Permits judicial discretion based on dangerousness when issuing a securing order and allows for limited pre-trial detention upon such a determination; extends the time period for discovery from fifteen to forty-five days; permits the immediate issuance of a bench warrant for failure to appear for certain principals charged with hate crimes; places restrictions on when appearance tickets may be issued.
STATE OF NEW YORK
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11122
IN ASSEMBLY
November 6, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Reilly) --
read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to permitting
judicial discretion based on dangerousness when issuing a securing
order, extending the time period for discovery, permits the immediate
issuance of a bench warrant for failure to appear for certain princi-
pals, and places restrictions on when appearance tickets may be issued
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 3 of section 510.10 of the criminal
2 procedure law, subdivision 1 as amended and subdivision 3 as added by
3 section 2 of part JJJ of chapter 59 of the laws of 2019, are amended to
4 read as follows:
5 1. When a principal, whose future court attendance at a criminal
6 action or proceeding is or may be required, comes under the control of a
7 court, such court shall, in accordance with this title, by a securing
8 order release the principal on the principal's own recognizance, release
9 the principal under non-monetary conditions, or, where authorized, fix
10 bail or commit the principal to the custody of the sheriff. In all such
11 cases, except where another type of securing order is shown to be
12 required by law, the court shall release the principal pending trial on
13 the principal's own recognizance, unless it is demonstrated and the
14 court makes an individualized determination that the principal poses a
15 risk of flight to avoid prosecution or that the principal poses a danger
16 to a person or the community. If such a finding is made, the court must
17 select the least restrictive alternative and condition or conditions
18 that will reasonably assure the principal's return to court. The court
19 shall explain its choice of release, release with conditions, bail or
20 remand on the record [or] and in writing.
21 3. In cases other than as described in subdivision four of this
22 section the court shall release the principal pending trial on the prin-
23 cipal's own recognizance, unless the court finds on the record [or] and
24 in writing that:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15095-02-0
A. 11122 2
1 (a) release on the principal's own recognizance will not reasonably
2 assure the principal's return to court. In such instances, the court
3 shall release the principal under non-monetary conditions, selecting the
4 least restrictive alternative and conditions that will reasonably assure
5 the principal's return to court. The court shall explain its choice of
6 alternative and conditions on the record [or] and in writing; or
7 (b) the principal poses a danger to a person or the community. In such
8 instances, the court may in its discretion release the principal pending
9 trial on the principal's own recognizance or under non-monetary condi-
10 tions or commit the principal to the custody of the sheriff, selecting
11 the least restrictive alternative and conditions that will reasonably
12 assure the safety of such person or the community. A securing order
13 committing the principal to the custody of the sheriff shall be limited
14 to a duration of ninety days where the principal stands charged with a
15 misdemeanor or one hundred eighty days where the principal stands
16 charged with a felony. Where a principal is committed to the custody of
17 the sheriff, the prosecutor may make a motion to extend the duration of
18 such custody beyond the limits imposed pursuant to this paragraph, where
19 such extension is appropriate in the interests of justice. The court
20 shall explain its choice of alternative and conditions on the record and
21 in writing.
22 § 2. Paragraph (a) of subdivision 1 of section 530.20 of the criminal
23 procedure law, as added by section 16 of part JJJ of chapter 59 of the
24 laws of 2019, is amended to read as follows:
25 (a) In cases other than as described in paragraph (b) of this subdivi-
26 sion the court shall release the principal pending trial on the princi-
27 pal's own recognizance, unless the court finds on the record [or] and in
28 writing that:
29 (i) release on the principal's own recognizance will not reasonably
30 assure the principal's return to court. In such instances, the court
31 shall release the principal under non-monetary conditions, selecting the
32 least restrictive alternative and conditions that will reasonably assure
33 the principal's return to court. The court shall explain its choice of
34 alternative and conditions on the record [or] and in writing; or
35 (ii) the principal poses a danger to a person or the community. In
36 such instances, the court may in its discretion release the principal
37 pending trial on the principal's own recognizance or under non-monetary
38 conditions or commit the principal to the custody of the sheriff,
39 selecting the least restrictive alternative and conditions that will
40 reasonably assure the safety of such person or the community. A securing
41 order committing the principal to the custody of the sheriff shall be
42 limited to a duration of ninety days where the principal stands charged
43 with a misdemeanor or one hundred eighty days where the principal stands
44 charged with a felony. Where a principal is committed to the custody of
45 the sheriff, the prosecutor may make a motion to extend the duration of
46 such custody beyond the limits imposed pursuant to this subparagraph,
47 where such extension is appropriate in the interests of justice. The
48 court shall explain its choice of alternative and conditions on the
49 record and in writing.
