S05973 Summary:

BILL NOS05973
 
SAME ASNo Same As
 
SPONSORASHBY
 
COSPNSRCANZONERI-FITZPATRICK, GALLIVAN, MATTERA, MURRAY, OBERACKER, RHOADS, ROLISON, WALCZYK, WEBER, WEIK
 
MLTSPNSR
 
Rpld Arts 520 & 540, §420.10 sub 1 ¶(e), §§530.80, 570.38, 570.42 & 246-a, amd CP L, generally; rpld §246-a, Lien L; ren Art 50 §§1000 - 1003 to be Art 51 §§1100 - 1103, add Art 50 §§1005 & 1006, Exec L
 
Eliminates bail for all offenses; provides for imposition of restrictions and conditions and remand for certain offenses; directs consideration of a defendant's character, reputation, habits, mental condition, activities and history, and whether they pose a danger to themselves, another person or the community, when determining a securing order; creates the commission on public safety reform to issue a determination on which offenses should be eligible for pretrial detention.
Go to top    

S05973 Actions:

BILL NOS05973
 
03/24/2023REFERRED TO CODES
01/03/2024REFERRED TO CODES
Go to top

S05973 Committee Votes:

Go to top

S05973 Floor Votes:

There are no votes for this bill in this legislative session.
Go to top

S05973 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5973
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                     March 24, 2023
                                       ___________
 
        Introduced  by  Sen.  ASHBY  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation  to  eliminating
          bail;  to  amend  the  executive  law,  in  relation to establishing a
          commission on public safety reform; and to repeal  certain  provisions
          of the criminal procedure law and the lien law relating thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivisions 2 and 3 of  section  140.20  of  the  criminal
     2  procedure  law,  as  amended  by  chapter  550  of the laws of 1987, are
     3  amended to read as follows:
     4    2. If the arrest is for an offense other than a class A,  B,  C  or  D
     5  felony  or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
     6  or 215.56 of the penal law, the arrested  person  need  not  be  brought
     7  before  a  local criminal court as provided in subdivision one, and [the
     8  procedure may instead be as follows:
     9    (a) A] instead a police officer may  issue  and  serve  an  appearance
    10  ticket  upon  the  arrested  person  and  release  him  from custody, as
    11  prescribed in subdivision two of section 150.20[; or
    12    (b) The desk officer in charge at a police  station,  county  jail  or
    13  police headquarters, or any of his superior officers, may, in such place
    14  fix  pre-arraignment  bail and, upon deposit thereof, issue and serve an
    15  appearance ticket upon the arrested person and release him from custody,
    16  as prescribed in section 150.30] of this title.
    17    3. If (a) the arrest is for an offense other than a class A, B, C or D
    18  felony or a violation of section 130.25, 130.40, 205.10, 205.17,  205.19
    19  or  215.56  of the penal law, and (b) owing to unavailability of a local
    20  criminal court the arresting police  officer  is  unable  to  bring  the
    21  arrested  person  before such a court with reasonable promptness, either
    22  an appearance ticket must be served unconditionally  upon  the  arrested
    23  person [or pre-arraignment bail must be fixed, as prescribed in subdivi-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10397-01-3

        S. 5973                             2

     1  sion two. If pre-arraignment bail is fixed but not posted, such arrested
     2  person  may  be temporarily held in custody but must be brought before a
     3  local criminal court without unnecessary delay].  Nothing  contained  in
     4  this subdivision requires a police officer to serve an appearance ticket
     5  upon  an arrested person or release him from custody at a time when such
     6  person appears to be under the influence of alcohol, narcotics or  other
     7  drug to the degree that he may endanger himself or other persons.
     8    § 2. Subdivision 3 of section 140.40 of the criminal procedure law, as
     9  amended  by  chapter  550  of  the  laws  of 1987, is amended to read as
    10  follows:
    11    3. If the arrest is for an offense other than a class A,  B,  C  or  D
    12  felony  or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
    13  or 215.56 of the penal law, the arrested  person  need  not  be  brought
    14  before  a local criminal court, as provided in subdivision one, and [the
    15  procedure may instead be as follows:
    16    (a) An] instead an appropriate police officer may issue and  serve  an
    17  appearance ticket upon the arrested person and release him from custody,
    18  as prescribed in subdivision two of section 150.20[; or
    19    (b)  The  desk  officer  in charge at the appropriate police officer's
    20  station, county jail or police headquarters,  or  any  of  his  superior
    21  officers, may, in such place, fix pre-arraignment bail and, upon deposit
    22  thereof,  issue  and serve an appearance ticket upon the arrested person
    23  and release him from custody, as prescribed in section 150.30]  of  this
    24  title.
    25    §  3.  The  section heading and subdivision 7 of section 170.10 of the
    26  criminal procedure law are amended to read as follows:
    27    Arraignment  upon   information,   simplified   traffic   information,
    28  prosecutor's information or misdemeanor complaint; defendant's presence,
    29  defendant's  rights,  court's  instructions  and  [bail]  securing order
    30  matters.
    31    7. Upon the arraignment, the court, unless it intends to make a  final
    32  disposition  of  the action immediately thereafter, must, as provided in
    33  subdivision one of section 530.20 of  this  chapter,  issue  a  securing
    34  order  either releasing the defendant on his or her own recognizance [or
    35  fixing bail],  under  non-monetary  conditions,  or,  where  authorized,
    36  committing  the  defendant  to the custody of the sheriff for his or her
    37  future appearance in the action; except that where a  defendant  appears
    38  by counsel pursuant to paragraph (b) of subdivision one of this section,
    39  the court must release the defendant on his or her own recognizance.
    40    §  4. Paragraph (a) and the opening paragraph and subparagraph (xi) of
    41  paragraph (b) of subdivision 1 of section 150.20 of the criminal  proce-
    42  dure  law,  paragraph  (a) as amended and the opening paragraph of para-
    43  graph (b) as added by section 1-a of part JJJ of chapter 59 of the  laws
    44  of 2019, subparagraph (xi) of paragraph (b) of subdivision 1 as added by
    45  section 1 of subpart B of part UU of chapter 56 of the laws of 2022, are
    46  amended to read as follows:
    47    (a) Whenever a police officer is authorized pursuant to section 140.10
    48  of  this title to arrest a person without a warrant for an offense other
    49  than a class A, B, C or D felony  or  a  violation  of  section  130.25,
    50  130.40,  205.10,  205.17,  205.19 or 215.56 of the penal law, he [shall,
    51  except as set out in paragraph (b) of  this  subdivision]  or  she  may,
    52  subject  to  the  provisions  of  subdivisions three and four of section
    53  150.40 of this title, instead issue to and serve  upon  such  person  an
    54  appearance ticket.
    55    An  officer is not [required] authorized to issue an appearance ticket
    56  if:

        S. 5973                             3
 
     1    (xi) the offense is a qualifying offense pursuant to  paragraph  [(t)]
     2  (k)  of  subdivision four of section 510.10 of this chapter, or pursuant
     3  to paragraph [(t)] (k) of subdivision four of  section  530.40  of  this
     4  chapter.
     5    §  5. Subdivision 2 of section 170.25 of the criminal procedure law is
     6  amended to read as follows:
     7    2. Such order stays the proceedings in the local criminal court  pend-
     8  ing  submission  of  the  charge to the grand jury.  Upon the subsequent
     9  filing of an indictment in the superior court, the  proceedings  in  the
    10  local  criminal  court  terminate  and the defendant must be required to
    11  appear for arraignment upon the indictment in the manner  prescribed  in
    12  subdivisions one and two of section 210.10 of this part. Upon the subse-
    13  quent filing of a grand jury dismissal of the charge, the proceedings in
    14  the  local  criminal court terminate and the superior court must, if the
    15  defendant is not at liberty on his or her  own  recognizance,  discharge
    16  him or her from custody [or exonerate his bail, as the case may be].
    17    §  6. Subdivision 3 of section 170.50 of the criminal procedure law is
    18  amended to read as follows:
    19    3. Upon dismissing a  prosecutor's  information  or  a  count  thereof
    20  pursuant to this section, the court may, upon application of the people,
    21  in its discretion authorize the people to resubmit the charge or charges
    22  to the same or another grand jury. In the absence of such authorization,
    23  such charge or charges may not be resubmitted to a grand jury. The rules
    24  prescribed in subdivisions eight and nine of section 210.45 of this part
    25  concerning  the discharge of a defendant from custody [or exoneration of
    26  bail] in the absence of an authorization to resubmit an indictment to  a
    27  grand  jury,  and  concerning  the  issuance of a securing order and the
    28  effective period thereof where such an authorization  is  issued,  apply
    29  equally  where  a prosecutor's information is dismissed pursuant to this
    30  section.
    31    § 7. Subdivision 2 of section 210.10 of the criminal procedure law, as
    32  amended by chapter 681 of the laws  of  1990,  is  amended  to  read  as
    33  follows:
    34    2.  If a felony complaint against the defendant was pending in a local
    35  criminal court or if the defendant was previously held by a local crimi-
    36  nal court for the action of the grand jury, and if the defendant  is  at
    37  liberty  on  his or her own recognizance or [on bail] under non-monetary
    38  conditions pursuant to a previous court order issued in the same  crimi-
    39  nal  action,  the  superior court must, upon at least two days notice to
    40  the defendant [and his or her surety,  to  any  person  other  than  the
    41  defendant  who  posted cash bail] and to any attorney who would be enti-
    42  tled to notice under circumstances prescribed in subdivision one of this
    43  section, direct the defendant to appear before the  superior  court  for
    44  arraignment  on  a specified date.   If the defendant fails to appear on
    45  such date, the court may issue a bench warrant [and,  in  addition,  may
    46  forfeit the bail, if any]. Upon taking the defendant into custody pursu-
    47  ant  to  such  bench  warrant, the executing police officer must without
    48  unnecessary delay bring the defendant before  such  superior  court  for
    49  arraignment.  If  such  superior  court  is not available, the executing
    50  police officer may bring the defendant to the local correctional facili-
    51  ty of the county in which such superior court sits, to be detained there
    52  until not later than the commencement of the next session of such  court
    53  occurring on the next business day.
    54    §  8.  The  section heading and subdivision 6 of section 210.15 of the
    55  criminal procedure law are amended to read as follows:

        S. 5973                             4

     1    Arraignment upon indictment; defendant's rights, court's  instructions
     2  and [bail] securing order matters.
     3    6.  Upon the arraignment, the court, unless it intends to make a final
     4  disposition of the action immediately thereafter, must, as  provided  in
     5  section  530.40  of  this chapter, issue a securing order, releasing the
     6  defendant on his or her own recognizance or [fixing bail] under non-mon-
     7  etary conditions or committing him or her to the custody of the  sheriff
     8  for his or her future appearance in such action.
     9    §  9. Subdivisions 8 and 9 of section 210.45 of the criminal procedure
    10  law are amended to read as follows:
    11    8.  When the court dismisses the entire indictment without authorizing
    12  resubmission of the charge or charges to a grand  jury,  it  must  order
    13  that  the  defendant  be  discharged from custody if he or she is in the
    14  custody of the sheriff[, or if he is at liberty on bail it must  exoner-
    15  ate the bail].
    16    9.    When  the  court  dismisses the entire indictment but authorizes
    17  resubmission of the charge or charges to a  grand  jury,  such  authori-
    18  zation  is,  for  purposes  of this subdivision, deemed to constitute an
    19  order holding the defendant for the action of a grand jury with  respect
    20  to  such charge or charges. Such order must be accompanied by a securing
    21  order either releasing the defendant on his or her own  recognizance  or
    22  [fixing  bail] under non-monetary conditions or committing him or her to
    23  the custody of the sheriff pending resubmission of the case to the grand
    24  jury and the grand jury's disposition  thereof.    Such  securing  order
    25  remains in effect until the first to occur of any of the following:
    26    (a)  A statement to the court by the people that they do not intend to
    27  resubmit the case to a grand jury;
    28    (b)    Arraignment of the defendant upon an indictment or prosecutor's
    29  information filed as a result of resubmission of the  case  to  a  grand
    30  jury.    Upon  such  arraignment,  the arraigning court must issue a new
    31  securing order;
    32    (c) The filing with the court of a grand jury dismissal  of  the  case
    33  following resubmission thereof;
    34    (d)  The  expiration  of  a period of forty-five days from the date of
    35  issuance of the order; provided that such period  may,  for  good  cause
    36  shown,  be extended by the court to a designated subsequent date if such
    37  be necessary to accord the people reasonable opportunity to resubmit the
    38  case to a grand jury.
    39    Upon the termination of the effectiveness of the securing order pursu-
    40  ant to paragraph (a), (c) or (d) of this  subdivision,  the  court  must
    41  immediately order that the defendant be discharged from custody if he or
    42  she is in the custody of the sheriff[, or if he is at liberty on bail it
    43  must  exonerate  the  bail].  Although  expiration of the period of time
    44  specified in paragraph (d) without any resubmission or grand jury dispo-
    45  sition of the case terminates the effectiveness of the  securing  order,
    46  it  does not terminate the effectiveness of the order authorizing resub-
    47  mission.
    48    § 10. Subdivision 6 and paragraph (c)  of  subdivision  9  of  section
    49  216.05  of  the criminal procedure law, as amended by chapter 435 of the
    50  laws of 2021, are amended to read as follows:
    51    6. Upon an eligible defendant's agreement to abide by  the  conditions
    52  set  by  the court, the court shall issue a securing order providing for
    53  [bail or] release on the defendant's own recognizance  and  conditioning
    54  any  release  upon  the agreed upon conditions. The period of alcohol or
    55  substance use treatment shall begin as specified by  the  court  and  as
    56  soon  as  practicable after the defendant's release, taking into account

        S. 5973                             5
 
     1  the availability of treatment, so as to  facilitate  early  intervention
     2  with  respect  to  the  defendant's  substance  use or condition and the
     3  effectiveness of the treatment program. In the event  that  a  treatment
     4  program  is  not immediately available or becomes unavailable during the
     5  course of  the  defendant's  participation  in  the  judicial  diversion
     6  program,  the  court  may release the defendant pursuant to the securing
     7  order.
     8    (c) If the court determines that the defendant has violated  a  condi-
     9  tion  of  his  or  her release under the judicial diversion program, the
    10  court may modify the conditions thereof, reconsider the order of  recog-
    11  nizance  [or bail] pursuant to subdivision two of section 510.30 of this
    12  chapter, or terminate the  defendant's  participation  in  the  judicial
    13  diversion  program;  and  when  applicable  proceed with the defendant's
    14  sentencing  in  accordance  with  the  agreement.  Notwithstanding   any
    15  provision  of  law  to  the  contrary, the court may impose any sentence
    16  authorized for the crime of  conviction  in  accordance  with  the  plea
    17  agreement,  or  any lesser sentence authorized to be imposed on a felony
    18  drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
    19  section  70.70  of  the penal law taking into account the length of time
    20  the defendant spent in residential treatment and how  best  to  continue
    21  treatment  while  the defendant is serving that sentence. In determining
    22  what action to take for a violation of a release  condition,  the  court
    23  shall  consider  all  relevant circumstances, including the views of the
    24  prosecutor, the defense and  the  alcohol  or  substance  use  treatment
    25  provider,  and  the  extent to which persons who ultimately successfully
    26  complete a drug treatment regimen sometimes relapse  by  not  abstaining
    27  from  alcohol  or  substance  use or by failing to comply fully with all
    28  requirements imposed by  a  treatment  program.  The  court  shall  also
    29  consider  using a system of graduated and appropriate responses or sanc-
    30  tions designed to address such inappropriate behaviors,  protect  public
    31  safety  and  facilitate,  where  possible,  successful completion of the
    32  alcohol or substance use treatment program.
    33    § 11. Subdivision 4 of section 290.10 of the criminal procedure law is
    34  amended to read as follows:
    35    4.  Upon issuing a trial order of dismissal which dismisses the entire
    36  indictment, the court must  immediately  discharge  the  defendant  from
    37  custody  if he is in custody of the sheriff[, or, if he is at liberty on
    38  bail, it must exonerate the bail].
    39    § 12. Subdivision 1 of section 330.10 of the criminal procedure law is
    40  amended to read as follows:
    41    1. Upon a verdict of complete acquittal, the  court  must  immediately
    42  discharge  the defendant if he is in the custody of the sheriff[, or, if
    43  he is at liberty on bail, it must exonerate the bail].
    44    § 13. Section 410.60 of the criminal  procedure  law,  as  amended  by
    45  section  23 of part JJJ of chapter 59 of the laws of 2019, is amended to
    46  read as follows:
    47  § 410.60 Appearance before court.
    48    A person who has been taken into custody pursuant to section 410.40 or
    49  section 410.50 of this  article  for  violation  of  a  condition  of  a
    50  sentence of probation or a sentence of conditional discharge must forth-
    51  with  be  brought  before  the  court that imposed the sentence. Where a
    52  violation of probation petition and report has been filed and the person
    53  has not been taken into custody  nor  has  a  warrant  been  issued,  an
    54  initial  court  appearance  shall  occur within ten business days of the
    55  court's issuance of a notice to appear.  If  the  court  has  reasonable
    56  cause  to  believe  that  such  person  has  violated a condition of the

