Relates to the power of courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community

Section 2 amends Section 530.30 of the Criminal Procedure Law which provides authority for a superior court judge to grant recognizance or bail in felony cases where certain local criminal courts have no authority to prohibit such judge from ordering recognizance or bail unless it appears the defendant poses no risk of danger to the community.

Section 3 amends Section 530.40 of the Criminal Procedure Law to prohibit a court from ordering recognizance or bail when the defendant poses a risk of danger to the community when a criminal action is pending in superior court.

Section 4 amends Section 530.45 of the Criminal Procedure Law regarding orders of recognizance or bail after conviction but before sentencing, to deny the court the authority to order such, when the defendant poses a risk of danger to the community.

Section 5 amends Section 530.50 of the Criminal Procedure Law pertaining to recognizance or bail authorization or denial pending the determination of an appeal to deny its granting if the defendant poses a risk of danger to the community.

Section 6 amends Section 530.60 of the Criminal Procedure Law relating to securing order review to deny the granting of recognizance or bail when the defendant poses a risk of danger to the community.

Section 7 contains the effective date.

Justification

Neither the Constitution of the State of New York nor the Criminal Procedure Law confers an absolute right to bail in all cases. The former provides merely that "Excessive bail shall not be required" (Art. I, Section 5), the latter establishes criteria for determining when bailor recognizance is mandated, prohibited or discretionary (CPL 510.30, subd. 1; 530, subds. 1, 2). Risk or danger to the community is not one of the listed criteria, and hence courts have held it may not properly be considered by the court fixing bail in those cases.

Unlike federal law, which sets out standards that permit a court to commit a defendant for preventive detention (deny bail) to reasonably assure the safety of the community (18 U .S.C. Section 3142), the sale objective to be considered when a New York court exercises discretion in granting bail is "the kind and degree of control or

restriction that is necessary to secure THE PRINCIPAL'S court attendance when required."

For seven weeks in 2005, Level 3 sex offender, Joseph Duncan sexually brutalized 8 year old Shasta Groene after allegedly murdering her 9 year old and 13 year old brothers, her mother and her mother's boyfriend in Idaho. Earlier that year a Minnesota judge released Duncan on $15,000 bail after being charged with molesting a 6 year old boy at a Minnesota school playground, aware of his history of sexual abuse and violence against children. Duncan subsequently jumped bail, fled the state and headed for Idaho.

This legislation strikes at the core of one of the most serious threats to public safety today, the failure to recognize public safety as a criterion in deciding pre-trial and post-trial release matters by requiring the courts to deny bail when the defendant poses a risk of danger.

Legislative history

2006: A.9501, Held in Codes 2007-08: A.2979, Held in Codes

Fiscal implications

Undetermined.

Effective date

Immediately.