clearly relevant to risk of flight (and are subject to discriminatory application) would be removed (e.g., character, habits, reputation). Non-monetary condi- tions imposed by the court would be "reasonable" and, as noted, designed to assure the principal's return to court. The court would explain on the record or in writing the reasons for the pre-trial alternative chosen and the conditions imposed. When bail or remand was not ordered with respect to an individual charge, and a request is made for nominal bail to be set on the charge, the court would set nominal bail if it determined that the request was voluntary. The state Office of Court Administration would be required to certify one or more pretrial services agencies in each county in the state. In most jurisdictions, this would include the county probation department. Counties could contract with private, non-profit organizations to provide such services, and could contract among themselves for shared services. The court could order electronic location monitoring of the following defendants, as an additional monitoring method, when "no other realistic conditions (would) suffice to reasonably assure the defendant's return to court": (a) charged with a felony, or a misdemeanor crime of domestic violence, or a misdemeanor sex offense, or a misdemeanor and was convicted of a violent felony offense within the past five years, or charged with an offense and is alleged to have intimidated a victim or witness; or (b) persistently willfully f ailed to appear in court as required. A court would have to issue certain findings before determining that monitoring by a pretrial services agency and electronic location moni- toring would be the least restrictive alternative necessary to assure a return to court. Electronic location monitoring would be limited to 60 days, with renewal possible after notice and an opportunity to be heard. The defendant would be considered to be in custody for purposes of CPL §§ 170.70 and 180.80 of the Criminal Procedure Law. No profit making entity could provide electronic location monitoring services or be a pretrial services agency. No risk assessment instrument would be required or recognized for use in the criminal courts. Any such instrument would have to be empirically-validated and regularly revali- dated. The underlying studies and data used in the validation process would have to be publicly accessible. The defendant would be able to obtain a copy of any completed instrument used with the defendant. The public would be able to obtain copies of any such forms regularly used in the county (along with related information, such as instructions). The law would specifically_ state that no such instrument may be discri- minatory or result in disparities based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, marital status, disability, or any other constitu- tionally protected class. If a pre-trial defendant is held in custody, a rehearing within five business days would be scheduled by the court, followed by additional hearings if the defendant remaineds detained. At rehearings, the prose- cution would have to demonstrate by clear and convincing evidence that the detained defendant poses a significant risk of intentional flight to avoid prosecution and no lesser restriction would reasonably assure the defendant's return to court. Expedited disclosure ("discovery") would be required, subject to a protective order. The bill would also amend CPL § 240.44 to provide that, with respect to certain witnesses, discovery provided in advance of pretrial hearings would be provided before a witness testifies rather than at the conclusion of direct examination, subject again to a protective order. The bill would also amend CPL § 510.10 concerning bench warrants. After a failure to appear in court (except when the person is charged with a new crime while at liberty), absent proof that the failure to appear was willful, the court (or county pretrial agency) would give forty-eight hours' notice, to afford the person an opportunity to voluntarily appear. The court or pretrial agency would be authorized to provide notice of court appearances by text, email, telephone or mail. Certain post-arraignment events would render even persons charged with lower-level offenses eligible for a monetary bail order and thus pretrial detention. These include a persistent willful failure to appear in court; violation of an order of protection (see PL § 2 15.51 (b), (c), (d)); charged with a registerable sex offense and alleged to have committed another registerable sex offense; alleged to have intimidated a witness or victim, in violation of PL § 215.15, § 215.16 or § 215.17, while at liberty; or charged with a felony, and alleged to have commit- ted a felony while at liberty.   