Amd §§500.10, 510.10, 510.20, 510.30, 510.45, 530.20 & 530.40, rpld §510.45 sub 3 ¶(b), §530.20 sub 1 ¶(b),
CP L
 
Restores judicial discretion relating to bail reform; provides that when the defendant is charged with a felony, the court shall request of the applicable county pre-trial services agency a risk and needs assessment be conducted on the eligible defendant for the purpose of determining whether such defendant should be released on the defendant's own recognizance, released under non-monetary conditions or, where authorized, bail or commit the defendant to the custody of the sheriff; defines risks and needs assessment; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
9885
IN ASSEMBLY
February 20, 2020
___________
Introduced by M. of A. MALLIOTAKIS -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to bail reform;
and to repeal certain provisions of such law relating thereto
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 23 to read as follows:
3 23. "Risk and needs assessment" means a risk and needs assessment
4 instrument, approved by the chief administrative judge of the unified
5 court system. Such approved assessment instrument shall be objective,
6 standardized and developed based on analysis of empirical data and risk
7 factors relevant to the principal's danger to the community and risk of
8 failure of a principal to appear. Such approved assessment instrument
9 shall not be discriminatory based on race, national origin, sex, any
10 other protected class or socioeconomic status.
11 § 2. Section 510.10 of the criminal procedure law, as amended by
12 section 2 of part JJJ of chapter 59 of the laws of 2019, is amended to
13 read as follows:
14 § 510.10 Securing order; when required; alternatives available; standard
15 to be applied.
16 1. When a principal, whose future court attendance at a criminal
17 action or proceeding is or may be required, comes under the control of a
18 court, such court shall, in accordance with this title, by a securing
19 order [release the principal] request of the applicable county pre-trial
20 services agency that a risk and needs assessment be conducted on the
21 eligible principal and such court shall take into account the risk and
22 needs assessment, but such assessment shall not be the sole determina-
23 tive factor, for the purpose of determining whether such principal
24 should be released on the principal's own recognizance, [release the
25 principal] released under non-monetary conditions, or, where authorized,
26 fix bail or commit the principal to the custody of the sheriff. In all
27 such cases, except where another type of securing order is shown to be
28 required by law, the court shall release the principal pending trial on
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14842-05-0
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1 the principal's own recognizance, unless [it is] the risk and needs
2 assessment has demonstrated and the court [makes an individualized
3 determination] determines that the principal is a danger to the communi-
4 ty or poses a risk of flight to avoid prosecution. If such a finding
5 specific to risk of flight to avoid prosecution is made, the court must
6 select the least restrictive alternative and condition or conditions
7 that will reasonably assure the principal's return to court. The court
8 shall explain its choice of release, release with conditions, bail or
9 remand on the record or in writing.
10 2. A principal is entitled to representation by counsel under this
11 chapter in preparing an application for release, when a securing order
12 is being considered and when a securing order is being reviewed for
13 modification, revocation or termination. If the principal is financially
14 unable to obtain counsel, counsel shall be assigned to the principal.
15 [3. In cases other than as described in subdivision four of this
16 section the court shall release the principal pending trial on the prin-
17 cipal's own recognizance, unless the court finds on the record or in
18 writing that release on the principal's own recognizance will not
19 reasonably assure the principal's return to court. In such instances,
20 the court shall release the principal under non-monetary conditions,
21 selecting the least restrictive alternative and conditions that will
22 reasonably assure the principal's return to court. The court shall
23 explain its choice of alternative and conditions on the record or in
24 writing.