        S. 5973                             6
 
     1  sentence, it may commit such person to the custody of the sheriff,  [fix
     2  bail,] release such person under non-monetary conditions or release such
     3  person  on  such  person's  own  recognizance for future appearance at a
     4  hearing to be held in accordance with section 410.70 of this article. If
     5  the court does not have reasonable cause to believe that such person has
     6  violated a condition of the sentence, it must direct that such person be
     7  released.
     8    §  14.  Subdivision 1 of section 410.70 of the criminal procedure law,
     9  as amended by chapter 17 of the laws of 2014,  is  amended  to  read  as
    10  follows:
    11    1.  In  general. The court may not revoke a sentence of probation or a
    12  sentence of conditional discharge, or  extend  a  period  of  probation,
    13  unless  (a) the court has found that the defendant has violated a condi-
    14  tion of the sentence and (b) the defendant has had an opportunity to  be
    15  heard  pursuant  to this section. The defendant is entitled to a hearing
    16  in accordance with this section promptly after the  court  has  filed  a
    17  declaration  of  delinquency  or  has  committed him [or has fixed bail]
    18  pursuant to this article.
    19    § 15. Paragraph (e) of subdivision 1 of section 420.10 of the criminal
    20  procedure law is REPEALED.
    21    § 16. Subdivisions 1 and 6 of section 460.50 of the criminal procedure
    22  law, subdivision 1 as amended by chapter 884 of the laws of 1971, subdi-
    23  vision 6 as added by chapter 168 of the laws of  1981,  are  amended  to
    24  read as follows:
    25    1.    Upon  application  of  a defendant who has taken an appeal to an
    26  intermediate appellate court from a judgment or from  a  sentence  of  a
    27  criminal  court,  a  judge designated in subdivision two of this section
    28  may issue an order both (a) staying or suspending the execution  of  the
    29  judgment  pending  the  determination  of  the  appeal, and (b) [either]
    30  releasing the defendant on his or her own recognizance or [fixing  bail]
    31  under non-monetary conditions pursuant to the provisions of article five
    32  hundred  thirty  of  this  chapter.  That  phase of the order staying or
    33  suspending execution of the judgment does not  become  effective  unless
    34  and  until the defendant is released[, either on his own recognizance or
    35  upon the posting of bail].
    36    6. Upon application of a defendant who has been granted a  certificate
    37  granting leave to appeal pursuant to section 460.15 of this chapter, and
    38  in  accordance with the procedures set forth in subdivisions three, four
    39  and five of this section, the intermediate appellate court may issue  an
    40  order both (a) staying or suspending the execution of the judgment pend-
    41  ing  the  determination  of  the  appeal, and (b) [either] releasing the
    42  defendant on his or her own recognizance or [fixing bail] under non-mon-
    43  etary conditions pursuant to the  provisions  of  article  five  hundred
    44  thirty  of  this  chapter. That phase of the order staying or suspending
    45  execution of the judgment does not become effective unless and until the
    46  defendant is released[, either on his own recognizance or upon the post-
    47  ing of bail].
    48    § 17. Subdivision 1 of section 460.60 of the criminal  procedure  law,
    49  as  amended  by  chapter  168 of the laws of 1981, is amended to read as
    50  follows:
    51    1. (a) A judge who, pursuant to section 460.20 of this [chapter] arti-
    52  cle, has received an application for a certificate granting a  defendant
    53  leave to appeal to the court of appeals from an order of an intermediate
    54  appellate  court  affirming or modifying a judgment including a sentence
    55  of imprisonment, a sentence of imprisonment, or an order appealed pursu-
    56  ant to section 450.15 of this [chapter] title, of a criminal court, may,

        S. 5973                             7
 
     1  upon application of such defendant-appellant issue  an  order  both  (i)
     2  staying or suspending the execution of the judgment pending the determi-
     3  nation  of the application for leave to appeal, and, if that application
     4  is  granted, staying or suspending the execution of the judgment pending
     5  the determination of the appeal,  and (ii) either releasing the  defend-
     6  ant  on  his  or  her own recognizance or [continuing bail as previously
     7  determined or fixing bail] under non-monetary conditions pursuant to the
     8  provisions of article five hundred thirty of this chapter. Such an order
     9  is effective   immediately and  that  phase  of  the  order  staying  or
    10  suspending  execution  of  the judgment does not become effective unless
    11  and until the defendant is released[, either on his own recognizance  or
    12  upon the posting of bail].
    13    (b)  If  the  application  for  leave to appeal is denied, the stay or
    14  suspension pending the application  automatically  terminates  upon  the
    15  signing  of  the  certificate denying leave.  Upon such termination, the
    16  certificate denying leave must be sent to the criminal  court  in  which
    17  the  original  judgment  was entered, and the latter must proceed in the
    18  manner provided in subdivision five of section 460.50 of this  [chapter]
    19  article.
    20    §  18. Section 470.45 of the criminal procedure law is amended to read
    21  as follows:
    22  § 470.45 Remission of case by appellate court  to  criminal  court  upon
    23             reversal  or  modification  of  judgment;  action by criminal
    24             court.
    25    Upon reversing  or  modifying  a  judgment  and  directing  corrective
    26  action,  an appellate court must remit the case to the criminal court in
    27  which the judgment was entered.  Such criminal court  must  execute  the
    28  direction  of the appellate court and must, depending upon the nature of
    29  such direction, either discharge the defendant from custody[,  exonerate
    30  his bail] or issue a securing order.
    31    § 19. The article heading of article 500 of the criminal procedure law
    32  is amended to read as follows:
    33                          RECOGNIZANCE[, BAIL] AND
    34                      COMMITMENT--DEFINITIONS OF TERMS
    35    § 20. Section 500.10 of the criminal procedure law, subdivisions 1, 2,
    36  4,  5,  6, 7 and  9 as amended by section 1-e and subdivisions 21 and 22
    37  as added by section 1-f of part JJJ of chapter 59 of the laws  of  2019,
    38  subdivision 3-a as amended  and subdivision 3-b as added by section 1 of
    39  part  UU  of chapter 56 of the laws of 2020, subdivision 3-c as added by
    40  section 1 of subpart F of part UU of chapter 56 of  the  laws  of  2022,
    41  subdivision 16 as further amended by section 104 of part A of chapter 62
    42  of the laws of 2011, paragraph (b) of subdivision 17 as amended by chap-
    43  ter 305 of the laws of 2011, is amended to read as follows:
    44  § 500.10 Recognizance[, bail] and commitment; definitions of terms.
    45    As  used  in  this title, and in this chapter generally, the following
    46  terms have the following meanings:
    47    1. "Principal" means a defendant in a criminal action  or  proceeding,
    48  or  a person adjudged a material witness therein, or any other person so
    49  involved therein that the principal may by law be  compelled  to  appear
    50  before  a  court  for  the purpose of having such court exercise control
    51  over the principal's person to secure the principal's future  attendance
    52  at  the  action  or  proceeding when required, and who in fact either is
    53  before the court for such  purpose  or  has  been  before  it  and  been
    54  subjected to such control.
    55    2.  "Release on own recognizance." A court releases a principal on the
    56  principal's own recognizance when,  having  acquired  control  over  the

        S. 5973                             8
 
     1  principal's person, it permits the principal to be at liberty during the
     2  pendency  of  the  criminal action or proceeding involved upon condition
     3  that the principal will appear thereat whenever the principal's  attend-
     4  ance may be required and will at all times render the principal amenable
     5  to the orders and processes of the court.
     6    3.  ["Fix bail." A court fixes bail when, having acquired control over
     7  the person of a principal, it designates a sum of money  and  stipulates
     8  that,  if  bail  in such amount is posted on behalf of the principal and
     9  approved, it will permit him to be at liberty during the pendency of the
    10  criminal action or proceeding involved.
    11    3-a.] "Release under non-monetary  conditions."  A  court  releases  a
    12  principal  under  non-monetary  conditions when, having acquired control
    13  over a person, it authorizes the person to  be  at  liberty  during  the
    14  pendency  of the criminal action or proceeding involved under conditions
    15  ordered by the court, which shall be the  least  restrictive  conditions
    16  that  will reasonably assure the principal's return to court and reason-
    17  ably assure the principal's compliance with court conditions. A  princi-
    18  pal  shall not be required to pay for any part of the cost of release on
    19  non-monetary conditions. Such conditions may include, among other condi-
    20  tions reasonable under the circumstances:
    21    (a) that the principal be in contact with a pretrial  services  agency
    22  serving principals in that county;
    23    (b)  that the principal abide by reasonable, specified restrictions on
    24  travel that are reasonably related to an actual risk of flight from  the
    25  jurisdiction, or that the principal surrender his or her passport;
    26    (c)  that the principal refrain from possessing a firearm, destructive
    27  device or other dangerous weapon;
    28    (d) that, when it is shown pursuant to  subdivision  four  of  section
    29  510.45  of  this title that no other realistic non-monetary condition or
    30  set of non-monetary conditions will suffice  to  reasonably  assure  the
    31  person's  return  to  court, the person be placed in reasonable pretrial
    32  supervision with a pretrial services agency serving principals  in  that
    33  county;
    34    (e)  that  the principal refrain from associating with certain persons
    35  who are connected with the instant charge, including, when  appropriate,
    36  specified victims, witnesses, or co-defendants;
    37    (f)  that  the principal be referred to a pretrial services agency for
    38  placement in mandatory programming, including counseling, treatment, and
    39  intimate partner violence intervention programs. Where  applicable,  the
    40  court  may  direct  the  principal  be removed to a hospital pursuant to
    41  section 9.43 of the mental hygiene law;
    42    (g) that the principal make diligent efforts to  maintain  employment,
    43  housing, or enrollment in school or educational programming;
    44    (h)  that  the  principal  obey  an  order of protection issued by the
    45  court, including an order issued pursuant  to  section  530.11  of  this
    46  title;
    47    (i)  that  the principal obey conditions set by the court addressed to
    48  the safety of a victim of a family offense as defined in section  530.11
    49  of this title including conditions that may be requested by or on behalf
    50  of the victim; and
    51    (j)  that,  when  it is shown pursuant to paragraph (a) of subdivision
    52  four of section 510.40 of this title that no other  realistic  non-mone-
    53  tary condition or set of non-monetary conditions will suffice to reason-
    54  ably assure the principal's return to court, the principal's location be
    55  monitored  with  an approved electronic monitoring device, in accordance
    56  with such subdivision four of section 510.40 of this title.

        S. 5973                             9

     1    [3-b.] 4. Subdivision [three-a] three of this section presents a  non-
     2  exclusive  list of conditions that may be considered and imposed by law,
     3  singularly or in combination, when reasonable under the circumstances of
     4  the defendant, the case, and the situation of the defendant.  The  court
     5  need  not necessarily order one or more specific conditions first before
     6  ordering one or more or additional conditions.
     7    [3-c.] 5. (a) "Release for mental health assessment  and  evaluation."
     8  When  a  principal  appearing  before  the  court  appears, by clear and
     9  convincing evidence, to be mentally ill at the present moment such  that
    10  if  left  unattended  their  conduct  may  result  in harm to himself or
    11  herself or others, the court may: order as a condition of release  under
    12  supervision  that  the principal seek a voluntary psychiatric assessment
    13  under section 9.13 of the mental hygiene law  if  the  principal  has  a
    14  recently  documented history of mental illness or psychiatric hospitali-
    15  zation, and the defense consents to the assessment.
    16    (b) "Involuntary assessment pending release." When a principal appear-
    17  ing before the court appears, by clear and convincing  evidence,  to  be
    18  mentally  ill  at  the present moment such that if left unattended their
    19  conduct may result in immediate serious harm to himself  or  herself  or
    20  others,  the court may order as a condition of release under supervision
    21  that the principal be taken by an entity, including but not limited  to,
    22  pretrial  services  agencies,  or another qualified provider, to a local
    23  hospital  for  immediate  psychiatric  assessment  involuntarily   under
    24  section  9.43  of  the mental hygiene law if the principal is conducting
    25  himself or herself before the court, in such a manner which in a  person
    26  who  is  not  mentally  ill  would be deemed disorderly conduct which is
    27  likely to result in immediate serious harm  to  himself  or  herself  or
    28  others.  The  court  is  also authorized to request peace officers, when
    29  acting pursuant to their special duties, or  police  officers,  who  are
    30  members  of  an  authorized police department or force or of a sheriff's
    31  department, to take into custody and transport such person to a hospital
    32  for determination by the director of community services when such person
    33  qualifies for admission pursuant to this section. The court may  author-
    34  ize an ambulance service, as defined by subdivision two of section three
    35  thousand  one  of the public health law, to transport such person to any
    36  hospital specified in subdivision (a) of  section  9.39  of  the  mental
    37  hygiene law or any comprehensive psychiatric emergency program specified
    38  in  subdivision  (a)  of section 9.40 of the mental hygiene law, that is
    39  willing to receive such person. Upon removal, there shall be a  determi-
    40  nation  made  by  the  director of such hospital or program whether such
    41  person should be retained therein pursuant to section 9.39 of the mental
    42  hygiene law. If the principal is hospitalized, at the  time  of  release
    43  the  hospital  shall complete a discharge plan with linkages to communi-
    44  ty-based mental health treatment, including services that  are  provided
    45  after  the individual has stabilized, if applicable and other community-
    46  based services as may be deemed necessary  and  appropriate  and  notify
    47  pretrial  services  agencies  and  the  defense  counsel of the person's
    48  discharge. Pretrial  services  agencies  are  responsible  for  ensuring
    49  continuity of care for the principal in the community.
    50    (c) "Pretrial services." Pretrial services agencies shall be required,
    51  upon  the  request  of the court to provide a summary of the assessment,
    52  limited to necessary and relevant information relating  to  the  princi-
    53  pal's  completion of an assessment and evaluation, placement, treatment,
    54  and discharge from the hospital  solely  for  the  purpose  of  ensuring
    55  compliance  with  the  conditions  of release and in accordance with any

        S. 5973                            10
 
     1  applicable state and federal confidentiality laws. Conditions of release
     2  may not be revoked solely based on noncompliance with treatment.
     3    (d)  "Confidential."  Any  clinical  record  produced as a part of the
     4  assessment, services or treatment plans required pursuant to this subdi-
     5  vision shall be considered confidential and shall not be considered part
     6  of the public record, and access to such records  shall  be  limited  in
     7  accordance with applicable federal and state privacy laws. Such informa-
     8  tion  shall  not be used as part of the criminal proceeding and shall be
     9  expunged upon the resolution of the case.
    10    (e) "Referral." Courts shall refer the principal,  where  appropriate,
    11  to  a  judicial  diversion  program as defined in section 216.00 of this
    12  chapter or to any other appropriate treatment court.
    13    [4.] 6. "Commit to the custody of the sheriff."   A  court  commits  a
    14  principal  to  the  custody of the sheriff when, having acquired control
    15  over the principal's person, it orders that the principal be confined in
    16  the custody of the sheriff during the pendency of the criminal action or
    17  proceeding involved.
    18    [5.] 7. "Securing order" means an order of a court committing a  prin-
    19  cipal  to the custody of the sheriff [or fixing bail, where authorized,]
    20  or releasing the  principal  on  the  principal's  own  recognizance  or
    21  releasing the principal under non-monetary conditions.
    22    [6.]  8.  "Order  of  recognizance  or [bail] non-monetary conditions"
    23  means a securing order releasing a  principal  on  the  principal's  own
    24  recognizance  or  under  non-monetary  conditions [or, where authorized,
    25  fixing bail].
    26    [7.] 9. "Application for recognizance or  [bail]  non-monetary  condi-
    27  tions"  means  an  application by a principal that the court, instead of
    28  committing the principal to or retaining the principal in the custody of
    29  the sheriff, either release the principal on the principal's own  recog-
    30  nizance,  or  release  under non-monetary conditions[, or, where author-
    31  ized, fix bail].
    32    [8. "Post bail" means to deposit bail in the amount and form fixed  by
    33  the  court,  with the court or with some other authorized public servant
    34  or agency.
    35    9. "Bail" means cash bail, a bail bond or money  paid  with  a  credit
    36  card.
    37    10.  "Cash  bail" means a sum of money, in the amount designated in an
    38  order fixing bail, posted by a principal or by  another  person  on  his
    39  behalf  with  a court or other authorized public servant or agency, upon
    40  the condition that such money will become forfeit to the people  of  the
    41  state  of  New York if the principal does not comply with the directions
    42  of a court requiring his attendance at the criminal action or proceeding
    43  involved or does not otherwise render himself amenable to the orders and
    44  processes of the court.
    45    11. "Obligor" means a person who executes a bail bond on behalf  of  a
    46  principal  and  thereby  assumes  the undertaking described therein. The
    47  principal himself may be an obligor.
    48    12. "Surety" means an obligor who is not a principal.
    49    13. "Bail bond" means a written undertaking, executed by one  or  more
    50  obligors,  that  the principal designated in such instrument will, while
    51  at liberty as a result of an order fixing bail and of the posting of the
    52  bail bond in satisfaction  thereof,  appear  in  a  designated  criminal
    53  action  or  proceeding  when  his  attendance  is required and otherwise
    54  render himself amenable to the orders and processes of  the  court,  and
    55  that  in  the  event that he fails to do so the obligor or obligors will

