Expand Non-Cash Pretrial Release

Section 1. Subdivisions 1, 2, 4, 5, 6, 7, 8 and 9 of section 500.10 of the criminal procedure law are amended and a new subdivision 3-a is added to read as follows:

1. "Principal" means a defendant in a criminal action or proceeding, or a person adjudged a material witness therein, or any other person so involved therein that [he] the principal may by law be compelled to appear before a court for the purpose of having such court exercise control over [his] the principal's person to secure [his] the principal's future attendance at the action or proceeding when required, and who in fact either is before the court for such purpose or has been before it and been subjected to such control.

2. "Release on own recognizance." A court releases a principal on [his] the principal's own recognizance when, having acquired control over [his] the principal's person, it permits [him] the principal to be at liberty during the pendency of the criminal action or proceeding involved upon condition that [he] the principal will appear thereat whenever [his] the principal's attendance may be required and will at all times render [himself] the principal amenable to the orders and processes of the court.

3-a. "Release under non-monetary conditions." A court releases a principal under non-monetary conditions when, having acquired control over a person, it authorizes the person to be at liberty during the pendency of the criminal action or proceeding involved under conditions ordered by the court, which shall be the least restrictive conditions that will reasonably assure the principal's return to court. Such conditions may include, among other conditions reasonable under the circumstances: that the principal be in contact with a pretrial services agency serving principals in that county; that the principal abide by reasonable, spec-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD14638-11-8

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ified restrictions on travel that are reasonably related to an actual risk of intentional flight from the jurisdiction; that the principal refrain from possessing a firearm, destructive device or other dangerous weapon; that, when it is shown pursuant to subdivision four of section 510.45 of this title that no other realistic monetary condition or set of non-monetary conditions will suffice to reasonably assure the person's return to court, the person be placed in reasonable pretrial supervision with a pretrial services agency serving principals in that county; that, when it is shown pursuant to paragraph (a) of subdivision four of section 510.40 of this title that no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure the principal's return to court, the principal's location be monitored with an approved electronic monitoring device, in accordance with such subdivision four of section 510.40 of this title. A principal shall not be required to pay for any part of the cost of release on non-monetary conditions.

4. "Commit to the custody of the sheriff." A court commits a principal to the custody of the sheriff when, having acquired control over [his] the principal's person, it orders that [he] the principal be confined in the custody of the sheriff during the pendency of the criminal action or proceeding involved.

5. "Securing order" means an order of a court committing a principal to the custody of the sheriff[,] or fixing bail, where authorized, or releasing [him on his] the principal on the principal's own recognizance or releasing the principal under non-monetary conditions.

6. "Order of recognizance or bail" means a securing order releasing a principal on [his] the principal's own recognizance or under non-monetary conditions or, where authorized, fixing bail.

7. "Application for recognizance or bail" means an application by a principal that the court, instead of committing [him] the principal to or retaining [him] the principal in the custody of the sheriff, either release [him on his own] the principal on the principal's own recognizance [or], release under non-monetary conditions, or, where authorized, fix bail.

8. "Post bail" means to deposit bail in the amount and form fixed by the court, with the court or with some other authorized public servant or agency.

9. "Bail" means cash bail [or], a bail bond or money paid with a credit card.

§ 2. Section 510.10 of the criminal procedure law, as amended by chapter 459 of the laws of 1984, is amended to read as follows: § 510.10 Securing order; when required; alternatives available; standard

to be applied.

1. When a principal, whose future court attendance at a criminal action or proceeding is or may be required, [initially] comes under the control of a court, such court [must] shall, in accordance with this title, by a securing order[, either] release [him] the principal on [his] the principal's own recognizance, release the principal under non-monetary conditions, or, where authorized, fix bail or commit [him] the principal to the custody of the sheriff. In all such cases, except where another type of securing order is shown to be required by law, the court shall release the principal pending trial on the principal's own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal is a significant risk of intentional flight to avoid prosecution. If such a finding is made, the court

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must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court.

2. A principal is entitled to representation by counsel under this chapter in preparing an application for release, when a securing order is being considered and when a securing order is being reviewed for modification, revocation or termination. If the principal is financially unable to obtain counsel, counsel shall be assigned to the principal.

