Defines the crimes that would lead a defendant to be categorized as a "person who must be committed to the custody of the sheriff" and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances; sets out procedures for above.
STATE OF NEW YORK
________________________________________________________________________
4559
2011-2012 Regular Sessions
IN ASSEMBLY
February 4, 2011
___________
Introduced by M. of A. RAIA -- Multi-Sponsored by -- M. of A. FITZPA-
TRICK, McDONOUGH, J. MILLER, TEDISCO -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to denial of
recognizance or bail in certain cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 500.10 of the criminal procedure law is amended by
2 adding a new subdivision 21 to read as follows:
3 21. "Person who must be committed to the custody of the sheriff" means
4 a person who:
5 (a) Is charged by felony complaint or indictment with one or more of
6 the following crimes. Murder in the first degree, murder in the second
7 degree, arson in the first degree, arson in the second degree, aggra-
8 vated assault upon a police officer or a peace officer, criminal use of
9 a firearm in the first degree, criminal use of a firearm in the second
10 degree, rape in the first degree, sodomy in the first degree, attempt to
11 commit any of the foregoing crimes, manslaughter in the first degree,
12 robbery in the first degree, burglary in the first degree, robbery in
13 the second degree as defined by subdivision two of section 160.10 of the
14 penal law, or burglary in the second degree as defined by subdivision
15 one of section 140.25 of the penal law; and
16 (b) Either (i) previously has been convicted of one or more of the
17 crimes specified in paragraph (a) of this subdivision, or (ii) previous-
18 ly has been convicted of any felony in this state, or any offense
19 committed in another jurisdiction that would be a felony if committed in
20 this state, provided such crime was committed within five years preced-
21 ing the date the crime for which a securing order is to be made is
22 alleged to have been committed, or (iii) is subject to an order of
23 recognizance or bail made by a court of this state in the course of
24 another criminal action based upon a charge of felony, or had escaped
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06616-01-1
A. 4559 2
1 from a detention facility in this state, and the crime presently charged
2 is alleged to have been committed while the defendant was at liberty
3 pursuant to such order or as a result of such escape.
4 § 2. Section 510.20 of the criminal procedure law is amended by adding
5 a new subdivision 3 to read as follows:
6 3. Where it appears that a defendant is a person who must be committed
7 to the custody of the sheriff as defined in subdivision twenty-one of
8 section 500.10 of this title, the defendant must be given an opportunity
9 to be heard for the purpose of controverting any factor specified in
10 paragraph (b) of such subdivision relied upon to support such appear-
11 ance. If the defendant does contest any such factor, the burden of proof
12 shall be upon the people to prove the contested factor by a preponder-
13 ance of the evidence and the court may receive any relevant evidence not
14 legally privileged. For the purposes of any such hearing the date shown
15 on the fingerprint report as the date of arrest for a prior crime shall
16 be deemed prima facie evidence of the date on which that crime was
17 committed.
18 § 3. Subdivision 3 of section 510.30 of the criminal procedure law is
19 renumbered subdivision 4 and a new subdivision 3 is added to read as
20 follows:
21 3. (a) Where an application for recognizance or bail has been denied
22 solely on the ground that the defendant is a person who must be commit-
23 ted to the custody of the sheriff, as defined in subdivision twenty-one
24 of section 500.10 of this title, an application for recognizance or bail
25 may be granted by a judge of a superior court pursuant to section 530.30
26 of this chapter if the defendant has not been indicted, or pursuant to
27 section 530.40 of this title if an indictment has been filed, in any
28 case where the court determines that:
29 (i) An order of recognizance or bail should be issued pursuant to
30 subdivision two of this section; and
31 (ii) The release of the defendant is in furtherance of the interests
32 of justice based solely upon one or more of the following factors: (1)
33 mitigating circumstances that bear directly upon the manner in which the
34 present crime was committed; (2) no serious harm was caused or threat-
35 ened by the present crime; (3) where the defendant was not the sole
36 participant in the present crime, the defendant's participation was
37 relatively minor, although not so minor as to constitute a defense to
38 the prosecution; or
39 (iii) The defendant has not been afforded an opportunity for trial
40 within sixty days from the date of arrest computed after excluding the
41 number of days the criminal proceeding has been delayed pursuant to
42 request or consent or the condition of the defendant or by reason of
43 motions made or other action on the part of the defendant; or
44 (iv) The people have not proceeded with due diligence at any stage of
45 the criminal action and the people are unable to show good cause for
46 such failure to proceed, but good cause for the purpose of such showing
47 shall not include the lack of judicial or nonjudicial personnel or the
48 lack of an available courtroom or adequate prosecutorial staff.