        S. 5973                            11

     1  pay to the people of the state of New York a specified sum of money,  in
     2  the amount designated in the order fixing bail.
     3    14.  "Appearance  bond" means a bail bond in which the only obligor is
     4  the principal.
     5    15. "Surety bond" means a bail bond in which the obligor  or  obligors
     6  consist of one or more sureties or of one or more sureties and the prin-
     7  cipal.
     8    16. "Insurance company bail bond" means a surety bond, executed in the
     9  form  prescribed  by  the superintendent of financial services, in which
    10  the surety-obligor is a corporation licensed by  the  superintendent  of
    11  financial services to engage in the business of executing bail bonds.
    12    17. "Secured bail bond" means a bail bond secured by either:
    13    (a)  Personal  property  which is not exempt from execution and which,
    14  over and above all liabilities and encumbrances, has a value equal to or
    15  greater than the total amount of the undertaking; or
    16    (b) Real property having a value of at least twice the total amount of
    17  the undertaking. For purposes of this paragraph, value of real  property
    18  is determined by either:
    19    (i)  dividing  the  last  assessed  value of such property by the last
    20  given equalization rate or in a special assessing unit,  as  defined  in
    21  article  eighteen  of  the  real property tax law, the appropriate class
    22  ratio established pursuant to section twelve hundred two of such law  of
    23  the  assessing  municipality  wherein  the  property  is situated and by
    24  deducting from the resulting figure the total amount  of  any  liens  or
    25  other encumbrances upon such property; or
    26    (ii)  the  value of the property as indicated in a certified appraisal
    27  report submitted by a state certified general real estate appraiser duly
    28  licensed by the department of state as provided in section  one  hundred
    29  sixty-j  of the executive law, and by deducting from the appraised value
    30  the total amount of any liens or other encumbrances upon such  property.
    31  A lien report issued by a title insurance company licensed under article
    32  sixty-four  of  the  insurance law, that guarantees the correctness of a
    33  lien search conducted by it, shall be presumptive proof  of  liens  upon
    34  the property.
    35    18.  "Partially secured bail bond" means a bail bond secured only by a
    36  deposit of a sum of money not exceeding ten percent of the total  amount
    37  of the undertaking.
    38    19.  "Unsecured  bail bond" means a bail bond, other than an insurance
    39  company bail bond, not secured by any deposit of or lien upon property.
    40    20.] 10. "Court" includes, where appropriate, a  judge  authorized  to
    41  act as described in a particular statute, though not as a court.
    42    [21.]  11.  "Qualifies  for  electronic  monitoring,"  for purposes of
    43  subdivision four of section 510.40 of this title, means a person charged
    44  with a felony, a misdemeanor crime of domestic violence,  a  misdemeanor
    45  defined  in article one hundred thirty of the penal law, a crime and the
    46  circumstances of paragraph (b) of subdivision two of section  530.60  of
    47  this  title apply, or any crime where such conduct arose while the prin-
    48  cipal was released on his or her own recognizance, released under condi-
    49  tions or had yet to be arraigned after the issuance of a desk appearance
    50  ticket for a separate offense, or any misdemeanor  where  the  defendant
    51  stands  previously  convicted,  within the past [five] ten years, of [ a
    52  violent felony offense as defined in section 70.02 of the penal law] any
    53  crime. For the purposes of this subdivision, in calculating such  [five]
    54  ten  year  period,  any  period  of  time during which the defendant was
    55  incarcerated for any reason between the time of the  commission  of  any
    56  such  previous  crime  and  the  time of commission of the present crime

        S. 5973                            12
 
     1  shall be excluded and such [five] ten year period shall be extended by a
     2  period or periods equal to the time served under such incarceration.
     3    [22.]  12.  "Misdemeanor  crime of domestic violence," for purposes of
     4  subdivision [twenty-one] eleven of this  section,  means  a  misdemeanor
     5  under  the  penal law provisions and circumstances described in subdivi-
     6  sion one of section 530.11 of this title.
     7    § 21. The article heading of article 510 of the criminal procedure law
     8  is amended to read as follows:
     9                     RECOGNIZANCE[, BAIL] AND COMMITMENT--
    10                DETERMINATION OF APPLICATION FOR RECOGNIZANCE
    11                 [OR BAIL], ISSUANCE OF SECURING ORDERS, AND
    12                               RELATED MATTERS
    13    § 22. Section 510.10 of the criminal  procedure  law,  as  amended  by
    14  section  2  of part JJJ of chapter 59 of the laws of 2019, subdivision 1
    15  as amended by section 1 of subpart C of part UU of  chapter  56  of  the
    16  laws of 2022, subdivision 4 as amended by section  2 of part UU of chap-
    17  ter  56  of the laws of 2020, paragraphs (s) and (t) of subdivision 4 as
    18  amended and paragraph (u) as added by section 2 of subpart B of part  UU
    19  of chapter 56 of the laws of 2022, is amended to read as follows:
    20  § 510.10 Securing order; when required; alternatives available; standard
    21             to be applied.
    22    1.  When  a  principal,  whose  future  court attendance at a criminal
    23  action or proceeding is or may be required, comes under the control of a
    24  court, such court shall, in accordance with this title,  by  a  securing
    25  order release the principal on the principal's own recognizance, release
    26  the  principal under non-monetary conditions, [or, where authorized, fix
    27  bail] or commit the principal to the custody of the sheriff. In all such
    28  cases, except where another type  of  securing  order  is  shown  to  be
    29  required  by law, the court shall release the principal pending trial on
    30  the principal's own recognizance, unless  it  is  demonstrated  and  the
    31  court  makes  an individualized determination that the principal poses a
    32  risk of flight to avoid prosecution or poses  a  danger  to  themselves,
    33  another person or the community as a whole.  [If such a finding is made,
    34  the court must select the least restrictive alternative and condition or
    35  conditions that will reasonably assure the principal's return to court.]
    36  The  court shall explain its choice of release, release with conditions,
    37  [bail] or remand on the record or in writing.  In  making  its  determi-
    38  nation, the court must consider and take into account available informa-
    39  tion about the principal, including:
    40    (a)  The  principal's character, reputation, habits, mental condition,
    41  activities and history;
    42    (b) If the principal is a defendant, the charges facing the  principal
    43  and  the weight of the evidence against him or her in the pending crimi-
    44  nal action and any other factor indicating the probability  or  improba-
    45  bility of conviction;
    46    (c) The principal's criminal conviction record if any;
    47    (d)  The  principal's  record  of  previous adjudication as a juvenile
    48  delinquent, as retained pursuant to section 354.1 of  the  family  court
    49  act,  or,  of  pending cases where fingerprints are retained pursuant to
    50  section 306.1 of such act, or a youthful offender, if any;
    51    (e) The principal's previous record in complying  with  court  orders,
    52  including  orders  to appear when required, or with respect to flight to
    53  avoid criminal prosecution;
    54    (f) [If monetary bail is authorized, according to the restrictions set
    55  forth in this title, the principal's individual financial circumstances,
    56  and, in cases where bail is authorized, the principal's ability to  post

        S. 5973                            13

     1  bail  without  posing  undue  hardship, as well as his or her ability to
     2  obtain a secured, unsecured, or partially secured bond;
     3    (g)]  Any  violation by the principal of an order of protection issued
     4  by any court;
     5    [(h)] (g) The principal's history of use or possession of a firearm;
     6    [(i)] (h) Whether the charge is alleged to have caused serious harm to
     7  an individual or group of individuals; and
     8    [(j)] (i) If the principal is a defendant, in the case of an  applica-
     9  tion  for a securing order pending appeal, the merit or lack of merit of
    10  the appeal.
    11    2. A principal is entitled to representation  by  counsel  under  this
    12  chapter  in  preparing an application for release, when a securing order
    13  is being considered and when a securing  order  is  being  reviewed  for
    14  modification, revocation or termination. If the principal is financially
    15  unable to obtain counsel, counsel shall be assigned to the principal.
    16    3.  In  cases  other  than as described in subdivision four or five of
    17  this section the court shall release the principal pending trial on  the
    18  principal's own recognizance, unless the court finds on the record or in
    19  writing  that  release  on  the  principal's  own  recognizance will not
    20  reasonably assure the principal's return to court.  In  such  instances,
    21  the  court  shall  release the principal under non-monetary conditions[,
    22  selecting the least restrictive alternative  and  conditions  that  will
    23  reasonably  assure  the  principal's  return  to court]. The court shall
    24  explain its choice [of alternative and] conditions on the record  or  in
    25  writing.
    26    4.  Where  the  principal  stands charged with a [qualifying offense,]
    27  felony, except a class E felony under title J or K of the penal law,  or
    28  a  qualifying  misdemeanor, or where the court has found that committing
    29  the principal to the custody of the sheriff is warranted under  subdivi-
    30  sion  five  of  this  section, the court, unless otherwise prohibited by
    31  law, may in its discretion release the principal pending  trial  on  the
    32  principal's  own  recognizance  or  under  non-monetary conditions, [fix
    33  bail], or, [where the defendant is charged  with  a  qualifying  offense
    34  which is a felony, the court may] commit the principal to the custody of
    35  the  sheriff.  A  principal  stands  charged with a qualifying [offense]
    36  misdemeanor for the purposes of this subdivision when he or  she  stands
    37  charged with:
    38    (a) [a felony enumerated in section 70.02 of the penal law, other than
    39  robbery  in  the  second degree as defined in subdivision one of section
    40  160.10 of the penal law, provided, however, that burglary in the  second
    41  degree  as defined in subdivision two of section 140.25 of the penal law
    42  shall be a qualifying offense only where the defendant is  charged  with
    43  entering the living area of the dwelling;
    44    (b) a crime involving witness intimidation under section 215.15 of the
    45  penal law;
    46    (c)  a  crime involving witness tampering under section 215.11, 215.12
    47  or 215.13 of the penal law;
    48    (d) a class A felony defined in the penal law, provided that for class
    49  A felonies under article two hundred twenty of the penal law, only class
    50  A-I felonies shall be a qualifying offense;
    51    (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
    52  the penal law, or a felony sex offense defined in section 70.80  of  the
    53  penal  law,  or  a  crime involving incest as defined in section 255.25,
    54  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
    55  hundred thirty of such law;

        S. 5973                            14

     1    (f)  conspiracy  in  the second degree as defined in section 105.15 of
     2  the penal law, where the underlying allegation of such  charge  is  that
     3  the  defendant  conspired  to commit a class A felony defined in article
     4  one hundred twenty-five of the penal law;
     5    (g)  money  laundering  in support of terrorism in the first degree as
     6  defined in section 470.24 of the penal law; money laundering in  support
     7  of  terrorism  in  the second degree as defined in section 470.23 of the
     8  penal law; money laundering in support of terrorism in the third  degree
     9  as  defined  in  section  470.22  of  the penal law; money laundering in
    10  support of terrorism in the fourth degree as defined in  section  470.21
    11  of  the  penal law; or a felony crime of terrorism as defined in article
    12  four hundred ninety of the penal law, other than the  crime  defined  in
    13  section 490.20 of such law;
    14    (h)  criminal  contempt in the second degree as defined in subdivision
    15  three of section 215.50 of the penal law, criminal contempt in the first
    16  degree as defined in subdivision (b), (c) or (d) of  section  215.51  of
    17  the  penal  law  or  aggravated  criminal contempt as defined in section
    18  215.52 of the penal law, and the underlying allegation of such charge of
    19  criminal contempt in the second degree, criminal contempt in  the  first
    20  degree  or aggravated criminal contempt is that the defendant violated a
    21  duly served order of protection where the protected party is a member of
    22  the defendant's same family or household as defined in  subdivision  one
    23  of section 530.11 of this title;
    24    (i)  facilitating  a  sexual  performance by a child with a controlled
    25  substance or alcohol as defined in section 263.30 of the penal law,  use
    26  of  a  child in a sexual performance as defined in section 263.05 of the
    27  penal law or luring a child as defined in  subdivision  one  of  section
    28  120.70  of  the  penal law, promoting an obscene sexual performance by a
    29  child as defined in section 263.10 of the penal law or promoting a sexu-
    30  al performance by a child as defined in section 263.15 of the penal law;
    31    (j) any crime that is alleged to have  caused  the  death  of  another
    32  person;
    33    (k)  criminal obstruction of breathing or blood circulation as defined
    34  in section 121.11 of the penal law, strangulation in the  second  degree
    35  as  defined  in section 121.12 of the penal law or unlawful imprisonment
    36  in the first degree as defined in section 135.10 of the penal  law,  and
    37  is alleged to have committed the offense against a member of the defend-
    38  ant's  same family or household as defined in subdivision one of section
    39  530.11 of this title;
    40    (l) aggravated vehicular assault as defined in section 120.04-a of the
    41  penal law or vehicular assault in the first degree as defined in section
    42  120.04 of the penal law;
    43    (m) assault in the third degree as defined in section  120.00  of  the
    44  penal  law  or arson in the third degree as defined in section 150.10 of
    45  the penal law, when such crime is charged as a hate crime as defined  in
    46  section 485.05 of the penal law;
    47    (n)  aggravated  assault  upon  a person less than eleven years old as
    48  defined in section 120.12 of the penal law or criminal possession  of  a
    49  weapon  on  school  grounds  as defined in section 265.01-a of the penal
    50  law;
    51    (o) grand larceny in the first degree as defined in section 155.42  of
    52  the penal law, enterprise corruption as defined in section 460.20 of the
    53  penal law, or money laundering in the first degree as defined in section
    54  470.20 of the penal law;
    55    (p)  failure  to  register  as  a sex offender pursuant to section one
    56  hundred sixty-eight-t of the correction law or endangering  the  welfare

        S. 5973                            15

     1  of  a child as defined in subdivision one of section 260.10 of the penal
     2  law, where the defendant is  required  to  maintain  registration  under
     3  article  six-C of the correction law and designated a level three offen-
     4  der  pursuant to subdivision six of section one hundred sixty-eight-l of
     5  the correction law;
     6    (q) a crime involving bail jumping under  section  215.55,  215.56  or
     7  215.57  of  the  penal  law,  or a crime involving escaping from custody
     8  under section 205.05, 205.10 or 205.15 of the penal law;
     9    (r) any felony offense committed by  the  principal  while  serving  a
    10  sentence of probation or while released to post release supervision;
    11    (s)  a  felony,  where  the defendant qualifies for sentencing on such
    12  charge as a persistent felony offender pursuant to section 70.10 of  the
    13  penal law;
    14    (t)  any  felony or class A misdemeanor involving harm to an identifi-
    15  able person or property, or any  charge  of  criminal  possession  of  a
    16  firearm  as  defined  in  section  265.01-b of the penal law, where such
    17  charge arose from conduct occurring while the defendant was released  on
    18  his or her own recognizance, released under conditions, or had yet to be
    19  arraigned  after the issuance of a desk appearance ticket for a separate
    20  felony or class A misdemeanor involving harm to an  identifiable  person
    21  or  property,  or  any  charge  of  criminal  possession of a firearm as
    22  defined in section 265.01-b of the penal law,  provided,  however,  that
    23  the  prosecutor must show reasonable cause to believe that the defendant
    24  committed the instant crime and any underlying crime. For  the  purposes
    25  of  this subparagraph, any of the underlying crimes need not be a quali-
    26  fying offense as defined in this subdivision. For the purposes  of  this
    27  paragraph,  "harm  to  an identifiable person or property" shall include
    28  but not be limited to theft of or damage  to  property.  However,  based
    29  upon  a review of the facts alleged in the accusatory instrument, if the
    30  court determines that such theft is negligible and does not appear to be
    31  in furtherance of  other  criminal  activity,  the  principal  shall  be
    32  released  on  his or her own recognizance or under appropriate non-mone-
    33  tary conditions; or
    34    (u) criminal possession of a weapon in the third degree as defined  in
    35  subdivision three of section 265.02 of the penal law or criminal sale of
    36  a  firearm  to  a  minor  as defined in section 265.16 of the penal law]
    37  witness tampering in the fourth degree as defined in section  215.10  of
    38  the penal law;
    39    (b) a misdemeanor under article one hundred thirty of the penal law;
    40    (c) conspiracy in the fifth degree as defined in section 105.05 of the
    41  penal  law  where  the underlying allegations of such charge is that the
    42  defendant conspired to commit a felony  or  misdemeanor  that  otherwise
    43  qualifies for bail;
    44    (d)  criminal  contempt in the second degree as defined in subdivision
    45  three of section 215.50 of the penal law;
    46    (e) a specified offense  enumerated  in  subdivision  two  of  section
    47  240.75  of  the  penal  law  where  such offense is alleged to have been
    48  committed against a member of the defendant's same family  or  household
    49  as defined in subdivision one of section 530.11 of this title;
    50    (f)  any  misdemeanor  when  such  crime is charged as a hate crime as
    51  defined in section 485.05 of the penal law;
    52    (g) bail jumping in the third degree as defined in section  215.55  of
    53  the penal law;
    54    (h)  escape  in  the  third degree as defined in section 205.05 of the
    55  penal law;