JUSTIFICATION: Every year, thousands of-New Yorkers are incarcerated awaiting trial simply because they cannot afford to pay bail, a situation that is unfair to families and the less-financially secure among us. The over- whelming majority of persons issued a summons or placed under arrest return to court when required for all further proceedings. Poor and working class New Yorkers are nonetheless incarcerated by the thousands for days, weeks, months -- sometimes years -- before trial, or until a plea agreement is reached, often ultimately involving no more than a sentence of "time served." People who are subject to pre-trial detention experience difficulties and, often, life-altering changes in employment, education, relation- ships, child rearing and custody, housing, and immigration status. Additionally, many studies show no correlation between being able to afford bail and returning to court and/ or re-offending. This bill would directly impact the widespread overreliance on cash bail in New York. It re-emphasizes the requirement that every person unable to afford counsel be represented at arraignment. It establishes a presumption of release, on recognizance in most cases or under non-monetary conditions, with bail and commitment to the sheriff available in limited, specified cases and circumstances. It provides that if a defendant is not released on recognizance or under non-monetary conditions at arraignment, an eviden- tiary hearing would- be held within five business days to determine whether there is clear and convincing proof of a significant flight risk. Thereafter, if the defendant remained in custody, defense counsel could trigger additional re-hearings for consideration of release. This legislation would provide clear guidance to the courts regarding pretrial recognizance decisions, while allowing judges to be responsive to changes and new information that may arise during the pre-trial peri- od. Most importantly, the bill would address an over reliance on finan- cial resources that pervades our current system, and help reassure New Yorkers that, in this state, justice is not for sale.   PRIOR LEGISLATIVE HISTORY: 2017-2018: A10137A - Referred to Rules 2019-2020: A6276 - Referred to Codes 2021-2022: A5984 - Referred to Codes   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: There are no required fiscal costs. Significant savings for local governments and the state can be expected, through a reduction of u necessary pre-trial detention and increased use of alternatives to incarceration.   EFFECTIVE DATE: Thirty days after it shall have become a law.
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A02571 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    January 26, 2023
        Introduced by M. of A. WALKER, SIMON, TAYLOR, L. ROSENTHAL, JEAN-PIERRE,
          once and referred to the Committee on Codes
        AN ACT to amend the criminal procedure law, in relation to the  issuance
          of securing orders and in relation to making conforming changes

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The criminal procedure law  is  amended  by  adding  a  new
     2  section 510.25 to read as follows:
     3  § 510.25 Rehearing after five days in custody.
     4    1.  In addition to any other available pre-conviction motion or proce-
     5  dure, a principal for whom bail is authorized and was fixed, or who  was
     6  remanded  to  the  custody  of  the  sheriff but is legally eligible for
     7  release, and who is in custody five days thereafter,  shall  be  brought
     8  before  the  court  the  next business day for a hearing on the securing
     9  order.
    10    2. The people must establish by clear and convincing evidence that the
    11  principal poses a significant risk of intentional flight to avoid prose-
    12  cution, and that no condition or combination of conditions will  reason-
    13  ably assure the principal's return to court. Where the principal has not
    14  been  indicted, and reasonable cause has not previously been established
    15  pursuant to the relevant provisions of sections 180.60,  180.70,  180.75
    16  and  180.80 of this chapter or this section, the people must also estab-
    17  lish probable cause that the principal committed the charged offense.
    18    3. If the people fail pursuant to subdivision two of this  section  to
    19  establish  that  the  principal  poses a significant risk of intentional
    20  flight to avoid prosecution and that no other condition  or  combination
    21  of conditions will reasonably assure the principal's return to court, or
    22  in  a case where there is no indictment and no previous finding pursuant
    23  to sections 180.60, 180.70, 180.75 and 180.80 or this  section  and  the
    24  people fail to establish probable cause that the defendant committed the
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2571                             2
     1  charged  offense,  the court shall, by a new securing order, release the
     2  principal on the  principal's  own  recognizance  or,  where  authorized
     3  pursuant  to this title and articles one hundred seventy and one hundred
     4  eighty  of  this  chapter,  under  non-monetary conditions, except where
     5  another type of securing order is shown to be required by law.