25 4. Where the principal stands charged with a qualifying offense, the
26 court, unless otherwise prohibited by law, may in its discretion release
27 the principal pending trial on the principal's own recognizance or under
28 non-monetary conditions, fix bail, or, where the defendant is charged
29 with a qualifying offense which is a felony, the court may commit the
30 principal to the custody of the sheriff. A principal stands charged with
31 a qualifying offense for the purposes of this subdivision when he or she
32 stands charged with:
33 (a) a felony enumerated in section 70.02 of the penal law, other than
34 burglary in the second degree as defined in subdivision two of section
35 140.25 of the penal law or robbery in the second degree as defined in
36 subdivision one of section 160.10 of the penal law;
37 (b) a crime involving witness intimidation under section 215.15 of the
38 penal law;
39 (c) a crime involving witness tampering under section 215.11, 215.12
40 or 215.13 of the penal law;
41 (d) a class A felony defined in the penal law, other than in article
42 two hundred twenty of such law with the exception of section 220.77 of
43 such law;
44 (e) a felony sex offense defined in section 70.80 of the penal law or
45 a crime involving incest as defined in section 255.25, 255.26 or 255.27
46 of such law, or a misdemeanor defined in article one hundred thirty of
47 such law;
48 (f) conspiracy in the second degree as defined in section 105.15 of
49 the penal law, where the underlying allegation of such charge is that
50 the defendant conspired to commit a class A felony defined in article
51 one hundred twenty-five of the penal law;
52 (g) money laundering in support of terrorism in the first degree as
53 defined in section 470.24 of the penal law; money laundering in support
54 of terrorism in the second degree as defined in section 470.23 of the
55 penal law; or a felony crime of terrorism as defined in article four
A. 9885 3
1 hundred ninety of the penal law, other than the crime defined in section
2 490.20 of such law;
3 (h) criminal contempt in the second degree as defined in subdivision
4 three of section 215.50 of the penal law, criminal contempt in the first
5 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
6 the penal law or aggravated criminal contempt as defined in section
7 215.52 of the penal law, and the underlying allegation of such charge of
8 criminal contempt in the second degree, criminal contempt in the first
9 degree or aggravated criminal contempt is that the defendant violated a
10 duly served order of protection where the protected party is a member of
11 the defendant's same family or household as defined in subdivision one
12 of section 530.11 of this article; or
13 (i) facilitating a sexual performance by a child with a controlled
14 substance or alcohol as defined in section 263.30 of the penal law, use
15 of a child in a sexual performance as defined in section 263.05 of the
16 penal law or luring a child as defined in subdivision one of section
17 120.70 of the penal law.
18 5. Notwithstanding the provisions of subdivisions three and four of
19 this section, with] 3. With respect to any charge for which bail or
20 remand is not ordered, and for which the court would not [or could not]
21 otherwise require bail or remand, a defendant may, at any time, request
22 that the court set bail in a nominal amount requested by the defendant
23 in the form specified in paragraph (a) of subdivision one of section
24 520.10 of this title; if the court is satisfied that the request is
25 voluntary, the court shall set such bail in such amount.
26 [6.] 4. When a securing order is revoked or otherwise terminated in
27 the course of an uncompleted action or proceeding but the principal's
28 future court attendance still is or may be required and the principal is
29 still under the control of a court, a new securing order must be issued.
30 When the court revokes or otherwise terminates a securing order which
31 committed the principal to the custody of the sheriff, the court shall
32 give written notification to the sheriff of such revocation or termi-
33 nation of the securing order.
34 § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
35 amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is
36 amended to read as follows:
37 1. Upon any occasion when a court has issued a securing order with
38 respect to a principal and the principal is confined in the custody of
39 the sheriff as a result of the securing order or a previously issued
40 securing order, the principal may make an application for recognizance,
41 release under non-monetary conditions or bail. Any such decision by the
42 court for a change in a securing order with respect to a principal shall
43 take into account the risk and needs assessment conducted by the appli-
44 cable county pre-trial services agency, but such assessment shall not be
45 the sole determinative factor.