49 (b) If the court determines to grant an order of recognizance or bail
50 pursuant to paragraph (a) of this subdivision, it shall state on the
51 record the factors upon which its determination is based and the court
52 shall give its reasons in detail, not in conclusory terms.
53 (c) For the purpose of making a determination pursuant to paragraph
54 (a) of this subdivision, the court may make such inquiry as it deems
55 necessary. Any evidence which is not legally privileged may be intro-
56 duced. If the defendant testifies, his or her testimony may not be
A. 4559 3
1 introduced against him or her on the trial of any crime arising out of
2 the criminal transaction upon which the pending charge is based, except
3 to impeach his or her testimony at such trial as inconsistent with prior
4 testimony.
5 § 4. Section 530.10 of the criminal procedure law is amended to read
6 as follows:
7 § 530.10 Order of recognizance or bail; in general.
8 Under circumstances prescribed in this article, a court, upon applica-
9 tion of a defendant charged with or convicted of an offense, is required
10 or authorized to order or to deny bail or recognizance for the release
11 or prospective release of such defendant during the pendency of either:
12 1. A criminal action based upon such charge; or
13 2. An appeal taken by the defendant from a judgment of conviction or a
14 sentence or from an order of an intermediate appellate court affirming
15 or modifying a judgment of conviction or a sentence.
16 § 5. Section 530.20 of the criminal procedure law, as amended by chap-
17 ter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of
18 subdivision 2 as amended by chapter 218 of the laws of 1979, is amended
19 to read as follows:
20 § 530.20 Order of recognizance or bail; by local criminal court when
21 action is pending therein.
22 When a criminal action is pending in a local criminal court, such
23 court, upon application of a defendant, must or may order recognizance
24 or bail as follows:
25 1. When the defendant is charged, by information, simplified informa-
26 tion, prosecutor's information or misdemeanor complaint, with an offense
27 or offenses of less than felony grade only, the court must order recog-
28 nizance or bail.
29 2. When the defendant is charged, by felony complaint, with a felony,
30 the court may, in its discretion, order or deny recognizance or bail
31 except as otherwise provided in this subdivision:
32 (a) A city court, a town court or a village court may not order
33 recognizance or bail when (i) the defendant is charged with a class A
34 felony, or (ii) the defendant is charged with the crime of aggravated
35 assault upon a police officer or a peace officer, or (iii) it appears
36 that the defendant has two previous felony convictions;
37 (b) No local criminal court may order recognizance or bail when it
38 appears that the defendant is a person who must be committed to the
39 custody of the sheriff as defined in subdivision twenty-one of section
40 500.10 of this title.
41 (c) No local criminal court may order recognizance or bail with
42 respect to a defendant charged with a felony unless and until:
43 (i) The district attorney has been heard in the matter or, after
44 knowledge or notice of the application and reasonable opportunity to be
45 heard, has failed to appear at the proceeding or has otherwise waived
46 his right to do so; and
47 (ii) The court has been furnished with a report of the division of
48 criminal justice services concerning the defendant's criminal record if
49 any or with a police department report with respect to the defendant's
50 prior arrest record. If neither report is available, the court, with
51 the consent of the district attorney, may dispense with this require-
52 ment; provided, however, that in an emergency, including but not limited
53 to a substantial impairment in the ability of such division or police
54 department to timely furnish such report, such consent shall not be
55 required if, for reasons stated on the record, the court deems it unnec-
56 essary. When the court has been furnished with any such report or
A. 4559 4
1 record, it shall furnish a copy thereof to counsel for the defendant or,
2 if the defendant is not represented by counsel, to the defendant.