     6    4. At the hearing, the principal shall have the right  to  be  repres-
     7  ented  by  counsel and, if financially unable to obtain counsel, to have
     8  counsel assigned. The principal shall  be  afforded  an  opportunity  to
     9  testify,  present  witnesses,  cross-examine witnesses who appear at the
    10  hearing and present information by proffer or  otherwise.    The  prose-
    11  cution  must  present  competent,  reliable evidence and may not rely on
    12  hearsay evidence to satisfy its burden.
    13    5. Prior to the hearing, in addition  to  the  discovery  required  by
    14  section  240.44  of this chapter, and subject to a protective order, the
    15  prosecution shall disclose to the principal, and permit the principal to
    16  discover, inspect, copy or photograph, on an  ongoing  basis  continuing
    17  after such hearing, all statements and reports that relate or related to
    18  the  prosecution's  request  for  continued  detention  which are in the
    19  possession, custody or control of the prosecution, or persons under  the
    20  prosecution's direction and control, including:
    21    a.  the charging documents, such as the complaint and any information,
    22  and the documents and materials supporting the charging documents;
    23    b. police and law enforcement reports;
    24    c. all statements, written or recorded or summarized in any writing or
    25  recording, and the substance of all oral statements, made by the princi-
    26  pal or a co-defendant;
    27    d. all statements, written or recorded or summarized in any writing or
    28  recording, made by persons whom the prosecutor knows to have evidence or
    29  information that relates to the subject matter of the case  or  proceed-
    30  ing;
    31    e.  all statements or reports on which, as applicable, the prosecution
    32  intends to rely or relied at the hearing; and
    33    f. all facts, evidence and information  favorable  to  the  principal,
    34  including  but  not  limited to information that tends to negate risk of
    35  flight or the principal's guilt or that tends to  mitigate  the  princi-
    36  pal's  culpability  as  to a charged offense, or that tends to support a
    37  potential defense thereto, or that tends to support a motion to suppress
    38  evidence on constitutional or statutory grounds, or that is relevant  to
    39  a witness's credibility, without regard to the materiality of the infor-
    40  mation, or that would tend to mitigate or reduce punishment if the prin-
    41  cipal were convicted.
    42    6.  This  process  shall  continue  with  additional  rehearings, held
    43  promptly on reasonable written  request  of  defense  counsel,  made  on
    44  notice to the people.
    45    § 2. Paragraphs (c), (d) and (e) of subdivision 1 of section 510.30 of
    46  the criminal procedure law, as amended by section 2 of subpart C of part
    47  UU of chapter 56 of the laws of 2022, are amended to read as follows:
    48    (c)  The principal's criminal conviction record, if any; provided that
    49  the court must also consider and take into account  the  time  that  has
    50  elapsed  since the occurrence of such crime or crimes and the age of the
    51  principal at the time of the occurrence of such crime or crimes;
    52    (d) The principal's record of  previous  adjudication  as  a  juvenile
    53  delinquent,  as  retained  pursuant to section 354.2 of the family court
    54  act, or, of pending cases where fingerprints are  retained  pursuant  to
    55  section  306.1  of  such  act,  or a youthful offender, if any; provided
    56  that the  court  must also consider and take into account the time  that

        A. 2571                             3
     1  has  elapsed since the occurrence of such delinquency or youthful offen-
     2  der conduct and the age of the principal at the time of such delinquency
     3  or youthful offender conduct;
     4    (e) The principal's previous record with respect to intentional flight
     5  to avoid criminal prosecution;
     6    §  3.  Subparagraph  (i)  of paragraph (b) of subdivision 3 of section
     7  510.45 of the criminal procedure law, as added by section 8 of part  JJJ
     8  of chapter 59 of the laws of 2019, is amended to read as follows:
     9    (i)  designed  and  implemented  in a way that ensures the results are
    10  free from discrimination and any  disparate  impacts  on  detention  and
    11  other outcomes on the basis of race, creed, color, national origin, sex,
    12  sexual  orientation,  gender  identity  or  expression, military status,
    13  disability, or any other protected class, regarding the use thereof; and
    14    § 4. This act shall take effect on the thirtieth day  after  it  shall
    15  have become a law.
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