46 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
47 amended by section 5 of part JJJ of chapter 59 of the laws of 2019, is
48 amended to read as follows:
49 1. With respect to any principal, the court in all cases, unless
50 otherwise provided by law, must impose the least restrictive kind and
51 degree of control or restriction that is necessary to secure the princi-
52 pal's return to court when required unless such principal poses a danger
53 to the community. In determining that matter, the court [must] in addi-
54 tion to taking into account the risk and needs assessment conducted by
55 the applicable county pre-trial services agency may, on the basis of
56 available information, consider and take into account information about
A. 9885 4
1 the principal that is relevant to the principal's return to court,
2 including:
3 (a) The principal's activities and history;
4 (b) If the principal is a defendant, the charges facing the principal;
5 (c) The principal's criminal conviction record if any;
6 (d) The principal's record of previous adjudication as a juvenile
7 delinquent, as retained pursuant to section 354.2 of the family court
8 act, or, of pending cases where fingerprints are retained pursuant to
9 section 306.1 of such act, or a youthful offender, if any;
10 (e) The principal's previous record with respect to flight to avoid
11 criminal prosecution;
12 (f) If monetary bail is authorized, according to the restrictions set
13 forth in this title, the principal's individual financial circumstances,
14 and, in cases where bail is authorized, the principal's ability to post
15 bail without posing undue hardship, as well as his or her ability to
16 obtain a secured, unsecured, or partially secured bond;
17 (g) Where the principal is charged with a crime or crimes against a
18 member or members of the same family or household as that term is
19 defined in subdivision one of section 530.11 of this title, the follow-
20 ing factors:
21 (i) any violation by the principal of an order of protection issued by
22 any court for the protection of a member or members of the same family
23 or household as that term is defined in subdivision one of section
24 530.11 of this title, whether or not such order of protection is
25 currently in effect; and
26 (ii) the principal's history of use or possession of a firearm; and
27 (h) If the principal is a defendant, in the case of an application for
28 a securing order pending appeal, the merit or lack of merit of the
29 appeal.
30 § 5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal
31 procedure law, as added by section 8 of part JJJ of chapter 59 of the
32 laws of 2019, is amended to read as follows:
33 [(a) Any questionnaire, instrument or tool] The risk and needs assess-
34 ment instrument used with a principal in the process of considering or
35 determining the principal's possible release on recognizance, release
36 under non-monetary conditions or on bail, or used with a principal in
37 the process of considering or determining a condition or conditions of
38 release or monitoring by a pretrial services agency, shall be promptly
39 made available to the principal and the principal's counsel upon [writ-
40 ten] request. [Any such blank form questionnaire, instrument or tool]
41 Any such blank risk and needs assessment instrument regularly used in
42 the county for such purpose or a related purpose shall be made available
43 to any person promptly upon written request.
44 § 6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal
45 procedure law is REPEALED.
46 § 7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal
47 procedure law, as added by section 16 of part JJJ of chapter 59 of the
48 laws of 2019, is amended to read as follows:
49 (a) [In cases other than as described in paragraph (b) of this subdi-
50 vision the] When the principal is charged with an offense or offenses of
51 less than felony grade only, the court shall [release the] request of
52 the applicable county pre-trial services agency a risk and needs assess-
53 ment be conducted on the eligible principal and the court shall take
54 into account the risk and needs assessment, but such assessment shall
55 not be the sole determinative factor, for the purpose of determining
56 whether such principal should be released pending trial on the princi-
A. 9885 5
1 pal's own recognizance, [unless the court finds on the record or in
2 writing that release on the principal's own recognizance will not
3 reasonably assure the principal's return to court. In such instances,
4 the court shall release the principal under non-monetary conditions,
5 selecting the least restrictive alternative and conditions that will
6 reasonably assure the principal's return to court] released under non-
7 monetary conditions, or where authorized, fix bail or commit the princi-
8 pal to the custody of the sheriff. The court shall explain its choice of
9 [alternative and] release, release with conditions, bail or remand on
10 the record or in writing.
11 § 8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal
12 procedure law is REPEALED.