        S. 5973                            16
 
     1    (i) any misdemeanor involving intentionally causing  harm  to  another
     2  person or an animal;
     3    (j)  any  misdemeanor  involving  the use and possession of a firearm,
     4  shotgun or rifle;
     5    (k) any class A misdemeanor where such charge arose from conduct while
     6  the defendant was released on his  or  her  own  recognizance,  released
     7  under conditions or had yet to be arraigned after the issuance of a desk
     8  appearance ticket for a separate offense;
     9    (l)  any  other offense that the division of criminal justice services
    10  has identified pursuant to article fifty of the executive law.
    11    5. [Notwithstanding the provisions of subdivisions three and  four  of
    12  this section, with respect to any charge for which bail or remand is not
    13  ordered,  and  for  which  the  court  would  not or could not otherwise
    14  require bail or remand, a defendant may, at any time, request  that  the
    15  court  set  bail  in  a nominal amount requested by the defendant in the
    16  form specified in paragraph (a) of subdivision one of section 520.10  of
    17  this title; if the court is satisfied that the request is voluntary, the
    18  court  shall  set such bail in such amount] Where a defendant is charged
    19  with an offense that does  not  qualify  for  pretrial  detention  under
    20  subdivision  four of this section, the court may commit the principal to
    21  the custody of the sheriff if the court makes an individualized determi-
    22  nation that the principal poses a substantial  risk  of  harm  to  them-
    23  selves,  others  or  the community as a whole, or where the court deter-
    24  mines that the  defendant  has  an  established  history  of  disobeying
    25  directives of the court.
    26    (a)  The  court  may  consider  the following factors when determining
    27  whether a principal poses a risk of harm:
    28    (i) the nature of the principal's prior convictions, including whether
    29  the principal has been convicted  of  any  violent  felonies  listed  in
    30  section 70.02 of the penal law;
    31    (ii) the principal's access to weapons;
    32    (iii) whether the principal has any association with a criminal street
    33  gang,  as  defined  in  section 10-170 of the administrative code of the
    34  city of New York or a criminal enterprise, as defined in section  460.10
    35  of the penal law; and
    36    (iv)  any  history  of  threats  or intimidation to witnesses in prior
    37  criminal proceedings.
    38    (b) The court may consider  the  following  factors  when  determining
    39  whether  a principal has an established history of disobeying directives
    40  of the court:
    41    (i) any history of bench warrants failures to appear;
    42    (ii) previous violation of orders of protection;
    43    (iii)  any history of rearrests while other charges are pending; and
    44    (iv)  any history of witness intimidation or tampering.
    45    6. When a securing order is revoked or  otherwise  terminated  in  the
    46  course of an uncompleted action or proceeding but the principal's future
    47  court  attendance still is or may be required and the principal is still
    48  under the control of a court, a new securing order must be issued.  When
    49  the court revokes or otherwise terminates a securing order which commit-
    50  ted  the  principal  to the custody of the sheriff, the court shall give
    51  written notification to the sheriff of such revocation or termination of
    52  the securing order.
    53    § 23. Section 510.20 of the criminal  procedure  law,  as  amended  by
    54  section  3  of part JJJ of chapter 59 of the laws of 2019, is amended to
    55  read as follows:

        S. 5973                            17
 
     1    1. Upon any occasion when a court has issued  a  securing  order  with
     2  respect  to  a principal and the principal is confined in the custody of
     3  the sheriff as a result of the securing order  or  a  previously  issued
     4  securing  order,  the  principal  may  make  an application for recogni-
     5  zance[,] or release under non-monetary conditions [or bail].
     6    2.  (a)  The principal is entitled to representation by counsel in the
     7  making and presentation of such application. If the principal is  finan-
     8  cially  unable to obtain counsel, counsel shall be assigned to the prin-
     9  cipal.
    10    (b) Upon such application, the principal must be accorded an  opportu-
    11  nity  to  be  heard,  present  evidence  and to contend that an order of
    12  recognizance[,] or release  under  non-monetary  conditions  [or,  where
    13  authorized,  bail]  must  or should issue, that the court should release
    14  the principal on the principal's own recognizance or under  non-monetary
    15  conditions  [rather  than  fix  bail, and that if bail is authorized and
    16  fixed it should be in a suggested amount and form].
    17    § 24. Subdivision 1 of section 510.30 of the criminal  procedure  law,
    18  as  amended  by  section  2 of subpart C of part UU of chapter 56 of the
    19  laws of 2022, is amended to read as follows:
    20    1. With respect to any principal, [the  court  in  all  cases,  unless
    21  otherwise  provided  by  law,  must  impose  the least restrictive] must
    22  consider the kind and degree of control or restriction that is necessary
    23  to secure the principal's return to court when required or mitigate  the
    24  risk  of  danger  to  the principal, another person or the community. In
    25  determining that matter, the court  must,  on  the  basis  of  available
    26  information,  consider and take into account information about the prin-
    27  cipal that is relevant to the principal's return to court, including:
    28    (a) The principal's character, reputation, habits,  mental  condition,
    29  activities and history;
    30    (b)  If the principal is a defendant, the charges facing the principal
    31  and the weight of the evidence against him or her in the pending  crimi-
    32  nal  action  and any other factor indicating the probability or improba-
    33  bility of conviction;
    34    (c) The principal's criminal conviction record if any;
    35    (d) The principal's record of  previous  adjudication  as  a  juvenile
    36  delinquent,  as  retained  pursuant to section 354.2 of the family court
    37  act, or, of pending cases where fingerprints are  retained  pursuant  to
    38  section 306.1 of such act, or a youthful offender, if any;
    39    (e)  The  principal's  previous record in complying with court orders,
    40  including orders to appear when required, or with respect to  flight  to
    41  avoid criminal prosecution;
    42    (f) [If monetary bail is authorized, according to the restrictions set
    43  forth in this title, the principal's individual financial circumstances,
    44  and,  in cases where bail is authorized, the principal's ability to post
    45  bail without posing undue hardship, as well as his  or  her  ability  to
    46  obtain a secured, unsecured, or partially secured bond;
    47    (g)]  Any  violation by the principal of an order of protection issued
    48  by any court;
    49    [(h)] (g) The principal's history of use or possession of a firearm;
    50    [(i)] (h) Whether the charge is alleged to have caused serious harm to
    51  an individual or group of individuals; and
    52    [(j)] (i) If the principal is a defendant, in the case of an  applica-
    53  tion  for a securing order pending appeal, the merit or lack of merit of
    54  the appeal.
    55    § 25. Section 510.40 of the criminal  procedure  law,  as  amended  by
    56  section  6  of part JJJ of chapter 59 of the laws of 2019, paragraph (c)

        S. 5973                            18
 
     1  of subdivision 4 as amended by section 7 of part UU of chapter 56 of the
     2  laws of 2020, is amended to read as follows:
     3  § 510.40 Court notification to principal of conditions of release and of
     4             alleged violations of conditions of release.
     5    1.  Upon  ordering that a principal be released on the principal's own
     6  recognizance[,] or released under non-monetary conditions, [or, if  bail
     7  has  been  fixed,  upon  the posting of bail,] the court must direct the
     8  principal to appear in the criminal action or proceeding involved  when-
     9  ever  the  principal's attendance may be required and to be at all times
    10  amenable to the orders and processes of the court. If such principal  is
    11  in  the  custody of the sheriff [or at liberty upon bail] at the time of
    12  the order, the court must direct that the principal be  discharged  from
    13  such [custody or, as the case may be, that the principal's bail be exon-
    14  erated].
    15    2.  [Upon  the issuance of an order fixing bail, where authorized, and
    16  upon the posting thereof, the court must examine the bail  to  determine
    17  whether  it  complies with the order. If it does, the court must, in the
    18  absence of some factor or circumstance which in law requires or  author-
    19  izes  disapproval thereof, approve the bail and must issue a certificate
    20  of release, authorizing the principal to be  at  liberty,  and,  if  the
    21  principal  is  in  the custody of the sheriff at the time, directing the
    22  sheriff to discharge the principal therefrom. If the bail fixed  is  not
    23  posted, or is not approved after being posted, the court must order that
    24  the  principal  be committed to the custody of the sheriff. In the event
    25  of any such non-approval, the court shall explain  promptly  in  writing
    26  the reasons therefor.
    27    3.]  Non-monetary  conditions  of  release shall be individualized and
    28  established in writing by the court. At future  court  appearances,  the
    29  court shall consider a lessening of conditions or modification of condi-
    30  tions to a less burdensome form based on the principal's compliance with
    31  such  conditions of release. In the event of alleged non-compliance with
    32  the conditions of release in an  important  respect,  pursuant  to  this
    33  subdivision,  additional  conditions may be imposed by the court, on the
    34  record or in writing, only after notice of the facts  and  circumstances
    35  of  such  alleged  non-compliance,  reasonable  under the circumstances,
    36  affording the principal and the principal's attorney and the  people  an
    37  opportunity to present relevant, admissible evidence, relevant witnesses
    38  and  to  cross-examine  witnesses, and a finding by clear and convincing
    39  evidence that the principal violated a condition of release in an impor-
    40  tant respect. Following such a finding, in determining whether to impose
    41  additional conditions for non-compliance, the court shall  consider  and
    42  may  select conditions [consistent with the court's obligation to impose
    43  the least restrictive condition  or  conditions]  that  will  reasonably
    44  assure the defendant's return to court or mitigate the risk of danger to
    45  the  principal, another person or the community. The court shall explain
    46  on the record or in writing the reasons for its  determination  and  for
    47  any changes to the conditions imposed.
    48    [4.]  3.  (a)  Electronic  monitoring of a principal's location may be
    49  ordered only if the court finds, after  notice,  an  opportunity  to  be
    50  heard  and an individualized determination explained on the record or in
    51  writing, that the  defendant  qualifies  for  electronic  monitoring  in
    52  accordance  with  subdivision  [twenty-one]  eleven of section 500.10 of
    53  this title, and no other realistic  non-monetary  condition  or  set  of
    54  non-monetary  conditions will suffice to reasonably assure a principal's
    55  return to court.

        S. 5973                            19
 
     1    (b) The specific method of electronic monitoring  of  the  principal's
     2  location  must  be approved by the court. [It must be the least restric-
     3  tive procedure and method that will reasonably  assure  the  principal's
     4  return  to court, and unobtrusive to the greatest extent practicable] In
     5  determining what method or procedure to approve, the court must consider
     6  those methods or procedures which will reasonably assure the principal's
     7  return to court or mitigate the risk of danger to the principal, another
     8  person or the community.
     9    (c)  Electronic  monitoring  of  the  location  of  a principal may be
    10  conducted only by a public entity under the supervision and control of a
    11  county or municipality or a non-profit  entity  under  contract  to  the
    12  county,  municipality  or  the  state. A county or municipality shall be
    13  authorized to enter into a contract with another county or  municipality
    14  in  the  state  to  monitor  principals under non-monetary conditions of
    15  release in its county, but counties, municipalities and the state  shall
    16  not  contract  with  any  private  for-profit  entity for such purposes.
    17  Counties, municipalities and the state may contract with a private  for-
    18  profit  entity  to  supply electronic monitoring devices or other items,
    19  provided that any interaction with persons under  electronic  monitoring
    20  or  the  data  produced  by such monitoring shall be conducted solely by
    21  employees of a county, municipality, the state, or a  non-profit  entity
    22  under contract with such county, municipality or the state.
    23    [(d)  Electronic  monitoring  of  a  principal's location may be for a
    24  maximum period of sixty days, and may be renewed for such period,  after
    25  notice,  an opportunity to be heard and a de novo, individualized deter-
    26  mination in accordance with this subdivision, which shall  be  explained
    27  on the record or in writing.
    28    A  defendant  subject  to  electronic  location  monitoring under this
    29  subdivision shall be considered held or confined in custody for purposes
    30  of section 180.80 of this chapter and shall be considered  committed  to
    31  the  custody  of the sheriff for purposes of section 170.70 of the chap-
    32  ter, as applicable.]
    33    [5.] 4. If a principal is released under non-monetary conditions,  the
    34  court  shall,  on  the  record and in an individualized written document
    35  provided to the principal, notify the principal, in plain language and a
    36  manner sufficiently clear and specific:
    37    (a) of any conditions to which the principal is subject, to serve as a
    38  guide for the principal's conduct; and
    39    (b) that the possible consequences for violation of such  a  condition
    40  may  include revocation of the securing order and the ordering of a more
    41  restrictive securing order.
    42    § 26. Section 510.45 of  the  criminal  procedure  law,  as  added  by
    43  section  8  of part JJJ of chapter 59 of the laws of 2019, is amended to
    44  read as follows:
    45  § 510.45 Pretrial services agencies.
    46    1. The office of court  administration  shall  certify  and  regularly
    47  review  for  recertification  one  or more pretrial services agencies in
    48  each county to monitor principals  released  under  non-monetary  condi-
    49  tions.  Such office shall maintain a listing on its public website iden-
    50  tifying  by  county  each  pretrial  services agency so certified in the
    51  state.
    52    2. Every such agency shall be a public entity  under  the  supervision
    53  and  control  of  a  county or municipality or a non-profit entity under
    54  contract to the county, municipality or the state. A county  or  munici-
    55  pality  shall be authorized to enter into a contract with another county
    56  or municipality in the state to monitor  principals  under  non-monetary

        S. 5973                            20
 
     1  conditions  of  release  in its county, but counties, municipalities and
     2  the state shall not contract with any private for-profit entity for such
     3  purposes.
     4    3.  (a) Any questionnaire, instrument or tool used with a principal in
     5  the process of  considering  or  determining  the  principal's  possible
     6  release  on recognizance[,] or release under non-monetary conditions [or
     7  on bail,] or used with a principal in  the  process  of  considering  or
     8  determining  a  condition  or  conditions  of release or monitoring by a
     9  pretrial services agency, shall be promptly made available to the  prin-
    10  cipal  and  the principal's counsel upon written request. Any such blank
    11  form questionnaire, instrument or tool regularly used in the county  for
    12  such  purpose or a related purpose shall be made available to any person
    13  promptly upon request.
    14    (b) Any such questionnaire, instrument or tool used to inform determi-
    15  nations on release or conditions of release shall be:
    16    (i) designed and implemented in a way that  ensures  the  results  are
    17  free  from discrimination on the basis of race, national origin, sex, or
    18  any other protected class; and
    19    (ii) empirically validated and regularly revalidated, with such  vali-
    20  dation and revalidation studies and all underlying data, except personal
    21  identifying  information  for  any  defendant,  publicly  available upon
    22  request.
    23    4.[ Supervision by a pre-trial services agency may  be  ordered  as  a
    24  non-monetary  condition  pursuant to this title only if the court finds,
    25  after notice, an opportunity to be heard and an individualized  determi-
    26  nation  explained  on  the record or in writing, that no other realistic
    27  non-monetary condition or set of non-monetary conditions will suffice to
    28  reasonably assure the principal's return to court.
    29    5.] Each pretrial service agency certified  by  the  office  of  court
    30  administration  pursuant  to  this section shall at the end of each year
    31  prepare and file with such office an annual  report,  which  the  office
    32  shall compile, publish on its website and make available upon request to
    33  members of the public. Such reports shall not include any personal iden-
    34  tifying  information for any individual defendants. Each such report, in
    35  addition to other relevant information, shall set  forth,  disaggregated
    36  by each county served:
    37    (a) the number of defendants supervised by the agency;
    38    (b)  the length of time (in months) each such person was supervised by
    39  the agency prior to acquittal, dismissal, release on recognizance, revo-
    40  cation of release on conditions, and sentencing;
    41    (c) the race, ethnicity, age and sex of each person supervised;
    42    (d) the crimes with which each person supervised was charged;
    43    (e) the number of persons supervised for whom release conditions  were
    44  modified  by the court, describing generally for each person or group of
    45  persons the type and nature of the  condition  or  conditions  added  or
    46  removed;
    47    (f) the number of persons supervised for whom release under conditions
    48  was revoked by the court, and the basis for such revocations; and
    49    (g)  the court disposition in each supervised case, including sentenc-
    50  ing information.
    51    § 27. Subdivision 1 of section 510.50 of the criminal  procedure  law,
    52  as  amended  by section 9 of part JJJ of chapter 59 of the laws of 2019,
    53  is amended to read as follows:
    54    1. When the attendance of a principal confined in the custody  of  the
    55  sheriff is required at the criminal action or proceeding at a particular
    56  time  and  place,  the court may compel such attendance by directing the

