Provides for denial of recognizance or bail in certain cases

Summary of specific provisions

This bill amends the recognizance and bail articles of the Criminal Procedure Law. It adds a new definition, "person who must be committed to the custody of the sheriff", to establish the criteria for prohibition of bail or recognizance.

These criteria consist of two basic factors: (1) a crime of violence; and (2) prior serious involvement with the criminal justice system.

The crimes covered are as follows:

* Murder first or second degree * Kidnapping first or second degree * Arson first or second degree * Aggravated assault upon a police officer or a peace officer * Criminal use of a firearm in the first or second degree * Rape or sodomy first degree * Robbery or burglary first degree * Robbery or burglary second degree (certain cases) * Manslaughter first degree

The prior involvement criteria are:

* Prior conviction of any of the above * Prior conviction of any other felony committed within previous five years * On recognizance or bail for a felony at time one of the above crimes was committed

Where these criteria are present a local criminal court cannot grant release on bail or recognizance. A defendant may, however, apply to a county court judge or supreme court justice who will have the authority to consider granting release if he finds one or more of the following factors:

* Mitigating circumstances that bear directly upon the manner in which the crime was committed * No serious harm was cause or threatened * Where the defendant was not the sole participant in the crime, his participation was relatively minor

The court would have discretion to conduct a hearing and, if the court does not grant release, the court would be required to specify the reason for its decision publicly on the record.

A superior court also would be permitted to consider release of the defendant if the prosecution fails to adhere to a stepped up timetable for trial as specified in the new law. Thus, if an opportunity for trial is not afforded the defendant within sixty days from the date of arrest, a county or supreme court may grant recognizance or bail in its discretion in accordance with the criteria it ordinarily would utilize. The sixty day period would, of course, be computed after excluding delays encountered by actions or motions on the part of the defendant There also is a provision that permits release if the people do not at any time proceed with due diligence and are unable to show good cause for such failure, but good cause will not include. shortage of judicial or nonjudicial personnel or shortage of courtroom availability. Here too, the court would have the power to take evidence and the court would be required to specify the reasons for its decision to release on the public record.

In connection with the above noted stepped up time schedule, it is relevant to observe that the criteria are not the same as the present speedy trial ready rule which would remain unchanged by this bill. That rule (Criminal Procedure Law, §30.30) requires that a defendant be released on bail or recognizance if the people are not ready for trial within 90 days, but it does not apply where the reason for delay is lack of court resources.

Justification

Although no precise records are available it is well known that a substantial portion of crime is attributable to persons with prior felony convictions and persons who are at liberty on bail or recognizance awaiting trial on a previous accusation.

Some reports have noted that 80% of all persons convicted of robbery have at least one prior felony arrest. In addition, one study revealed that in a given year, more than 2,000 persons arrested in New York City for new crimes were already wanted under bench warrants issued for absconding from recognizance or bail granted on a prior felony charge. This does not include the number arrested for new crimes before absconder warrants were issued on previous pending cases or the number who were not yet apprehended.

In cases where studies have been made the results have been characterized as "startling". In his successful move to have the U.S. Senate incorporate the concept of "danger to the community" as a factor in Federal pretrial release, Senator Dole observed (Congressional Record, 1-23-78,S.282): "Several academic studies of the continuing criminal habits of persons granted pretrial release have revealed startling conclusions. The institute for law and social research found that 26 percent of all felonies committed in the District of Columbia were committed by a person on some form of conditional release, Defendants have rights and those rights should be jealously guarded. But the public has rights too".

The courts, as well as the public, are looking to the legislature for an expression of State policy. It is not sufficient or even honorable to continue to express that policy through ad hoc criticism of judicial bail decisions which are made without legislative guidance. Since our highest court has repeatedly indicated that the denial of bail in a felony case is not unconstitutional, and that the question of when bail should be granted is a matter left to the Legislature, it seems clear that public protection requires the Legislature to squarely face the issue (see PEOPLE EX REL. SHAPIRO V. KEEPER OF CITY PRISON, ET AL 290 NY 393 (1943); PEOPLE EX REL. KLEIN V. KRUGER, 25 NY2d 497 (1969)).

The legislative responsibility must be met. Public safety cries out for action now.

Prior legislative history

1999/00: A.5568 Referred to Codes Committee. 2001/02: A.6295 Referred to Codes Committee. 2003/04: A.5700 Referred to Codes Committee. 2005/06: A.4722 Held for consideration in Codes. 2007: S.4417 Passed Senate/A.4566 Assembly Codes Cmte. 2008: S.4417 Senate Codes Cmte/A.4566 Assembly Codes Cmte.

Fiscal implications for state and local governments

Additional court parts and ancillary services (prosecutorial and defense) would be needed to provide more prompt opportunities for trial. Additional detention space would also have to be made available in certain places. However, New York City, for example, appears to have available vacant spaces at the present time that might be used for detention.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.