50 § 3. Subdivision 3 of section 530.40 of the criminal procedure law, as
51 amended by section 18 of part JJJ of chapter 59 of the laws of 2019, is
52 amended to read as follows:
53 3. In cases other than as described in subdivision four of this
54 section the court shall release the principal pending trial on the prin-
55 cipal's own recognizance, unless the court finds on the record [or] and
56 in writing that:
A. 11122 3
1 (a) release on the principal's own recognizance will not reasonably
2 assure the principal's return to court. In such instances, the court
3 shall release the principal under non-monetary conditions, selecting the
4 least restrictive alternative and conditions that will reasonably assure
5 the principal's return to court. The court shall explain its choice of
6 alternative and conditions on the record [or] and in writing; or
7 (b) the principal poses a danger to a person or the community. In such
8 instances, the court may in its discretion release the principal pending
9 trial on the principal's own recognizance or under non-monetary condi-
10 tions or commit the principal to the custody of the sheriff, selecting
11 the least restrictive alternative and conditions that will reasonably
12 assure the safety of such person or the community. A securing order
13 committing the principal to the custody of the sheriff shall be limited
14 to a duration of ninety days where the principal stands charged with a
15 misdemeanor or one hundred eighty days where the principal stands
16 charged with a felony. Where a principal is committed to the custody of
17 the sheriff, the prosecutor may make a motion to extend the duration of
18 such custody beyond the limits imposed pursuant to this paragraph, where
19 such extension is appropriate in the interests of justice. The court
20 shall explain its choice of alternative and conditions on the record and
21 in writing.
22 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
23 amended by section 5 of part JJJ of chapter 59 of the laws of 2019, is
24 amended to read as follows:
25 1. With respect to any principal, the court in all cases, unless
26 otherwise provided by law, must impose the least restrictive kind and
27 degree of control or restriction that is necessary to secure the princi-
28 pal's return to court when required. In determining that matter, the
29 court must, on the basis of available information, consider and take
30 into account information about the principal that is relevant to the
31 principal's return to court, including:
32 (a) The principal's activities and history, including but not limited
33 to, whether such principal has a history of violence;
34 (b) If the principal is a defendant, the charges facing the principal,
35 including but not limited to, the use or threatened use of physical
36 force by such principal;
37 (c) The principal's criminal conviction record if any;
38 (d) The principal's record of previous adjudication as a juvenile
39 delinquent, as retained pursuant to section 354.2 of the family court
40 act, or, of pending cases where fingerprints are retained pursuant to
41 section 306.1 of such act, or a youthful offender, if any;
42 (e) The principal's previous record with respect to flight to avoid
43 criminal prosecution;
44 (f) If monetary bail is authorized, according to the restrictions set
45 forth in this title, the principal's individual financial circumstances,
46 and, in cases where bail is authorized, the principal's ability to post
47 bail without posing undue hardship, as well as his or her ability to
48 obtain a secured, unsecured, or partially secured bond;
49 (g) Where the principal is charged with a crime or crimes against a
50 member or members of the same family or household as that term is
51 defined in subdivision one of section 530.11 of this title, the follow-
52 ing factors:
53 (i) any violation by the principal of an order of protection issued by
54 any court for the protection of a member or members of the same family
55 or household as that term is defined in subdivision one of section
A. 11122 4
1 530.11 of this title, whether or not such order of protection is
2 currently in effect; and
3 (ii) the principal's history of use or possession of a firearm; [and]
4 (h) If the principal is a defendant, in the case of an application for
5 a securing order pending appeal, the merit or lack of merit of the
6 appeal[.]; and
7 (i) The nature and seriousness of the danger to any other person or
8 the community that would be posed by the principal's release, if appli-
9 cable.
10 § 5. Paragraphs (a) and (b) of subdivision 1 of section 245.10 of the
11 criminal procedure law, as added by section 2 of part LLL of chapter 59
12 of the laws of 2019, are amended to read as follows:
13 (a) The prosecution shall perform its initial discovery obligations
14 under subdivision one of section 245.20 of this article as soon as prac-
15 ticable but not later than [fifteen] forty-five calendar days after the
16 defendant's arraignment on an indictment, superior court information,
17 prosecutor's information, information, simplified information, misdemea-
18 nor complaint or felony complaint. Portions of materials claimed to be
19 non-discoverable may be withheld pending a determination and ruling of
20 the court under section 245.70 of this article; but the defendant shall
21 be notified in writing that information has not been disclosed under a
22 particular subdivision of such section, and the discoverable portions of
23 such materials shall be disclosed to the extent practicable. When the
24 discoverable materials are exceptionally voluminous or, despite dili-
25 gent, good faith efforts, are otherwise not in the actual possession of
26 the prosecution, the time period in this paragraph may be stayed by up
27 to an additional thirty calendar days without need for a motion pursuant
28 to subdivision two of section 245.70 of this article.
