STATE OF NEW YORK ________________________________________________________________________ 6688--A 2019-2020 Regular Sessions IN ASSEMBLY March 15, 2019 ___________ Introduced by M. of A. BURKE -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to the "Justice for Rachael" act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "Justice 2 for Rachael" act. 3 § 2. The criminal procedure law is amended by adding a new section 4 510.55 to read as follows: 5 § 510.55 Pretrial detention; dangerousness hearing. 6 1. When a principal, whose future court attendance at a criminal 7 action or proceeding is or may be required, comes under the control of a 8 court, the people may make a motion seeking pretrial detention due to 9 the dangerousness of the principal. The people may seek the pretrial 10 detention of a principal: 11 (a) charged with a felony that involves the use, attempted use or 12 threatened use of physical force against the person of another or any 13 other felony that, by its nature, involves a substantial risk that phys- 14 ical force against the person of another may result; 15 (b) charged with a misdemeanor or felony which has as an element the 16 violation of a court order; 17 (c) charged with a misdemeanor or felony where the victim was 18 subjected to physical, sexual or psychological abuse inflicted by a 19 member of the same family or household, as such term is defined in 20 subdivision one of section 530.11 of this title, as the applicant; 21 (d) charged with an offense for which a minimum term of three years or 22 more is prescribed; 23 (e) charged with intimidating a victim or witness in the first degree 24 as defined in section 215.17 of the penal law, intimidating a victim or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10668-04-9

A. 6688--A 2 1 witness in the second degree as defined in section 215.16 of the penal 2 law, or intimidating a victim or witness in the third degree as defined 3 in section 215.15 of the penal law; 4 (f) charged with a third or subsequent violation of section eleven 5 hundred ninety-two of the vehicle and traffic law within ten years; 6 (g) charged with a felony which has as an element the use, attempted 7 use or threatened use of physical force or a deadly weapon against the 8 person of another; 9 (h) charged with burglary in the first degree as defined in section 10 140.30 of the penal law, burglary in the second degree as defined in 11 section 140.25 of the penal law, or burglary in the third degree as 12 defined in section 140.20 of the penal law, grand larceny in the second 13 degree as defined in section 155.40 of the penal law, or grand larceny 14 in the fourth degree as defined in section 155.30 of the penal law; 15 (i) charged under article one hundred fifty of the penal law; 16 (j) charged with kidnapping in the first degree as defined in section 17 135.25 of the penal law or kidnapping in the second degree as defined in 18 section 135.20 of the penal law; 19 (k) charged with a crime which involved the use of explosives; 20 (l) otherwise involves conduct that presents a serious risk of phys- 21 ical injury to another for which a term of imprisonment was served and 22 arrested and charged with a second or subsequent offense under article 23 two hundred sixty-five of the penal law; or 24 (m) charged with a felony under article twenty-six of the agriculture 25 and markets law. 26 2. (a) Upon the appearance of the principal charged with an offense 27 listed in subdivision one of this section before a supreme court or 28 district court judge and upon the motion of the people, the judge shall 29 hold a hearing pursuant to subdivision four of this section and shall 30 issue an order that, pending trial, the individual shall either be 31 released on his or her own recognizance, released on conditions of 32 release as set forth by the judge, or detained under subdivision three 33 of this section. The individual shall be released unless the judge 34 determines that releasing the principal on his or her own recognizance 35 will endanger the safety of any other person or the community but does 36 not find by clear and convincing evidence that no conditions of release 37 will reasonably assure the safety of any other person or the community, 38 the judge shall order the pretrial release of the principal: 39 (i) subject to the condition that the person not commit a federal, 40 state or local crime during the period of release; and 41 (ii) subject to the least restrictive further condition, or combina- 42 tion of conditions, that such judge determines will reasonably assure 43 the safety of any other person and the community that the principal: 44 (A) remain in the custody of a designated person, who agrees to assume 45 supervision and to report any violation of a release condition to the 46 court, if the designated person is reasonably able to assure the judi- 47 cial officer that the person will appear as required and will not pose a 48 danger to the safety of any other person or the community; 49 (B) maintain employment, or, if unemployed, actively seek employment; 50 (C) maintain or commence an educational program; 51 (D) abide by specified restrictions on personal associations, living 52 accommodations or travel; 53 (E) avoid all contact with an alleged victim of the crime and with any 54 potential witness or witnesses who may testify concerning the offense; 55 (F) report on a regular basis to a designated law enforcement agency, 56 pretrial service agency, or other agency;