13 § 9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal
14 procedure law, as added by section 16 of part JJJ of chapter 59 of the
15 laws of 2019, is relettered paragraph (b) and amended to read as
16 follows:
17 (b) [Notwithstanding the provisions of paragraphs (a) and (b) of this
18 subdivision, with] With respect to any charge for which bail or remand
19 is not ordered, and for which the court would not [or could not] other-
20 wise require bail or remand, a defendant may, at any time, request that
21 the 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.
25 § 10. The opening paragraph of subdivision 2 of section 530.20 of the
26 criminal procedure law, as amended by section 16 of part JJJ of chapter
27 59 of the laws of 2019, is amended to read as follows:
28 When the defendant is charged, by felony complaint, with a felony, the
29 court [may, in its discretion, order] shall, request of the applicable
30 county pre-trial services agency a risk and needs assessment be
31 conducted on the eligible defendant and the court shall take into
32 account the risk and needs assessment, but such assessment shall not be
33 the sole determinative factor, for the purpose of determining whether
34 such defendant should be released on the defendant's own recognizance,
35 [release] released under non-monetary conditions, or, where authorized,
36 bail or commit the defendant to the custody of the sheriff except as
37 otherwise provided in [subdivision one of this section or] this subdivi-
38 sion:
39 § 11. Section 530.40 of the criminal procedure law, as amended by
40 section 18 of part JJJ of chapter 59 of the laws of 2019, is amended to
41 read as follows:
42 § 530.40 Order of recognizance, release under non-monetary conditions or
43 bail; by superior court when action is pending therein.
44 When a criminal action is pending in a superior court, such court,
45 upon application of a defendant, must or may order recognizance or bail
46 as follows:
47 1. When the defendant is charged with an offense or offenses of less
48 than felony grade only, the court must, request of the applicable county
49 pre-trial services agency a risk and needs assessment be conducted on
50 the eligible defendant and the court shall take into account the risk
51 and needs assessment, but such assessment shall not be the sole determi-
52 native factor, for the purpose of determining whether such defendant,
53 unless otherwise provided by law, should be released on an order of
54 recognizance or bail or release under non-monetary conditions [in
55 accordance with this section] or commit the defendant to the custody of
56 the sheriff.
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1 2. When the defendant is charged with a felony, the court [may, unless
2 otherwise provided by law in its discretion, order] shall request of
3 the applicable county pre-trial services agency a risk and needs assess-
4 ment be conducted on the eligible defendant and the court shall take
5 into account the risk and needs assessment, but such assessment shall
6 not be the sole determinative factor, for the purpose of determining
7 whether such defendant should be released on the defendant's own recog-
8 nizance, [release] released under non-monetary conditions or, where
9 authorized, bail or commit the defendant to the custody of the sheriff.
10 In any such case in which an indictment (a) has resulted from an order
11 of a local criminal court holding the defendant for the action of the
12 grand jury, or (b) was filed at a time when a felony complaint charging
13 the same conduct was pending in a local criminal court, and in which
14 such local criminal court or a superior court judge has issued an order
15 of recognizance, release under non-monetary conditions or, where author-
16 ized, bail which is still effective, the superior court's order may be
17 in the form of a direction continuing the effectiveness of the previous
18 order.
19 [3. In cases other than as described in subdivision four of this
20 section the court shall release the principal pending trial on the prin-
21 cipal's own recognizance, unless the court finds on the record or in
22 writing that release on the principal's own recognizance will not
23 reasonably assure the principal's return to court. In such instances,
24 the court shall release the principal under non-monetary conditions,
25 selecting the least restrictive alternative and conditions that will
26 reasonably assure the principal's return to court. The court shall
27 explain its choice of alternative and conditions on the record or in
28 writing.
