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.
STATE OF NEW YORK
________________________________________________________________________
2571
2023-2024 Regular Sessions
IN ASSEMBLY
January 26, 2023
___________
Introduced by M. of A. WALKER, SIMON, TAYLOR, L. ROSENTHAL, JEAN-PIERRE,
SEAWRIGHT, WEPRIN, WILLIAMS, COOK, DICKENS, DAVILA, PRETLOW -- read
once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to the issuance
of securing orders and in relation to making conforming changes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. 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.
LBD07099-01-3
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.