3. In cases where the most serious offense with which the defendant stands charged in the case before the court or a pending case is an offense that is not a class A felony defined in the penal law or a felony enumerated in section 70.02 of the penal law (other than burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of such law or reporting a false incident in the second degree as defined in section 240.55 of such law), the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

4. Except as provided in subdivision five of this section, in cases where an offense with which the defendant stands charged in the case before the court or a pending case is a felony enumerated in section 70.02 of the penal law (except burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of such law or reporting a false incident in the second degree as defined in section 240.55 of such law), the court, unless otherwise prohibited by law, shall release the principal pending trial on the principal's own recognizance or under non-monetary conditions, or fix bail. In such instances, the court shall select the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

5. In cases where an offense with which the defendant stands charged in the case before the court or a pending case is a felony sex offense as defined in section 70.80 of the penal law, a felony terrorism offense under section 490.10, 490.15, 490.30, 490.35, 490.37, 490.40, 490.45, 490.47, 490.50 or 490.55 of the penal law, a class A felony offense defined in the penal law, a felony offense of witness intimidation under section 215.15, 215.16, or 215.17 of the penal law, a felony offense where a required element thereof is an intent to cause serious physical injury or death to another person and causing such injury or death to such person or a third person, or a felony for when the defendant would be eligible for sentencing under section 70.08 of the penal law, the court, unless otherwise prohibited by law, shall release the principal pending trial under non-monetary conditions, or fix bail, or commit the principal to the custody of the sheriff. In such instances, the court shall select the least restrictive alternative and conditions that will reasonably assure the principal's return to court. The court shall explain its choice of alternative and conditions on the record or in writing.

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6. When a securing order is revoked or otherwise terminated in the course of an uncompleted action or proceeding but the principal's future court attendance still is or may be required and [he] the principal is still under the control of a court, a new securing order must be issued. When the court revokes or otherwise terminates a securing order which committed the principal to the custody of the sheriff, the court shall give written notification to the sheriff of such revocation or termination of the securing order.

§ 3. Section 510.20 of the criminal procedure law is amended to read as follows: § 510.20 Application for [recognizance or bail; making and determi-

nation thereof in general] a change in securing order.

1. Upon any occasion when a court [is required to issue] has issued a securing order with respect to a principal[, or at any time when a] and the principal is confined in the custody of the sheriff as a result of the securing order or a previously issued securing order, [he] the principal may make an application for recognizance, release under non-monetary conditions or bail.

2. (a) The principal is entitled to representation by counsel in the making and presentation of such application. If the principal is financially unable to obtain counsel, counsel shall be assigned to the principal.

(b) Upon such application, the principal must be accorded an opportunity to be heard, present evidence and to contend that an order of recognizance, release under non-monetary conditions or, where authorized, bail must or should issue, that the court should release [him on his] the principal on the principal's own recognizance or under non-monetary conditions rather than fix bail, and that if bail is authorized and fixed it should be in a suggested amount and form.

§ 4. The criminal procedure law is amended by adding a new section 510.25 to read as follows: § 510.25 Rehearing after five days in custody.

In addition to any other available pre-conviction motion or procedure, a principal for whom bail is authorized and was fixed, or who was remanded to the custody of the sheriff but is legally eligible for release, and who is in custody five days thereafter shall be brought before the court the next business day for a rehearing on the securing order. The court shall consider the matter in accordance with section 510.10 of this article, de novo, including the principal's individual financial circumstances, hear from the defense and, if they so desire, the people, consider relevant testimony and cross-examination presented, consider any relevant, admissible evidence not legally privileged, and order a new securing order in accordance with the principles and procedures in this article. This process shall continue with additional rehearings, held promptly on reasonable written request of defense counsel, made on notice to the people.

§ 5. Section 510.30 of the criminal procedure law, subparagraph (v) of paragraph (a) of subdivision 2 as amended by chapter 920 of the laws of 1982, subparagraph (vi) of paragraph (a) of subdivision 2 as renumbered by chapter 447 of the laws of 1977, subparagraph (vii) as added and subparagraphs (viii) and (ix) of paragraph (a) of subdivision 2 as renumbered by section 1 of part D of chapter 491 of the laws of 2012, and subdivision 3 as added by chapter 788 of the laws of 1981, is amended to read as follows: § 510.30 Application for [recognizance or bail] securing order; rules of

law and criteria controlling determination.

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