29 4. Where the principal stands charged with a qualifying offense, the
30 court, unless otherwise prohibited by law, may in its discretion release
31 the principal pending trial on the principal's own recognizance or under
32 non-monetary conditions, fix bail, or, where the defendant is charged
33 with a qualifying offense which is a felony, the court may commit the
34 principal to the custody of the sheriff. The court shall explain its
35 choice of release, release with conditions, bail or remand on the record
36 or in writing. A principal stands charged with a qualifying offense for
37 the purposes of this subdivision when he or she stands charged with:
38 (a) a felony enumerated in section 70.02 of the penal law, other than
39 burglary in the second degree as defined in subdivision two of section
40 140.25 of the penal law or robbery in the second degree as defined in
41 subdivision one of section 160.10 of the penal law;
42 (b) a crime involving witness intimidation under section 215.15 of the
43 penal law;
44 (c) a crime involving witness tampering under section 215.11, 215.12
45 or 215.13 of the penal law;
46 (d) a class A felony defined in the penal law, other than in article
47 two hundred twenty of such law with the exception of section 220.77 of
48 such law;
49 (e) a felony sex offense defined in section 70.80 of the penal law or
50 a crime involving incest as defined in section 255.25, 255.26 or 255.27
51 of such law, or a misdemeanor defined in article one hundred thirty of
52 such law;
53 (f) conspiracy in the second degree as defined in section 105.15 of
54 the penal law, where the underlying allegation of such charge is that
55 the defendant conspired to commit a class A felony defined in article
56 one hundred twenty-five of the penal law;
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1 (g) money laundering in support of terrorism in the first degree as
2 defined in section 470.24 of the penal law; money laundering in support
3 of terrorism in the second degree as defined in section 470.23 of the
4 penal law; or a felony crime of terrorism as defined in article four
5 hundred ninety of the penal law, other than the crime defined in section
6 490.20 of such law;
7 (h) criminal contempt in the second degree as defined in subdivision
8 three of section 215.50 of the penal law, criminal contempt in the first
9 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
10 the penal law or aggravated criminal contempt as defined in section
11 215.52 of the penal law, and the underlying allegation of such charge of
12 criminal contempt in the second degree, criminal contempt in the first
13 degree or aggravated criminal contempt is that the defendant violated a
14 duly served order of protection where the protected party is a member of
15 the defendant's same family or household as defined in subdivision one
16 of section 530.11 of this article; or
17 (i) facilitating a sexual performance by a child with a controlled
18 substance or alcohol as defined in section 263.30 of the penal law, use
19 of a child in a sexual performance as defined in section 263.05 of the
20 penal law or luring a child as defined in subdivision one of section
21 120.70 of the penal law.
22 5. Notwithstanding the provisions of subdivisions three and four of
23 this section, with] 3. With respect to any charge for which bail or
24 remand is not ordered, and for which the court would not [or could not]
25 otherwise require bail or remand, a defendant may, at any time, request
26 that the court set bail in a nominal amount requested by the defendant
27 in the form specified in paragraph (a) of subdivision one of section
28 520.10 of this title; if the court is satisfied that the request is
29 voluntary, the court shall set such bail in such amount.
30 [6.] 4. Notwithstanding the provisions of [subdivisions] subdivision
31 two[, three and four] of this section, a superior court may not order
32 recognizance, release under non-monetary conditions or, where author-
33 ized, bail, or permit a defendant to remain at liberty pursuant to an
34 existing order, after the defendant has been convicted of either: (a) a
35 class A felony or (b) any class B or class C felony as defined in arti-
36 cle one hundred thirty of the penal law committed or attempted to be
37 committed by a person eighteen years of age or older against a person
38 less than eighteen years of age. In either case the court must commit or
39 remand the defendant to the custody of the sheriff.
40 [7.] 5. Notwithstanding the provisions of [subdivisions] subdivision
41 two[, three and four] of this section, a superior court may not order
42 recognizance, release under non-monetary conditions or, where author-
43 ized, bail when the defendant is charged with a felony unless and until
44 the district attorney has had an opportunity to be heard in the matter
45 and such court and counsel for the defendant have been furnished with a
46 report as described in subparagraph (ii) of paragraph (b) of subdivision
47 two of section 530.20 of this article.
48 § 12. This act shall take effect immediately.