        S. 5973                            21
 
     1  sheriff to produce the principal at such time and place. If the  princi-
     2  pal  is  at  liberty on the principal's own recognizance or non-monetary
     3  conditions [or on bail], the principal's attendance may be  achieved  or
     4  compelled by various methods, including notification and the issuance of
     5  a  bench warrant, prescribed by law in provisions governing such matters
     6  with respect to the particular kind of action or proceeding involved.
     7    § 28. Article 520 of the criminal procedure law is REPEALED.
     8    § 29. The article heading of article 530 of the criminal procedure law
     9  is amended to read as follows:
    10               [ORDERS OF RECOGNIZANCE OR BAIL] SECURING ORDERS
    11               WITH RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS
    12                      AND PROCEEDINGS--WHEN AND BY WHAT
    13                              COURTS AUTHORIZED
    14    § 30. Section 530.10 of the criminal  procedure  law,  as  amended  by
    15  section  11 of part JJJ of chapter 59 of the laws of 2019, is amended to
    16  read as follows:
    17  § 530.10 Order of recognizance release under non-monetary conditions [or
    18             bail]; in general.
    19    Under circumstances prescribed in this article, a court, upon applica-
    20  tion of a defendant charged with or convicted of an offense, is required
    21  to issue a securing order for such  defendant  during  the  pendency  of
    22  either:
    23    1. A criminal action based upon such charge; or
    24    2. An appeal taken by the defendant from a judgment of conviction or a
    25  sentence  or  from an order of an intermediate appellate court affirming
    26  or modifying a judgment of conviction or a sentence.
    27    § 31. The opening paragraph of subdivision 1 and subdivisions 9 and 11
    28  of section 530.12 of the criminal procedure law, the  opening  paragraph
    29  of subdivision 1 as amended by chapter 526 of the laws of 2013, subdivi-
    30  sion  9 as amended by section 81 of subpart B of part C of chapter 62 of
    31  the laws of 2011, subdivision 11 as amended by section 15 of part JJJ of
    32  chapter 59 of the laws of 2019, are amended to read as follows:
    33    When a criminal action is pending involving a complaint  charging  any
    34  crime or violation between spouses, former spouses, parent and child, or
    35  between  members of the same family or household, as members of the same
    36  family or household are defined in subdivision one of section 530.11  of
    37  this  article, the court, in addition to any other powers conferred upon
    38  it by this chapter may issue a temporary order of protection in conjunc-
    39  tion with any securing order committing the defendant to the custody  of
    40  the  sheriff  or  as  a condition of any order of recognizance or [bail]
    41  release under non-monetary conditions or an adjournment in contemplation
    42  of dismissal.
    43    9. If no warrant, order or temporary  order  of  protection  has  been
    44  issued  by  the  court,  and  an  act  alleged to be a family offense as
    45  defined in section 530.11 of this [chapter] article is the basis of  the
    46  arrest,  the magistrate shall permit the complainant to file a petition,
    47  information or accusatory instrument and  for  reasonable  cause  shown,
    48  shall  thereupon  hold  such  respondent or defendant, admit to, [fix or
    49  accept bail,] or parole him or her for hearing before the  family  court
    50  or appropriate criminal court as the complainant shall choose in accord-
    51  ance with the provisions of section 530.11 of this [chapter] article.
    52    11. If a defendant is brought before the court for failure to obey any
    53  lawful order issued under this section, or an order of protection issued
    54  by  a  court  of competent jurisdiction in another state, territorial or
    55  tribal jurisdiction, and if, after hearing, the court  is  satisfied  by

        S. 5973                            22
 
     1  competent proof that the defendant has willfully failed to obey any such
     2  order, the court may:
     3    (a)  revoke  an  order  of  recognizance or release under non-monetary
     4  conditions [or revoke an order of bail or order forfeiture of such bail]
     5  and commit the defendant to custody; or
     6    (b) restore the case to the calendar when there has been  an  adjourn-
     7  ment  in contemplation of dismissal and commit the defendant to custody;
     8  or
     9    (c) revoke a conditional discharge in accordance with  section  410.70
    10  of this chapter and impose probation supervision or impose a sentence of
    11  imprisonment  in  accordance  with  the  penal law based on the original
    12  conviction; or
    13    (d) revoke probation in accordance with section 410.70 of this chapter
    14  and impose a sentence of imprisonment in accordance with the  penal  law
    15  based  on the original conviction. In addition, if the act which consti-
    16  tutes the violation of the order of protection  or  temporary  order  of
    17  protection  is  a crime or a violation the defendant may be charged with
    18  and tried for that crime or violation.
    19    § 32. Subdivision 8 of section 530.13 of the criminal  procedure  law,
    20  as added by chapter 388 of the laws of 1984, paragraph (a) as amended by
    21  section  13 of part JJJ of chapter 59 of the laws of 2019, is amended to
    22  read as follows:
    23    8. If a defendant is brought before the court for failure to obey  any
    24  lawful  order issued under this section and if, after hearing, the court
    25  is satisfied by competent proof that the defendant has willfully  failed
    26  to obey any such order, the court may:
    27    (a)  revoke  an order of recognizance[,] or release under non-monetary
    28  conditions [or bail] and commit the defendant to custody; or
    29    (b) restore the case to the calendar when there has been  an  adjourn-
    30  ment  in  contemplation of dismissal and commit the defendant to custody
    31  [or impose or increase bail] pending a trial of the  original  crime  or
    32  violation; or
    33    (c)  revoke  a conditional discharge in accordance with section 410.70
    34  of this chapter and impose probation supervision or impose a sentence of
    35  imprisonment in accordance with the penal  law  based  on  the  original
    36  conviction; or
    37    (d) revoke probation in accordance with section 410.70 of this chapter
    38  and  impose  a sentence of imprisonment in accordance with the penal law
    39  based on the original conviction. In addition, if the act which  consti-
    40  tutes  the  violation  of  the order of protection or temporary order of
    41  protection is a crime or a violation the defendant may be  charged  with
    42  and tried for that crime or violation.
    43    §  33.  Section  530.20  of  the criminal procedure law, as amended by
    44  section 16 of part JJJ of chapter 59 of the laws of 2019, paragraph  (a)
    45  of  subdivision  1 as amended by section 3, subparagraphs (xix) and (xx)
    46  of paragraph (b) of subdivision 1 as amended and subparagraph  (xxi)  of
    47  paragraph  (b)  of  subdivision  1 as added by section 4 of subpart C of
    48  part UU of chapter 56 of the laws of 2022, paragraph (b) of  subdivision
    49  1  as amended by section 3 of part UU of chapter 56 of the laws of 2020,
    50  is amended to read as follows:
    51  § 530.20 Securing order by local criminal court when action  is  pending
    52             therein.
    53    When  a  criminal  action  is  pending in a local criminal court, such
    54  court, upon application of a defendant, shall proceed as follows:
    55    1. (a) In cases other than as  described  in  paragraph  (b)  of  this
    56  subdivision  the  court shall release the principal pending trial on the

        S. 5973                            23
 
     1  principal's own recognizance, unless [the court finds on the  record  or
     2  in  writing  that  release  on the principal's own recognizance will not
     3  reasonably assure the principal's return to court]  it  is  demonstrated
     4  and  the  court makes an individualized determination that the principal
     5  poses a risk of flight to avoid prosecution or poses a danger  to  them-
     6  selves,  another person or the community as a whole. [In such instances,
     7  the court shall release the  principal  under  non-monetary  conditions,
     8  selecting  the  least  restrictive  alternative and conditions that will
     9  reasonably assure the principal's return  to  court.]  The  court  shall
    10  explain  its  choice  of  alternative and conditions on the record or in
    11  writing. In making its determination, the court must consider  and  take
    12  into account available information about the principal, including:
    13    (i)  the  principal's character, reputation, habits, mental condition,
    14  activities and history;
    15    (ii) if the principal is a defendant, the charges facing the principal
    16  and the weight of the evidence against him or her in the pending  crimi-
    17  nal  action  and any other factor indicating the probability or improba-
    18  bility of conviction;
    19    (iii) the principal's criminal conviction record if any;
    20    (iv) the principal's record of previous  adjudication  as  a  juvenile
    21  delinquent,  as  retained  pursuant to section 354.1 of the family court
    22  act, or of pending cases where fingerprints  are  retained  pursuant  to
    23  section 306.1 of such act, or a youthful offender, if any;
    24    (v)  the  principal's  previous record in complying with court orders,
    25  including orders to appear when required, or with respect to  flight  to
    26  avoid criminal prosecution;
    27    (vi)  [if  monetary  bail is authorized, according to the restrictions
    28  set forth in this title, the principal's  individual  financial  circum-
    29  stances, and, in cases where bail is authorized, the principal's ability
    30  to post bail without posing undue hardship, as well as his or her abili-
    31  ty to obtain a secured, unsecured, or partially secured bond;
    32    (vii)] any violation by the principal of an order of protection issued
    33  by any court;
    34    [(viii)]  (vii)  the  principal's  history  and use or possession of a
    35  firearm;
    36    [(ix)] (viii) whether the charge is alleged  to  have  caused  serious
    37  harm to an individual or group of individuals; and
    38    [(x)] (ix) if the principal is a defendant, in the case of an applica-
    39  tion  for a securing order pending appeal, the merit or lack of merit of
    40  the appeal.
    41    (b) Where the principal stands charged with [a qualifying  offense]  a
    42  felony,  except a class E felony under title J or K of the penal law, or
    43  a qualifying misdemeanor, or where the court has found  that  committing
    44  the  principal to the custody of the sheriff is warranted under subdivi-
    45  sion two of this section, the court[,] unless otherwise  prohibited  [by
    46  law,]  may  in its discretion release the principal pending trial on the
    47  principal's own recognizance  or  under  non-monetary  conditions,  [fix
    48  bail,]  or,  where  the  defendant  is charged with a qualifying offense
    49  which is a felony, the court may commit the principal to the custody  of
    50  the sheriff. The court shall explain its choice of release, release with
    51  conditions,  [bail]  or  remand on the record or in writing. A principal
    52  stands charged with a qualifying offense when he or she  stands  charged
    53  with:
    54    (i) [a felony enumerated in section 70.02 of the penal law, other than
    55  robbery  in  the  second degree as defined in subdivision one of section
    56  160.10 of the penal law, provided, however, that burglary in the  second

        S. 5973                            24

     1  degree  as defined in subdivision two of section 140.25 of the penal law
     2  shall be a qualifying offense only where the defendant is  charged  with
     3  entering the living area of the dwelling;
     4    (ii)  a  crime  involving witness intimidation under section 215.15 of
     5  the penal law;
     6    (iii) a crime involving witness tampering under section 215.11, 215.12
     7  or 215.13 of the penal law;
     8    (iv) a class A felony defined in the penal  law,  provided,  that  for
     9  class  A  felonies  under  article  two hundred twenty of such law, only
    10  class A-I felonies shall be a qualifying offense;
    11    (v) a sex trafficking offense defined in section 230.34 or 230.34-a of
    12  the penal law, or a felony sex offense defined in section 70.80  of  the
    13  penal  law  or  a  crime  involving incest as defined in section 255.25,
    14  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
    15  hundred thirty of such law;
    16    (vi)  conspiracy  in the second degree as defined in section 105.15 of
    17  the penal law, where the underlying allegation of such  charge  is  that
    18  the  defendant  conspired  to commit a class A felony defined in article
    19  one hundred twenty-five of the penal law;
    20    (vii) money laundering in support of terrorism in the first degree  as
    21  defined  in section 470.24 of the penal law; money laundering in support
    22  of terrorism in the second degree as defined in section  470.23  of  the
    23  penal  law; money laundering in support of terrorism in the third degree
    24  as defined in section 470.22 of  the  penal  law;  money  laundering  in
    25  support  of  terrorism in the fourth degree as defined in section 470.21
    26  of the penal law; or a felony crime of terrorism as defined  in  article
    27  four  hundred  ninety  of the penal law, other than the crime defined in
    28  section 490.20 of such law;
    29    (viii) criminal contempt in the second degree as defined  in  subdivi-
    30  sion  three of section 215.50 of the penal law, criminal contempt in the
    31  first degree as defined in subdivision (b), (c) or (d) of section 215.51
    32  of the penal law or aggravated criminal contempt as defined  in  section
    33  215.52 of the penal law, and the underlying allegation of such charge of
    34  criminal  contempt  in the second degree, criminal contempt in the first
    35  degree or aggravated criminal contempt is that the defendant violated  a
    36  duly served order of protection where the protected party is a member of
    37  the  defendant's  same family or household as defined in subdivision one
    38  of section 530.11 of this article;
    39    (ix) facilitating a sexual performance by a child  with  a  controlled
    40  substance  or alcohol as defined in section 263.30 of the penal law, use
    41  of a child in a sexual performance as defined in section 263.05  of  the
    42  penal  law  or  luring  a child as defined in subdivision one of section
    43  120.70 of the penal law, promoting an obscene sexual  performance  by  a
    44  child as defined in section 263.10 of the penal law or promoting a sexu-
    45  al performance by a child as defined in section 263.15 of the penal law;
    46    (x)  any  crime  that  is  alleged to have caused the death of another
    47  person;
    48    (xi) criminal obstruction of breathing or blood circulation as defined
    49  in section 121.11 of the penal law, strangulation in the  second  degree
    50  as  defined  in section 121.12 of the penal law or unlawful imprisonment
    51  in the first degree as defined in section 135.10 of the penal  law,  and
    52  is alleged to have committed the offense against a member of the defend-
    53  ant's  same family or household as defined in subdivision one of section
    54  530.11 of this article;

        S. 5973                            25

     1    (xii) aggravated vehicular assault as defined in section  120.04-a  of
     2  the  penal  law  or  vehicular assault in the first degree as defined in
     3  section 120.04 of the penal law;
     4    (xiii) assault in the third degree as defined in section 120.00 of the
     5  penal  law  or arson in the third degree as defined in section 150.10 of
     6  the penal law, when such crime is charged as a hate crime as defined  in
     7  section 485.05 of the penal law;
     8    (xiv)  aggravated  assault upon a person less than eleven years old as
     9  defined in section 120.12 of the penal law or criminal possession  of  a
    10  weapon  on  school  grounds  as defined in section 265.01-a of the penal
    11  law;
    12    (xv) grand larceny in the first degree as defined in section 155.42 of
    13  the penal law, enterprise corruption as defined in section 460.20 of the
    14  penal law, or money laundering in the first degree as defined in section
    15  470.20 of the penal law;
    16    (xvi) failure to register as a sex offender pursuant  to  section  one
    17  hundred  sixty-eight-t  of the correction law or endangering the welfare
    18  of a child as defined in subdivision one of section 260.10 of the  penal
    19  law,  where  the  defendant  is  required to maintain registration under
    20  article six-C of the correction law and designated a level three  offen-
    21  der  pursuant to subdivision six of section one hundred sixty-eight-l of
    22  the correction law;
    23    (xvii) a crime involving bail jumping under section 215.55, 215.56  or
    24  215.57  of  the  penal  law,  or a crime involving escaping from custody
    25  under section 205.05, 205.10 or 205.15 of the penal law;
    26    (xviii) any felony offense committed by the principal while serving  a
    27  sentence of probation or while released to post release supervision;
    28    (xix)  a  felony, where the defendant qualifies for sentencing on such
    29  charge as a persistent felony offender pursuant to section 70.10 of  the
    30  penal law;
    31    (xx)  any felony or class A misdemeanor involving harm to an identifi-
    32  able person or property, or any  charge  of  criminal  possession  of  a
    33  firearm  as  defined  in  section  265.01-b  of the penal law where such
    34  charge arose from conduct occurring while the defendant was released  on
    35  his or her own recognizance, released under conditions, or had yet to be
    36  arraigned  after the issuance of a desk appearance ticket for a separate
    37  felony or class A misdemeanor involving harm to an  identifiable  person
    38  or property, provided, however, that the prosecutor must show reasonable
    39  cause  to believe that the defendant committed the instant crime and any
    40  underlying crime. For the purposes of  this  subparagraph,  any  of  the
    41  underlying  crimes  need  not be a qualifying offense as defined in this
    42  subdivision. For the purposes of this paragraph, "harm to  an  identifi-
    43  able person or property" shall include but not be limited to theft of or
    44  damage to property. However, based upon a review of the facts alleged in
    45  the  accusatory  instrument,  if the court determines that such theft is
    46  negligible and does not appear to be in furtherance  of  other  criminal
    47  activity, the principal shall be released on his or her own recognizance
    48  or under appropriate non-monetary conditions; or
    49    (xxi)  criminal  possession of a weapon in the third degree as defined
    50  in subdivision three of section 265.02 of the penal law or criminal sale
    51  of a firearm to a minor as defined in section 265.16 of the  penal  law]
    52  witness  tampering  in the fourth degree as defined in section 215.10 of
    53  the penal law;
    54    (ii) a misdemeanor under article one hundred thirty of the penal law;
    55    (iii) conspiracy in the fifth degree as defined in section  105.05  of
    56  the  penal  law  where the underlying allegations of such charge is that