29 (b) The prosecution shall perform its supplemental discovery obli-
30 gations under subdivision three of section 245.20 of this article as
31 soon as practicable but not later than [fifteen] forty-five calendar
32 days prior to the first scheduled trial date.
33 § 6. Section 510.50 of the criminal procedure law, as amended by
34 section 9 of part JJJ of chapter 59 of the laws of 2019, is amended to
35 read as follows:
36 § 510.50 Enforcement of securing order.
37 1. When the attendance of a principal confined in the custody of the
38 sheriff is required at the criminal action or proceeding at a particular
39 time and place, the court may compel such attendance by directing the
40 sheriff to produce the principal at such time and place. If the princi-
41 pal is at liberty on the principal's own recognizance or non-monetary
42 conditions or on bail, the principal's attendance may be achieved or
43 compelled by various methods, including notification and the issuance of
44 a bench warrant, prescribed by law in provisions governing such matters
45 with respect to the particular kind of action or proceeding involved.
46 2. Except when the principal is charged with a new crime while at
47 liberty or when a principal fails to appear for a scheduled court
48 appearance involving a charge of a hate crime as defined in section
49 485.05 of the penal law, absent relevant, credible evidence demonstrat-
50 ing that a principal's failure to appear for a scheduled court appear-
51 ance was willful, the court, prior to issuing a bench warrant for a
52 failure to appear for a scheduled court appearance, shall provide at
53 least forty-eight hours notice to the principal or the principal's coun-
54 sel that the principal is required to appear, in order to give the prin-
55 cipal an opportunity to appear voluntarily.
A. 11122 5
1 § 7. Paragraph (a) of subdivision 1 and subdivision 2 of section
2 150.20 of the criminal procedure law, paragraph (a) of subdivision 1 as
3 amended by section 1-a of part JJJ of chapter 59 of the laws of 2019,
4 subdivision 2 as amended by chapter 550 of the laws of 1987, are amended
5 and a new paragraph (c) is added to subdivision 1 to read as follows:
6 (a) Whenever a police officer is authorized pursuant to section 140.10
7 of this title to arrest a person without a warrant for an offense other
8 than a class A, B, C or D felony or a violation of section 130.25,
9 130.40, 205.10, 205.17, 205.19 [or], 215.56 or 265.55 of the penal law,
10 he shall, except as set out in [paragraph] paragraphs (b) and (c) of
11 this subdivision, subject to the provisions of subdivisions three and
12 four of section 150.40 of this title, instead issue to and serve upon
13 such person an appearance ticket.
14 (c) An officer shall not issue an appearance ticket if:
15 (i) the person has a pending case for the same offense within the
16 previous six months;
17 (ii) the person has been convicted of the same offense within the
18 previous two years.
19 2. (a) Whenever a police officer has arrested a person without a
20 warrant for an offense other than a class A, B, C or D felony or a
21 violation of section 130.25, 130.40, 205.10, 205.17, 205.19 [or], 215.56
22 or 265.55 of the penal law pursuant to section 140.10, or (b) whenever a
23 peace officer, who is not authorized by law to issue an appearance tick-
24 et, has arrested a person for an offense other than a class A, B, C or D
25 felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
26 [or], 215.56 or 265.55 of the penal law pursuant to section 140.25, and
27 has requested a police officer to issue and serve upon such arrested
28 person an appearance ticket pursuant to subdivision four of section
29 140.27, or (c) whenever a person has been arrested for an offense other
30 than a class A, B, C or D felony or a violation of section 130.25,
31 130.40, 205.10, 205.17, 205.19 [or], 215.56 or 265.55 of the penal law
32 and has been delivered to the custody of an appropriate police officer
33 pursuant to section 140.40, such police officer may, instead of bringing
34 such person before a local criminal court and promptly filing or causing
35 the arresting peace officer or arresting person to file a local criminal
36 court accusatory instrument therewith, issue to and serve upon such
37 person an appearance ticket. The issuance and service of an appearance
38 ticket under such circumstances may be conditioned upon a deposit of
39 pre-arraignment bail, as provided in section 150.30.
40 § 8. This act shall take effect immediately.