3 3. Where a local criminal court lacks authority to order recognizance
4 or bail by reason of the fact that it appears the defendant is a person
5 who must be committed to the custody of the sheriff, as defined in
6 subdivision twenty-one of section 500.10 of this title and after a hear-
7 ing finds there is reasonable cause to believe the defendant committed a
8 felony but there is not reasonable cause to believe the defendant
9 committed one of the crimes specified in paragraph (a) of such subdivi-
10 sion, the court shall convert the felony complaint into one that does
11 not charge a crime specified in such paragraph by making appropriate
12 notations upon or attached thereto and the court may then proceed to
13 determine an application for bail or recognizance in the same manner and
14 in accordance with the same criteria as it would with respect to a
15 defendant other than one who must be committed to the custody of the
16 sheriff.
17 § 6. Section 530.30 of the criminal procedure law, subdivision 2 as
18 amended by chapter 762 of the laws of 1971, is amended to read as
19 follows:
20 § 530.30 Order of recognizance or bail; by superior court judge when
21 action is pending in local criminal court.
22 1. [When] Except as provided in subdivision two of this section, when
23 a criminal action is pending in a local criminal court, other than one
24 consisting of a superior court judge sitting as such, a judge of a supe-
25 rior court holding a term thereof in the county, upon application of a
26 defendant, may order recognizance or bail when such local criminal
27 court:
28 (a) Lacks authority to issue such an order, pursuant to paragraph (a)
29 of subdivision two of section 530.20 of this article; or
30 (b) Has denied an application for recognizance or bail; or
31 (c) Has fixed bail which is excessive. In such case, such superior
32 court judge may vacate the order of such local criminal court and
33 release the defendant on his own recognizance or fix bail in a lesser
34 amount or in a less burdensome form.
35 2. When a criminal action is pending in a local criminal court and
36 such court lacks authority to order recognizance or bail pursuant to
37 paragraph (b) of subdivision two of section 530.20 of this article by
38 reason of the fact that it appears that the defendant is a person who
39 must be committed to the custody of the sheriff as defined in subdivi-
40 sion twenty-one of section 500.10 of this title, a judge of a superior
41 court holding a term thereof in the county, upon application of a
42 defendant, may order recognizance or bail, but only in accordance with
43 the provisions of subdivision three of section 510.30 of this title.
44 3. Notwithstanding the provisions of [subdivision] subdivisions one
45 and two of this section, when the defendant is charged with a felony in
46 a local criminal court, a superior court judge may not order recogni-
47 zance or bail unless and until the district attorney has had an opportu-
48 nity to be heard in the matter and such judge has been furnished with a
49 report as described in subparagraph (ii) of paragraph [(b)] (c) of
50 subdivision two of section 530.20 of this article.
51 [3] 4. Not more than one application may be made pursuant to this
52 section.
53 § 7. Subdivision 4 of section 530.40 of the criminal procedure law, as
54 amended by chapter 762 of the laws of 1971, is amended and a new subdi-
55 vision 5 is added to read as follows:
A. 4559 5
1 4. Notwithstanding the provisions of subdivision two of this section,
2 a superior court may not order recognizance or bail when the defendant
3 is charged with a felony unless and until the district attorney has had
4 an opportunity to be heard in the matter and such court has been
5 furnished with a report as described in subparagraph (ii) of paragraph
6 [(b)] (c) of subdivision two of section 530.20 of this article.
7 5. Notwithstanding the provisions of subdivision two of this section,
8 a superior court may not order recognizance or bail when it appears that
9 the defendant is a person who must be committed to the custody of the
10 sheriff as defined in subdivision twenty-one of section 500.10 of this
11 title unless in accordance with the provisions of subdivision three of
12 section 510.30 of this title.
13 § 8. This act shall take effect on the first of November next succeed-
14 ing the date on which it shall have become a law.