        S. 5973                            26
 
     1  the defendant conspired to commit a felony or misdemeanor that otherwise
     2  qualifies for bail;
     3    (iv)  criminal contempt in the second degree as defined in subdivision
     4  three of section 215.50 of the penal law;
     5    (v) a specified offense  enumerated  in  subdivision  two  of  section
     6  240.75  of  the  penal  law  where  such offense is alleged to have been
     7  committed against a member of the defendant's same family  or  household
     8  as defined in subdivision one of section 530.11 of this title;
     9    (vi)  any  misdemeanor  when  such crime is charged as a hate crime as
    10  defined in section 485.05 of the penal law;
    11    (vii) bail jumping in the third degree as defined in section 215.55 of
    12  the penal law;
    13    (viii) escape in the third degree as defined in section 205.05 of  the
    14  penal law;
    15    (ix)  any  misdemeanor involving intentionally causing harm to another
    16  person or an animal;
    17    (x) any misdemeanor involving the use and  possession  of  a  firearm,
    18  shotgun or rifle;
    19    (xi)  any  class  A  misdemeanor  where such charge arose from conduct
    20  while the defendant  was  released  on  his  or  her  own  recognizance,
    21  released  under conditions or had yet to be arraigned after the issuance
    22  of a desk appearance ticket for a separate offense;
    23    (xii) any other offense that the division of criminal justice services
    24  has identified pursuant to article fifty of the executive law.
    25    [(d) Notwithstanding the provisions of paragraphs (a) and (b) of  this
    26  subdivision,  with respect to any charge for which bail or remand is not
    27  ordered, and for which the  court  would  not  or  could  not  otherwise
    28  require  bail  or remand, a defendant may, at any time, request that the
    29  court set bail in a nominal amount requested by  the  defendant  in  the
    30  form  specified in paragraph (a) of subdivision one of section 520.10 of
    31  this title; if the court is satisfied that the request is voluntary, the
    32  court shall set such bail in such amount.]
    33    2. Where a defendant is charged with an offense that does not  qualify
    34  for pretrial detention under subdivision four of this section, the court
    35  may  commit  the  principal  to  the custody of the sheriff if the court
    36  makes  an  individualized  determination  that  the  principal  poses  a
    37  substantial  risk  of  harm  to themselves, others or the community as a
    38  whole, or where the court determines that the defendant  has  an  estab-
    39  lished history of disobeying directives of the court.
    40    (a)  The  court  may  consider  the following factors when determining
    41  whether a principal poses a risk of harm:
    42    (i) the nature of the principal's prior convictions, including whether
    43  the principal has been convicted  of  any  violent  felonies  listed  in
    44  section 70.02 of the penal law;
    45    (ii) the principal's access to weapons;
    46    (iii) whether the principal has any association with a criminal street
    47  gang,  as  defined  in  section 10-170 of the administrative code of the
    48  city of New York or a criminal enterprise, as defined in section  460.10
    49  of the penal law; and
    50    (iv)  any  history  of  threats  or intimidation to witnesses in prior
    51  criminal proceedings.
    52    (b) The court may consider  the  following  factors  when  determining
    53  whether  a principal has an established history of disobeying directives
    54  of the court:
    55    (i) any history of bench warrants failures to appear;
    56    (ii) previous violation of orders of protection;

        S. 5973                            27
 
     1    (iii) any history of rearrests while other charges are pending; and
     2    (iv) any history of witness intimidation or tampering.
     3    3.  When the defendant is charged, by felony complaint, with a felony,
     4  the court may, in its  discretion,  order  recognizance,  release  under
     5  non-monetary  conditions,  [or,  where  authorized,  bail] or commit the
     6  defendant to the custody of the sheriff except as otherwise provided  in
     7  subdivision one of this section or this subdivision:
     8    (a) A city court, a town court or a village court may not order recog-
     9  nizance [or bail] when (i) the defendant is charged with a class A felo-
    10  ny, or (ii) the defendant has two previous felony convictions;
    11    (b) No local criminal court may order recognizance[,] or release under
    12  non-monetary  conditions  [or  bail] with respect to a defendant charged
    13  with a felony unless and until:
    14    (i) The district attorney has been heard in the matter or, after know-
    15  ledge or notice of the application  and  reasonable  opportunity  to  be
    16  heard,  has  failed  to appear at the proceeding or has otherwise waived
    17  his right to do so; and
    18    (ii) The court and counsel for the defendant have been furnished  with
    19  a  report  of  the  division of criminal justice services concerning the
    20  defendant's criminal record, if any, or with a police department  report
    21  with  respect  to the defendant's prior arrest and conviction record, if
    22  any. If neither report is available, the court, with the consent of  the
    23  district  attorney, may dispense with this requirement; provided, howev-
    24  er, that in an emergency, including but not  limited  to  a  substantial
    25  impairment in the ability of such division or police department to time-
    26  ly  furnish  such  report,  such  consent  shall not be required if, for
    27  reasons stated on the record, the court deems it unnecessary.  When  the
    28  court  has  been  furnished  with  any  such  report or record, it shall
    29  furnish a copy thereof to counsel for the defendant or, if the defendant
    30  is not represented by counsel, to the defendant.
    31    § 34. Section 530.30 of the criminal procedure law, the section  head-
    32  ing  and  subdivisions  1  and 2 as amended by section 17 of part JJJ of
    33  chapter 59 of the laws of 2019, is amended to read as follows:
    34  § 530.30 Order of recognizance[,] or release under  non-monetary  condi-
    35             tions [or bail]; by superior court judge when action is pend-
    36             ing in local criminal court.
    37    1.  When a criminal action is pending in a local criminal court, other
    38  than one consisting of a superior court judge sitting as such,  a  judge
    39  of  a superior court holding a term thereof in the county, upon applica-
    40  tion of a defendant, may order recognizance[,] or release under non-mon-
    41  etary conditions [or, where authorized, bail] when such  local  criminal
    42  court:
    43    (a)  Lacks  authority to issue such an order, pursuant to the relevant
    44  provisions of section 530.20 of this article; or
    45    (b) Has denied an application for  recognizance[,]  or  release  under
    46  non-monetary conditions [or bail]; or
    47    (c) [Has fixed bail, where authorized, which is excessive; or
    48    (d)] Has set a securing order of release under non-monetary conditions
    49  which  are  more  restrictive  than  necessary  to reasonably assure the
    50  defendant's return to court.
    51    In such case, such superior court judge may vacate the order  of  such
    52  local  criminal court and release the defendant on recognizance or under
    53  non-monetary conditions[, or where authorized,  fix  bail  in  a  lesser
    54  amount or in a less burdensome form, whichever are the least restrictive
    55  alternative  and  conditions that will reasonably assure the defendant's
    56  return to court].  The court must make an  individualized  determination

        S. 5973                            28
 
     1  that  any  conditions  imposed  are  necessary to secure the principal's
     2  return to court when required or mitigate the  risk  of  danger  to  the
     3  principal,  another person or the community. The court shall explain its
     4  choice of alternative and conditions on the record or in writing.
     5    2.  Notwithstanding the provisions of subdivision one of this section,
     6  when the defendant is charged with a felony in a local criminal court, a
     7  superior court judge may not  order  recognizance[,]  or  release  under
     8  non-monetary  conditions  [or,  where authorized, bail] unless and until
     9  the district attorney has had an opportunity to be heard in  the  matter
    10  and  such judge and counsel for the defendant have been furnished with a
    11  report as described in subparagraph (ii) of paragraph (b) of subdivision
    12  [two] three of section 530.20 of this article.
    13    3. Not more than one application may be made pursuant to this section.
    14    § 35. Section 530.40 of the criminal  procedure  law,  as  amended  by
    15  section  18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
    16  as amended by section 3 of subpart B of part UU of  chapter  56  of  the
    17  laws  of 2022, subdivision 4 as amended by section 4 of part UU of chap-
    18  ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision  4  as
    19  amended  and paragraph (u) as added by section 4 of subpart B of part UU
    20  of chapter 56 of the laws of 2022, is amended to read as follows:
    21  § 530.40 Order of recognizance[,] or release under  non-monetary  condi-
    22             tions  [or  bail];  by  superior court when action is pending
    23             therein.
    24    When a criminal action is pending in a  superior  court,  such  court,
    25  upon  application  of  a  defendant,  must or may order recognizance [or
    26  bail] as follows:
    27    1. When the defendant is charged with an offense or offenses  of  less
    28  than  felony  grade  only,  the court must, unless otherwise provided by
    29  law, order recognizance or  release  under  non-monetary  conditions  in
    30  accordance with this section.
    31    2.  When the defendant is charged with a felony, the court may, unless
    32  otherwise provided by law in its discretion, order recognizance, release
    33  under non-monetary conditions or, where  authorized,  [bail]  committing
    34  the  principal  to the custody of the sheriff. In any such case in which
    35  an indictment (a) has resulted from an order of a local  criminal  court
    36  holding the defendant for the action of the grand jury, or (b) was filed
    37  at  a time when a felony complaint charging the same conduct was pending
    38  in a local criminal court, and in which such local criminal court  or  a
    39  superior  court judge has issued an order of recognizance, release under
    40  non-monetary conditions or,  where  authorized,  [bail]  committing  the
    41  principal  to  the  custody of the sheriff which is still effective, the
    42  superior court's order may be in the form of a direction continuing  the
    43  effectiveness of the previous order.
    44    3.  In  cases  other  than  as  described  in subdivision four of this
    45  section the court shall release the principal pending trial on the prin-
    46  cipal's own recognizance, unless [the court finds on the  record  or  in
    47  writing  that  release  on  the  principal's  own  recognizance will not
    48  reasonably assure the principal's return to court]  it  is  demonstrated
    49  and  the  court makes an individualized determination that the principal
    50  poses a risk of flight to avoid prosecution or poses a danger  to  them-
    51  selves, another person, or the community as a whole. [In such instances,
    52  the  court  shall  release  the principal under non-monetary conditions,
    53  selecting the least restrictive alternative  and  conditions  that  will
    54  reasonably  assure  the  principal's  return  to court.] The court shall
    55  explain its choice of alternative and conditions on  the  record  or  in

        S. 5973                            29
 
     1  writing.  In  making its determination, the court must consider and take
     2  into account available information about the principal, including:
     3    (a)  the  principal's character, reputation, habits, mental condition,
     4  activities and history;
     5    (b) if the principal is a defendant, the charges facing the  principal
     6  and  the weight of the evidence against him or her in the pending crimi-
     7  nal action and any other factor indicating the probability  or  improba-
     8  bility of conviction;
     9    (c) the principal's criminal conviction record if any;
    10    (d)  the  principal's  record  of  previous adjudication as a juvenile
    11  delinquent, as retained pursuant to section 354.1 of  the  family  court
    12  act,  or  of  pending  cases where fingerprints are retained pursuant to
    13  section 306.1 of such act, or a youthful offender, if any;
    14    (e) the principal's previous record in complying  with  court  orders,
    15  including  orders  to appear when required, or with respect to flight to
    16  avoid criminal prosecution;
    17    (f) [if monetary bail is authorized, according to the restrictions set
    18  forth in this title, the principal's individual financial circumstances,
    19  and, in cases where bail is authorized, the principal's ability to  post
    20  bail  without  posing  undue  hardship, as well as his or her ability to
    21  obtain a secured, unsecured, or partially secured bond;
    22    (g)] any violation by the principal of an order of  protection  issued
    23  by any court;
    24    [(h)] (g) the principal's history and use or possession of a firearm;
    25    [(i)] (h) whether the charge is alleged to have caused serious harm to
    26  an individual or group of individuals; and
    27    [(j)]  (i) if the principal is a defendant, in the case of an applica-
    28  tion for a securing order pending appeal, the merit or lack of merit  of
    29  the appeal.
    30    4.  Where  the  principal  stands  charged with a [qualifying offense]
    31  felony, except a class E felony under title J or K of the penal law,  or
    32  a  qualifying  misdemeanor, or where the court has found that committing
    33  the principal to the custody of the sheriff is warranted under  subdivi-
    34  sion  two  of  this  section,  the court, unless otherwise prohibited by
    35  law[,] may in its discretion release the principal pending trial on  the
    36  principal's  own  recognizance  or  under  non-monetary conditions, [fix
    37  bail, or, where the defendant is charged with a qualifying offense which
    38  is a felony, the court may] or commit the principal to  the  custody  of
    39  the sheriff. The court shall explain its choice of release, release with
    40  conditions[,  bail]  or  remand on the record or in writing. A principal
    41  stands charged with a qualifying offense for the purposes of this subdi-
    42  vision when he or she stands charged with:
    43    (a) [a felony enumerated in section 70.02 of the penal law, other than
    44  robbery in the second degree as defined in subdivision  one  of  section
    45  160.10  of the penal law, provided, however, that burglary in the second
    46  degree as defined in subdivision two of section 140.25 of the penal  law
    47  shall  be  a qualifying offense only where the defendant is charged with
    48  entering the living area of the dwelling;
    49    (b) a crime involving witness intimidation under section 215.15 of the
    50  penal law;
    51    (c) a crime involving witness tampering under section  215.11,  215.12
    52  or 215.13 of the penal law;
    53    (d) a class A felony defined in the penal law, provided that for class
    54  A  felonies under article two hundred twenty of such law, only class A-I
    55  felonies shall be a qualifying offense;

        S. 5973                            30

     1    (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
     2  the penal law, or a felony sex offense defined in section 70.80  of  the
     3  penal  law  or  a  crime  involving incest as defined in section 255.25,
     4  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
     5  hundred thirty of such law;
     6    (f)  conspiracy  in  the second degree as defined in section 105.15 of
     7  the penal law, where the underlying allegation of such  charge  is  that
     8  the  defendant  conspired  to commit a class A felony defined in article
     9  one hundred twenty-five of the penal law;
    10    (g) money laundering in support of terrorism in the  first  degree  as
    11  defined  in section 470.24 of the penal law; money laundering in support
    12  of terrorism in the second degree as defined in section  470.23  of  the
    13  penal  law; money laundering in support of terrorism in the third degree
    14  as defined in section 470.22 of  the  penal  law;  money  laundering  in
    15  support  of  terrorism in the fourth degree as defined in section 470.21
    16  of the penal law; or a felony crime of terrorism as defined  in  article
    17  four  hundred  ninety  of the penal law, other than the crime defined in
    18  section 490.20 of such law;
    19    (h) criminal contempt in the second degree as defined  in  subdivision
    20  three of section 215.50 of the penal law, criminal contempt in the first
    21  degree  as  defined  in subdivision (b), (c) or (d) of section 215.51 of
    22  the penal law or aggravated criminal  contempt  as  defined  in  section
    23  215.52 of the penal law, and the underlying allegation of such charge of
    24  criminal  contempt  in the second degree, criminal contempt in the first
    25  degree or aggravated criminal contempt is that the defendant violated  a
    26  duly served order of protection where the protected party is a member of
    27  the  defendant's  same family or household as defined in subdivision one
    28  of section 530.11 of this article;
    29    (i) facilitating a sexual performance by a  child  with  a  controlled
    30  substance  or alcohol as defined in section 263.30 of the penal law, use
    31  of a child in a sexual performance as defined in section 263.05  of  the
    32  penal  law  or  luring  a child as defined in subdivision one of section
    33  120.70 of the penal law, promoting an obscene sexual  performance  by  a
    34  child as defined in section 263.10 of the penal law or promoting a sexu-
    35  al performance by a child as defined in section 263.15 of the penal law;
    36    (j)  any  crime  that  is  alleged to have caused the death of another
    37  person;
    38    (k) criminal obstruction of breathing or blood circulation as  defined
    39  in  section  121.11 of the penal law, strangulation in the second degree
    40  as defined in section 121.12 of the penal law or  unlawful  imprisonment
    41  in  the  first degree as defined in section 135.10 of the penal law, and
    42  is alleged to have committed the offense against a member of the defend-
    43  ant's same family or household as defined in subdivision one of  section
    44  530.11 of this article;
    45    (l) aggravated vehicular assault as defined in section 120.04-a of the
    46  penal law or vehicular assault in the first degree as defined in section
    47  120.04 of the penal law;
    48    (m)  assault  in  the third degree as defined in section 120.00 of the
    49  penal law or arson in the third degree as defined in section  150.10  of
    50  the  penal law, when such crime is charged as a hate crime as defined in
    51  section 485.05 of the penal law;
    52    (n) aggravated assault upon a person less than  eleven  years  old  as
    53  defined  in  section 120.12 of the penal law or criminal possession of a
    54  weapon on school grounds as defined in section  265.01-a  of  the  penal
    55  law;

        S. 5973                            31

     1    (o)  grand larceny in the first degree as defined in section 155.42 of
     2  the penal law, enterprise corruption as defined in section 460.20 of the
     3  penal law, or money laundering in the first degree as defined in section
     4  470.20 of the penal law;
     5    (p)  failure  to  register  as  a sex offender pursuant to section one
     6  hundred sixty-eight-t of the correction law or endangering  the  welfare
     7  of  a child as defined in subdivision one of section 260.10 of the penal
     8  law, where the defendant is  required  to  maintain  registration  under
     9  article  six-C of the correction law and designated a level three offen-
    10  der pursuant to subdivision six of section one hundred sixty-eight-l  of
    11  the correction law;
    12    (q)  a  crime  involving  bail jumping under section 215.55, 215.56 or
    13  215.57 of the penal law, or a  crime  involving  escaping  from  custody
    14  under section 205.05, 205.10 or 205.15 of the penal law;
    15    (r)  any  felony  offense  committed  by the principal while serving a
    16  sentence of probation or while released to post release supervision;
    17    (s) a felony, where the defendant qualifies  for  sentencing  on  such
    18  charge  as a persistent felony offender pursuant to section 70.10 of the
    19  penal law;
    20    (t) any felony or class A misdemeanor involving harm to  an  identifi-
    21  able  person  or  property,  or  any  charge of criminal possession of a
    22  firearm as defined in section 265.01-b of  the  penal  law,  where  such
    23  charge  arose from conduct occurring while the defendant was released on
    24  his or her own recognizance, released under conditions, or had yet to be
    25  arraigned after the issuance of a desk appearance ticket for a  separate
    26  felony  or  class A misdemeanor involving harm to an identifiable person
    27  or property, or any charge  of  criminal  possession  of  a  firearm  as
    28  defined  in  section  265.01-b of the penal law, provided, however, that
    29  the prosecutor must show reasonable cause to believe that the  defendant
    30  committed  the  instant crime and any underlying crime. For the purposes
    31  of this subparagraph, any of the underlying crimes need not be a  quali-
    32  fying  offense  as defined in this subdivision. For the purposes of this
    33  paragraph, "harm to an identifiable person or  property"  shall  include
    34  but  not  be  limited  to theft of or damage to property. However, based
    35  upon a review of the facts alleged in the accusatory instrument, if  the
    36  court determines that such theft is negligible and does not appear to be
    37  in  furtherance  of  other  criminal  activity,  the  principal shall be
    38  released on his or her own recognizance or under  appropriate  non-mone-
    39  tary conditions; or
    40    (u)  criminal possession of a weapon in the third degree as defined in
    41  subdivision three of section 265.02 of the penal law or criminal sale of
    42  a firearm to a minor as defined in section  265.16  of  the  penal  law]
    43  witness  tampering  in the fourth degree as defined in section 215.10 of
    44  the penal law;
    45    (b) a misdemeanor under article one hundred thirty of the penal law;
    46    (c) conspiracy in the fifth degree as defined in section 105.05 of the
    47  penal law where the underlying allegations of such charge  is  that  the
    48  defendant  conspired  to  commit  a felony or misdemeanor that otherwise
    49  qualifies for bail;
    50    (d) criminal contempt in the second degree as defined  in  subdivision
    51  three of section 215.50 of the penal law;
    52    (e)  a  specified  offense  enumerated  in  subdivision two of section
    53  240.75 of the penal law where such  offense  is  alleged  to  have  been
    54  committed  against  a member of the defendant's same family or household
    55  as defined in subdivision one of section 530.11 of this title;

        S. 5973                            32
 
     1    (f) any misdemeanor when such crime is charged  as  a  hate  crime  as
     2  defined in section 485.05 of the penal law;
     3    (g)  bail  jumping in the third degree as defined in section 215.55 of
     4  the penal law;
     5    (h) escape in the third degree as defined in  section  205.05  of  the
     6  penal law;
     7    (i)  any  misdemeanor  involving intentionally causing harm to another
     8  person or an animal;
     9    (j) any misdemeanor involving the use and  possession  of  a  firearm,
    10  shotgun or rifle;
    11    (k) any class A misdemeanor where such charge arose from conduct while
    12  the  defendant  was  released  on  his or her own recognizance, released
    13  under conditions or had yet to be arraigned after the issuance of a desk
    14  appearance ticket for a separate offense; or
    15    (l) any other offense that the division of criminal  justice  services
    16  has identified pursuant to article fifty of the executive law.
    17    5.  [Notwithstanding  the provisions of subdivisions three and four of
    18  this section, with respect to any charge for which bail or remand is not
    19  ordered, and for which the  court  would  not  or  could  not  otherwise
    20  require  bail  or remand, a defendant may, at any time, request that the
    21  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] Where a defendant  is  charged
    25  with  an  offense  that  does  not  qualify for pretrial detention under
    26  subdivision four of this section, the court may commit the principal  to
    27  the custody of the sheriff if the court makes an individualized determi-
    28  nation  that  the  principal  poses  a substantial risk of harm to them-
    29  selves, others or the community as a whole, or where  the  court  deter-
    30  mines  that  the  defendant  has  an  established  history of disobeying
    31  directives of the court.
    32    (a) The court may consider  the  following  factors  when  determining
    33  whether a principal poses a risk of harm:
    34    (i) the nature of the principal's prior convictions, including whether
    35  the  principal  has  been  convicted  of  any violent felonies listed in
    36  section 70.02 of the penal law;
    37    (ii) the principal's access to weapons;
    38    (iii) whether the principal has any association with a criminal street
    39  gang, as defined in section 10-170 of the  administrative  code  of  the
    40  city  of New York or a criminal enterprise, as defined in section 460.10
    41  of the penal law; and
    42    (iv) any history of threats or  intimidation  to  witnesses  in  prior
    43  criminal proceedings.
    44    (b)  The  court  may  consider  the following factors when determining
    45  whether a principal has an established history of disobeying  directives
    46  of the court:
    47    (i) any history of bench warrants failures to appear;
    48    (ii) previous violation of orders of protection;
    49    (iii) any history of rearrests while other charges are pending; and
    50    (iv) any history of witness intimidation or tampering.
    51    6.  Notwithstanding the provisions of subdivisions two, three and four
    52  of this section, a superior court may not  order  recognizance,  release
    53  under  non-monetary conditions [or, where authorized, bail,] or permit a
    54  defendant to remain at liberty pursuant to an existing order, after  the
    55  defendant  has been convicted of either: (a) a class A felony or (b) any
    56  class B or class C felony as defined in article one  hundred  thirty  of

        S. 5973                            33
 
     1  the  penal  law committed or attempted to be committed by a person eigh-
     2  teen years of age or older against a person less than eighteen years  of
     3  age. In either case the court must commit or remand the defendant to the
     4  custody of the sheriff.
     5    7.  Notwithstanding the provisions of subdivisions two, three and four
     6  of this section, a superior  court  may  not  order  recognizance[,]  or
     7  release  under non-monetary conditions [or, where authorized, bail] when
     8  the defendant is charged with a felony unless  and  until  the  district
     9  attorney has had an opportunity to be heard in the matter and such court
    10  and  counsel  for  the  defendant  have  been furnished with a report as
    11  described in subparagraph (ii) of paragraph  (b)  of  subdivision  [two]
    12  three of section 530.20 of this article.
    13    §  36.  The section heading and subdivision 1 of section 530.45 of the
    14  criminal procedure law, the section heading as added by chapter  435  of
    15  the  laws of 1974, subdivision 1 as amended by section 19 of part JJJ of
    16  chapter 59 of the laws of 2019, are amended to read as follows:
    17    Order  of  recognizance  [or  bail]  non-monetary  conditions;   after
    18  conviction and before sentence.
    19    1. When the defendant is at liberty in the course of a criminal action
    20  as  a  result  of a prior order of recognizance[,] or release under non-
    21  monetary conditions [or bail] and the court revokes such order and then,
    22  where authorized, [fixes no bail or fixes bail in a greater amount or in
    23  a more burdensome form than was previously fixed and] remands or commits
    24  defendant to the custody of the sheriff, or issues  a  more  restrictive
    25  securing  order,  a judge designated in subdivision two of this section,
    26  upon application of the defendant following  conviction  of  an  offense
    27  other  than  a  class A felony or a class B or class C felony offense as
    28  defined in article one hundred thirty of  the  penal  law  committed  or
    29  attempted  to  be  committed  by a person eighteen years of age or older
    30  against a person less than eighteen years of age, and before sentencing,
    31  may issue a securing order and release the defendant on the  defendant's
    32  own  recognizance,  release the defendant under non-monetary conditions,
    33  [or, where authorized, fix bail or fix bail in a lesser amount or  in  a
    34  less  burdensome form,] or issue a less restrictive securing order, than
    35  fixed by the court in which the conviction was entered.
    36    § 37. Section 530.50 of the criminal  procedure  law,  as  amended  by
    37  chapter  264 of the laws of 2003, subdivision 1 as designated and subdi-
    38  vision 2 as added by section 10 of part UU of chapter 56 of the laws  of
    39  2020,  subdivision  3  as  added by section 4 of subpart D of part UU of
    40  chapter 56 of the laws of 2022, is amended to read as follows:
    41  § 530.50 Order of recognizance or [bail] non-monetary conditions; during
    42             pendency of appeal.
    43    1. A judge who is otherwise authorized pursuant to section  460.50  or
    44  section  460.60  of  this  chapter  to issue an order of recognizance or
    45  [bail] non-monetary conditions pending the determination of  an  appeal,
    46  may  do  so unless the defendant received a class A felony sentence or a
    47  sentence for any class B or class C felony offense  defined  in  article
    48  one hundred thirty of the penal law committed or attempted to be commit-
    49  ted  by  a  person  eighteen years of age or older against a person less
    50  than eighteen years of age.
    51    2. Notwithstanding the  provisions  of  subdivision  four  of  section
    52  510.10 of this title, paragraph (b) of subdivision one of section 530.20
    53  and  subdivision  four of section 530.40 of this [title] article, when a
    54  defendant charged with an offense that is not such a qualifying  offense
    55  applies,  pending  determination  of an appeal, for an order of recogni-
    56  zance or release  on  non-monetary  conditions,  where  authorized,  [or

        S. 5973                            34

     1  fixing bail,] a judge identified in subdivision two of section 460.50 or
     2  paragraph  (a) of subdivision one of section 460.60 of this chapter may,
     3  in accordance with law, and except as otherwise provided by law, issue a
     4  securing  order: releasing the defendant on the defendant's own recogni-
     5  zance or under non-monetary conditions where authorized, [fixing  bail,]
     6  or  remanding  the defendant to the custody of the sheriff where author-
     7  ized.
     8    3. Where an appeal by the people has been taken from an order dismiss-
     9  ing one or more counts of an accusatory instrument for failure to comply
    10  with a discovery order pursuant to subdivision twelve of section  450.20
    11  of  this  chapter and the defendant is charged with a qualifying offense
    12  in the remaining counts in the accusatory instrument,  pending  determi-
    13  nation  of  an  appeal, the defendant may apply for an order of recogni-
    14  zance or release  on  non-monetary  conditions,  where  authorized[,  or
    15  fixing bail]. A judge identified in subdivision two of section 460.50 of
    16  this  chapter  or  paragraph (a) of subdivision one of section 460.60 of
    17  this chapter may, in  accordance  with  law,  and  except  as  otherwise
    18  provided  by  law, issue a securing order releasing the defendant on the
    19  defendant's own recognizance  or  under  non-monetary  conditions  where
    20  authorized,  [fixing bail,] or remanding the defendant to the custody of
    21  the sheriff where authorized.
    22    § 38. Section 530.60 of the criminal  procedure  law,  as  amended  by
    23  section  20 of part JJJ of chapter 59 of the laws of 2019, is amended to
    24  read as follows:
    25  § 530.60 Certain modifications of a securing order.
    26    1. Whenever in the course of a criminal action or proceeding a defend-
    27  ant is at liberty as a result of an order of recognizance[,] or  release
    28  under non-monetary conditions [or bail] issued pursuant to this chapter,
    29  and  the  court considers it necessary to review such order, whether due
    30  to a motion by the people or otherwise, the court  may,  and  except  as
    31  provided in subdivision two of section 510.50 of this title concerning a
    32  failure to appear in court, by a bench warrant if necessary, require the
    33  defendant  to  appear before the court. Upon such appearance, the court,
    34  for good cause shown, may revoke the order of recognizance[,] or release
    35  under non-monetary conditions, [or bail] and commit the principal to the
    36  custody of the sheriff.  [If the defendant is entitled to  recognizance,
    37  release under non-monetary conditions, or bail as a matter of right, the
    38  court  must issue another such order. If the defendant is not, the court
    39  may either issue such an order or commit the defendant to the custody of
    40  the sheriff in accordance with this section.]
    41    Where the defendant is committed to the custody of the sheriff and  is
    42  held  on  a felony complaint, a new period as provided in section 180.80
    43  of this chapter shall commence to run from the time of  the  defendant's
    44  commitment under this subdivision.
    45    2.  (a)  Whenever  in  the course of a criminal action or proceeding a
    46  defendant charged with the commission of a felony is  at  liberty  as  a
    47  result  of  an  order  of  recognizance[,] or release under non-monetary
    48  conditions [or bail] issued pursuant to this article it shall be grounds
    49  for revoking such order that the court finds reasonable cause to believe
    50  the defendant committed one or more [specified class A or violent felony
    51  offenses or intimidated a victim or  witness  in  violation  of  section
    52  215.15,  215.16 or 215.17 of the penal law] felony offenses or misdemea-
    53  nor offenses enumerated in subdivision four of section  510.10  of  this
    54  title while at liberty.
    55    (b)  Except  as  provided  in paragraph (a) of this subdivision or any
    56  other law, whenever in the course of a criminal action or  proceeding  a

        S. 5973                            35
 
     1  defendant  charged  with the commission of an offense is at liberty as a
     2  result of an order of  recognizance[,]  or  release  under  non-monetary
     3  conditions [or bail] issued pursuant to this article it shall be grounds
     4  for  revoking  such  order  and  fixing  bail in such criminal action or
     5  proceeding when the court has found, by clear and  convincing  evidence,
     6  that the defendant:
     7    (i) persistently and willfully failed to appear after notice of sched-
     8  uled appearances in the case before the court; or
     9    (ii)  violated  an  order  of  protection  in the manner prohibited by
    10  subdivision (b), (c) or (d) of section 215.51 of the penal law while  at
    11  liberty; or
    12    (iii)  stands  charged  in  such  criminal action or proceeding with a
    13  misdemeanor or violation and, after  being  so  charged,  intimidated  a
    14  victim  or  witness  in violation of section 215.15, 215.16 or 215.17 of
    15  the penal law or tampered with a witness in violation of section 215.11,
    16  215.12 or 215.13 of the penal law, [law] while at liberty; or
    17    (iv) stands charged in such action or proceeding with  a  felony  and,
    18  after being so charged, committed a felony while at liberty.
    19    (c)  Before revoking an order of recognizance[,] or release under non-
    20  monetary conditions, [or bail] pursuant to this subdivision,  the  court
    21  must  hold a hearing and shall receive any relevant, admissible evidence
    22  not legally privileged. The defendant may  cross-examine  witnesses  and
    23  may  present relevant, admissible evidence on his own behalf. Such hear-
    24  ing may be consolidated with, and conducted at the same time as, a felo-
    25  ny hearing conducted pursuant to article  one  hundred  eighty  of  this
    26  chapter.  A  transcript  of  testimony  taken before the grand jury upon
    27  presentation of the subsequent offense shall be admissible  as  evidence
    28  during  the  hearing.  The district attorney may move to introduce grand
    29  jury testimony of a witness in lieu of that witness' appearance  at  the
    30  hearing.
    31    (d)  Revocation  of  an order of recognizance[,] or release under non-
    32  monetary conditions [or bail] and a new securing order [fixing bail]  or
    33  commitment, as specified in this paragraph and pursuant to this subdivi-
    34  sion shall be for the following periods:
    35    (i)  Under  paragraph (a) of this subdivision, revocation of the order
    36  of recognizance[,] or release under non-monetary conditions [or, as  the
    37  case may be, bail], and a new securing order [fixing bail] or committing
    38  the defendant to the custody of the sheriff shall be as follows:
    39    (A) For a period not to exceed ninety days exclusive of any periods of
    40  adjournment requested by the defendant; or
    41    (B)  Until the charges contained within the accusatory instrument have
    42  been reduced or dismissed such that no count remains which  charges  the
    43  defendant with commission of a felony; or
    44    (C)  Until  reduction or dismissal of the charges contained within the
    45  accusatory instrument charging the subsequent offense such that no count
    46  remains which charges the defendant with commission  of  a  class  A  or
    47  violent felony offense.
    48    Upon  expiration  of  any  of  the three periods specified within this
    49  subparagraph, whichever is shortest, the court may grant or deny release
    50  upon  an  order  of  [bail  or]  recognizance  in  accordance  with  the
    51  provisions of this article. Upon conviction to an offense the provisions
    52  of  [article five hundred thirty of] this [chapter] article shall apply;
    53  and
    54    (ii) Under paragraph (b) of this subdivision, revocation of the  order
    55  of  recognizance[,] or release under non-monetary conditions [or, as the
    56  case may be, bail] shall result in the issuance of a new securing  order

        S. 5973                            36
 
     1  which  may,  if  otherwise  authorized  by  law,  permit the principal's
     2  release on recognizance or release under  non-monetary  conditions,  but
     3  shall  also  render  the  defendant  eligible  for an order [fixing bail
     4  provided,  however, that in accordance with the principles in this title
     5  the court must select the least restrictive alternative and condition or
     6  conditions that will reasonably assure the principal's return to  court]
     7  of  commitment  to  the custody of the sheriff. Nothing in this subpara-
     8  graph shall be interpreted as shortening the  period  of  detention,  or
     9  requiring  or authorizing any less restrictive form of a securing order,
    10  which may be imposed pursuant to any other law.
    11    (e) Notwithstanding the provisions of paragraph (a)  or  (b)  of  this
    12  subdivision  a defendant, against whom a felony complaint has been filed
    13  which charges the defendant with commission of  a  class  A  or  violent
    14  felony  offense  or violation of section 215.15, 215.16 or 215.17 of the
    15  penal law committed while he was at liberty as specified therein, may be
    16  committed to the custody of the sheriff pending a revocation hearing for
    17  a period not to exceed seventy-two hours. An additional  period  not  to
    18  exceed seventy-two hours may be granted by the court upon application of
    19  the  district attorney upon a showing of good cause or where the failure
    20  to commence the hearing was due to the defendant's request  or  occurred
    21  with  his  consent. Such good cause must consist of some compelling fact
    22  or circumstance  which  precluded  conducting  the  hearing  within  the
    23  initial prescribed period.
    24    §  39. The section heading of section 530.70 of the criminal procedure
    25  law is amended to read as follows:
    26    Order  of  recognizance  or  [bail]  non-monetary  conditions;   bench
    27  warrant.
    28    § 40. Section 530.80 of the criminal procedure law is REPEALED.
    29    § 41. Article 540 of the criminal procedure law is REPEALED.
    30    § 42. Subdivisions 2 and 3 of section 550.10 of the criminal procedure
    31  law is amended to read as follows:
    32    2. If the defendant has been arraigned in the action and, by virtue of
    33  a  securing order, is either in the custody of the sheriff or at liberty
    34  within the state on his or her own recognizance or [on bail] under  non-
    35  monetary conditions, his or her attendance may be secured as follows:
    36    (a)    If the defendant is confined in the custody of the sheriff, the
    37  court may direct the sheriff to produce him or her;
    38    (b) If the defendant is at liberty within the state as a result of  an
    39  order  releasing  him or her on his or her own recognizance or [on bail]
    40  under non-monetary conditions, the court may secure his or  her  attend-
    41  ance by notification or by the issuance of a bench warrant.
    42    3.  If  the  defendant's  attendance  cannot  be  secured  by  methods
    43  described in subdivisions one and two of this section, either because he
    44  or she is outside the state or because [he] such defendant  is  confined
    45  in  an  institution  within  the state as a result of an order issued in
    46  some other action, proceeding or matter,  his  or  her  attendance  may,
    47  under  indicated  circumstances,  be secured by procedures prescribed in
    48  the ensuing articles of this title.
    49    § 43. Section 570.36 of the criminal procedure law is amended to  read
    50  as follows:
    51  § 570.36  Commitment to await requisition[; bail].
    52    If  from  the  examination  before the local criminal court it appears
    53  that the person held is the person charged  with  having  committed  the
    54  crime  alleged,  and,  except  in  cases arising under section 570.14 or
    55  570.16 of this article, that he or she has fled from justice, the  local
    56  criminal court must, by a warrant reciting the accusation, commit him or

        S. 5973                            37
 
     1  her  to  the  county  jail for such a time not exceeding thirty days and
     2  specified in the warrant, as will enable the arrest of the accused to be
     3  made under a warrant of the governor on a requisition of  the  executive
     4  authority  of  the state having jurisdiction of the offense[, unless the
     5  accused gives bail as provided in the next section,] or until he or  she
     6  shall be legally discharged.
     7    § 44. Section 570.38 of the criminal procedure law is REPEALED.
     8    §  45. Section 570.40 of the criminal procedure law is amended to read
     9  as follows:
    10  § 570.40  Extension of time of commitment; adjournment.
    11    If the accused is not arrested under warrant of the  governor  by  the
    12  expiration  of the time specified in the warrant, bond or undertaking, a
    13  local criminal court may discharge him or may recommit him for a further
    14  period of sixty days, or for further periods not to exceed in the aggre-
    15  gate sixty days[, or a supreme court justice or county judge  may  again
    16  take  bail  for  his  appearance  and  surrender, as provided in section
    17  570.38 but within a period not to exceed sixty days after  the  date  of
    18  such new bond or undertaking].
    19    § 46. Section 570.42 of the criminal procedure law is REPEALED.
    20    § 47. Paragraph (c) of subdivision 3 of section 722.20 of the criminal
    21  procedure  law, as added by section 1-a of part WWW of chapter 59 of the
    22  laws of 2017, is amended to read as follows:
    23    (c) If there is not reasonable cause to  believe  that  the  defendant
    24  committed  any criminal act, the court must dismiss the felony complaint
    25  and discharge the defendant from custody if he or she is in custody[, or
    26  if he is at liberty on bail, it must exonerate the bail].
    27    § 48. Paragraph (c) of subdivision 3 of section 722.21 of the criminal
    28  procedure law, as added by section 1-a of part WWW of chapter 59 of  the
    29  laws of 2017, is amended to read as follows:
    30    (c)  If  there  is  not reasonable cause to believe that the defendant
    31  committed any criminal act, the court must dismiss the felony  complaint
    32  and discharge the defendant from custody if he or she is in custody[, or
    33  if he is at liberty on bail, it must exonerate the bail].
    34    § 49. Subdivision 2 of section 730.20 of the criminal procedure law is
    35  amended to read as follows:
    36    2.  When the defendant is not in custody at the time a court issues an
    37  order  of  examination,  because  he or she was theretofore released [on
    38  bail  or]  on  his  or  her  own  recognizance  or  under   non-monetary
    39  conditions, the court may direct that the examination be conducted on an
    40  out-patient  basis,  and  at  such  time and place as the director shall
    41  designate.  If, however, the director informs the  court  that  hospital
    42  confinement  of the defendant is necessary for an effective examination,
    43  the court may direct that the defendant be confined in a hospital desig-
    44  nated by the director until the examination is completed.
    45    § 50. Subdivision 1 of section 730.50 of the criminal  procedure  law,
    46  as  amended  by  chapter  7  of  the laws of 2013, is amended to read as
    47  follows:
    48    1. When a superior court, following a hearing  conducted  pursuant  to
    49  subdivision  three  or four of section 730.30 of this article, is satis-
    50  fied that the defendant is not an  incapacitated  person,  the  criminal
    51  action  against  him  or  her  must proceed. If it is satisfied that the
    52  defendant is an incapacitated person, or if no motion for such a hearing
    53  is made, it must adjudicate him or her an incapacitated person, and must
    54  issue a final order of observation or an order of commitment.  When  the
    55  indictment  does  not  charge  a  felony  or when the defendant has been
    56  convicted of an offense other than a felony, such court (a) must issue a

        S. 5973                            38
 
     1  final order of observation committing the defendant to  the  custody  of
     2  the  commissioner  for  care and treatment in an appropriate institution
     3  for a period not to exceed ninety days from  the  date  of  such  order,
     4  provided,  however,  that  the commissioner may designate an appropriate
     5  hospital for placement of a defendant for whom a final order of observa-
     6  tion has been issued, where such hospital is licensed by the  office  of
     7  mental health and has agreed to accept, upon referral by the commission-
     8  er,  defendants subject to final orders of observation issued under this
     9  subdivision, and (b) must dismiss the indictment  filed  in  such  court
    10  against  the  defendant,  and  such  dismissal  constitutes a bar to any
    11  further prosecution of the charge or charges contained in  such  indict-
    12  ment.  Upon  the  issuance of a final order of observation, the district
    13  attorney shall immediately transmit to the  commissioner,  in  a  manner
    14  intended  to  protect  the confidentiality of the information, a list of
    15  names and contact information of persons who may reasonably be  expected
    16  to  be  the  victim  of  any  assault  or any violent felony offense, as
    17  defined in the penal law, or any offense listed  in  section  530.11  of
    18  this  chapter  which  would  be  carried  out  by  the committed person;
    19  provided that the person who reasonably may be expected to be  a  victim
    20  does  not  need  to  be  a member of the same family or household as the
    21  committed person. When the indictment  charges  a  felony  or  when  the
    22  defendant  has  been  convicted  of  a felony, it must issue an order of
    23  commitment committing the defendant to the custody of  the  commissioner
    24  for  care  and  treatment  in  an  appropriate  institution or, upon the
    25  consent of the district attorney, committing him or her to  the  custody
    26  of  the commissioner for care and treatment on an out-patient basis, for
    27  a period not to exceed one year from the date of such order.  [Upon  the
    28  issuance of an order of commitment, the court must exonerate the defend-
    29  ant's  bail  if  he  or she was previously at liberty on bail; provided,
    30  however, that exoneration of bail is not required when  a  defendant  is
    31  committed  to  the custody of the commissioner for care and treatment on
    32  an out-patient basis.] When the defendant  is  in  the  custody  of  the
    33  commissioner  pursuant to a final order of observation, the commissioner
    34  or his or her designee, which may include the director of an appropriate
    35  institution, immediately upon  the  discharge  of  the  defendant,  must
    36  certify  to  such  court  that  he  or  she has complied with the notice
    37  provisions set forth in paragraph (a)  of  subdivision  six  of  section
    38  730.60 of this article.
    39    § 51. Section 246-a of the lien law is REPEALED.
    40    §  52. Article 50 and sections 1000, 1001, 1002 and 1003 of the execu-
    41  tive law, as renumbered by chapter 770 of the laws of 1978,  are  renum-
    42  bered  article 51 and sections 1100, 1101, 1102 and 1103 and a new arti-
    43  cle 50 is added to read as follows:
    44                                 ARTICLE 50
    45                     COMMISSION ON PUBLIC SAFETY REFORM
    46  Section 1005. Commission on public safety reform.
    47          1006. Powers and duties of the commission.
    48    § 1005. Commission on public safety reform. 1. There is hereby created
    49  in the department, the commission on public safety reform,  which  shall
    50  consist of the following fifteen members:
    51    (a)  the commissioner of the division of criminal justice services who
    52  shall be chair of the commission;
    53    (b) fourteen members appointed by the governor.
    54    2. Of the members appointed by the governor:
    55    (a) one member shall be a representative of a law  enforcement  agency
    56  located  outside  of  a  city  with a population of over one million and

        S. 5973                            39
 
     1  shall be appointed upon the recommendation of the commissioner of crimi-
     2  nal justice services;
     3    (b)  one  member shall be a representative of a law enforcement agency
     4  located within a city with a population of over one million and shall be
     5  appointed upon the recommendation of the mayor of such city;
     6    (c) one member shall be a district attorney of a county outside a city
     7  with a population of one million and shall be appointed upon the  recom-
     8  mendation of an organization representing district attorneys;
     9    (d)  one member shall be a district attorney of a county within a city
    10  with a population of greater than one million  and  shall  be  appointed
    11  upon the recommendation of the mayor of such city;
    12    (e)  one  member  shall  be  a  representative  of the public criminal
    13  defense bar who shall be appointed upon the recommendation of an  organ-
    14  ization representing public defense services;
    15    (f)  one  member  shall  be  a  representative of the private criminal
    16  defense bar who shall be appointed upon the recommendation of an  organ-
    17  ization of such bar;
    18    (g)  two members shall appointed upon the recommendation of the tempo-
    19  rary president of the senate;
    20    (h) two members shall be appointed  upon  the  recommendation  of  the
    21  speaker of the assembly;
    22    (i)  one  member  shall  be  appointed  upon the recommendation of the
    23  minority leader of the senate;
    24    (j) one member shall be  appointed  upon  the  recommendation  of  the
    25  minority leader of the assembly;
    26    (k)  one  member  shall  be  appointed  upon the recommendation of the
    27  attorney general of the state of New York; and
    28    (l) one member, who shall be an attorney or judge shall  be  appointed
    29  upon the recommendation of the chief judge of the court of appeals.
    30    3.  Of  the  members  appointed  by the governor, each member shall be
    31  appointed to serve a two year term. Any member appointed by the governor
    32  may be reappointed for additional two year terms.
    33    4. Any member chosen to fill a vacancy created otherwise than by expi-
    34  ration of term shall be appointed by the governor for the unexpired term
    35  of the member he or she is to succeed. Any such vacancy shall be  filled
    36  in the same manner as the original appointment.
    37    5.  The  commission  shall  meet at least four times each year and may
    38  establish its own rules and procedures concerning  the  conduct  of  its
    39  meetings and other affairs not inconsistent with law.
    40    6.  No  member  of  the  commission  on  public safety reform shall be
    41  disqualified from holding any public office or employment, nor shall  he
    42  or  she  forfeit  any such office or employment, by reason of his or her
    43  appointment hereunder, and  members  of  the  commission  shall  not  be
    44  required  to take and file oaths of office before serving on the commis-
    45  sion.
    46    7. Members of the commission shall receive no compensation  for  their
    47  services  but  shall  be  allowed  their  actual  and necessary expenses
    48  incurred in the performance of their functions hereunder.
    49    § 1006. Powers and duties of the commission. 1. The  commission  shall
    50  have the following duties, including, but not limited to:
    51    (a)  The commission shall conduct a thorough study and issue a compre-
    52  hensive  report  on  which  crimes  should  be  eligible  for   pretrial
    53  detention.  When conducting such study the commission shall seek to find
    54  the appropriate balance between public safety  and  the  rights  of  the
    55  accused. The commission shall consider the following factors, including,
    56  but not limited to:

        S. 5973                            40
 
     1    (i) data on crime in New York state;
     2    (ii)  a  review  of the successes and challenges faced by other states
     3  that have enacted large scale criminal justice reform;
     4    (iii) rates of recidivism; and
     5    (iv) any other factor the commission deems relevant.
     6    (b) The comprehensive  report  shall  contain  detailed  analysis  and
     7  justification  of  the  data utilized to determine which crimes shall or
     8  shall not be eligible for pretrial detention.
     9    (c) The commission shall draft and publish a model risk analysis  tool
    10  utilizing  crime  data  from the department of criminal justice services
    11  for use by judges in determining if it is appropriate  for  a  judge  to
    12  remand  an  individual  accused  of a crime. The commission will hold at
    13  least one public hearing on this model risk analysis tool  within  eigh-
    14  teen months of the effective date of this section, and shall publish the
    15  final model risk analysis tool within ninety days of the public hearing.
    16    2.  Within one year of the effective date of this section, the commis-
    17  sion on public safety reform shall issue a draft report, which shall  be
    18  submitted  to  the  governor, the temporary president of the senate, the
    19  speaker of the assembly, the minority leader  of  the  senate,  and  the
    20  minority  leader  of  the  assembly on recommended eligible for pretrial
    21  detention crimes with supporting evidence of  why  certain  crimes  were
    22  included  and others were excluded. At least three public hearings shall
    23  be held by the commission to provide the public with the opportunity  to
    24  comment  on the report. Notice of such hearings shall be provided on the
    25  department of criminal justice services website.
    26    3. Within ninety days of the date of  the  last  public  hearing,  the
    27  commission  on  public  safety reform shall submit a final report to the
    28  governor, the temporary president of the  senate,  the  speaker  of  the
    29  assembly,  the minority leader of the senate, and the minority leader of
    30  the assembly. Copies of such report shall also be made available to  the
    31  public  and posted on the websites of the department of criminal justice
    32  services.
    33    § 53. This act shall take effect immediately; provided, however,  that
    34  sections  one  through  fifty-one  of  this act shall take effect on the
    35  ninetieth day after it shall have become a law.
Go to top