A. 6688--A 3 1 (G) comply with a specified curfew; 2 (H) refrain from possessing a firearm, destructive device, or other 3 dangerous weapon; 4 (I) refrain from excessive use of alcohol, or any use of a narcotic 5 drug or other controlled substance, without a prescription by a licensed 6 medical practitioner; 7 (J) undergo available medical, psychological, or psychiatric treat- 8 ment, including treatment for drug or alcohol dependency and remain in a 9 specified institution if required for that purpose; 10 (K) return to custody for specified hours following release for 11 employment, schooling, or other limited purposes; 12 (L) satisfy any other condition that is reasonably necessary to assure 13 the appearance of the person as required and to assure the safety of any 14 other person and the community; and 15 (M) participates in a community corrections program under the depart- 16 ment of corrections and community supervision, provided, however, that 17 the principal shall not participate in such program without his or her 18 consent to such participation. 19 (b) The judge shall not impose a financial condition that results in 20 the pretrial detention of the person under this section. 21 (c) The judge may at any time amend the order to impose additional or 22 different conditions of release. 23 3. There shall be a rebuttable presumption of release on recognizance 24 for every principal brought before the court. If, after a hearing 25 pursuant to the provisions of subdivision four of this section, the 26 district or supreme court judge finds by clear and convincing evidence 27 that no conditions of release will reasonably assure the safety of any 28 other person or the community, said judge shall order the detention of 29 the principal prior to trial. A principal detained under this subdivi- 30 sion shall be brought to a trial as soon as reasonably possible, but in 31 absence of extraordinary circumstances, such principal shall not be 32 detained for a period exceeding one hundred twenty days by the district 33 court or for a period exceeding one hundred eighty days by the supreme 34 court. 35 4. (a) When a principal is held under arrest for an offense listed in 36 subdivision one of this section and upon a motion by the people, the 37 judge shall hold a hearing to determine whether conditions of release 38 will reasonably assure the safety of any other person or the community. 39 (b) The hearing shall be held immediately upon the principal's first 40 appearance before the court unless such principal or the people seek a 41 continuance. Except for good cause, a continuance on motion of the prin- 42 cipal shall not exceed seven days and a continuance on motion of the 43 people shall not exceed three business days. During a continuance, the 44 principal shall be detained upon a showing that there existed probable 45 cause to arrest the principal. At the hearing, such principal shall have 46 the right to be represented by counsel, and, if financially unable to 47 retain adequate representation, to have counsel appointed. The principal 48 shall be afforded an opportunity to testify, to present witnesses, to 49 cross-examine witnesses who appear at the hearing, and to present infor- 50 mation. Prior to the summons of an alleged victim, or a member of the 51 alleged victim's family, to appear as a witness at the hearing, the 52 principal shall demonstrate to the court a good faith basis for the 53 principal's reasonable belief that the testimony from the witness will 54 be material and relevant to support a conclusion that there are condi- 55 tions of release that will reasonably assure the safety of any other 56 person or the community. The rules concerning admissibility of evidence

A. 6688--A 4 1 in criminal trials shall not apply to the presentation and consideration 2 of information at the hearing and the judge shall consider hearsay 3 contained in a police report or the statement of an alleged victim or 4 witness. The facts the judge uses to support findings pursuant to subdi- 5 vision three of this section, that no conditions will reasonably assure 6 the safety of any other person or the community, shall be supported by 7 clear and convincing evidence. In a detention order issued pursuant to 8 the provisions of said subdivision three of this section the judge 9 shall: (i) include written findings of fact and a written statement of 10 the reasons for the detention; (ii) direct that the principal be commit- 11 ted to custody or confinement in a corrections facility separate, to the 12 extent practicable, from principals awaiting or serving sentence or 13 being held in custody pending appeal; and (iii) direct that the princi- 14 pal be afforded reasonable opportunity for private consultation with his 15 or her counsel. The principal may be detained pending completion of the 16 hearing. The hearing may be reopened by the judge, at any time before 17 trial, or upon a motion of the people or the principal detained if the 18 judge finds that: (A) information exists that was not known at the time 19 of the hearing or that there has been a change in circumstances; and (B) 20 that such information or change in circumstances has a material bearing 21 on the issue of whether there are conditions of release that will 22 reasonably assure the safety of any other person or the community. 23 5. In his determination as to whether there are conditions of release 24 that will reasonably assure the safety of any other person or the commu- 25 nity, said judge shall, on the basis of any information which he or she 26 can reasonably obtain, take into account the nature and seriousness of 27 the danger posed to any other person or the community that would result 28 by the principal's release, the nature and circumstances of the offense 29 charged, the potential penalty the principal faces, the principal's 30 family ties, employment record and history of mental illness, the prin- 31 cipal's reputation, the risk that the principal will obstruct or attempt 32 to obstruct the judge or threaten, injure or intimidate or attempt to 33 threaten, injure or intimidate a prospective witness or juror, his or 34 her record of convictions, if any, any illegal drug distribution or 35 present drug dependency, and whether the principal is released pending 36 adjudication of a prior charge. 37 6. Nothing in this section shall be construed as modifying or limiting 38 the presumption of innocence. 39 7. (a) A principal aggrieved by the denial of a district court judge 40 to release him or her on his or her own recognizance with or without 41 surety or condition may petition the supreme court for a review of the 42 order of the recognizance and the judge of the district court shall 43 thereupon immediately notify such principal of his or her right to file 44 a petition for review in the supreme court. When a petition for review 45 is filed in the district court or with the detaining authority subse- 46 quent to the petitioner's district court appearance, the clerk of the 47 district court or the detaining authority, as the case may be, shall 48 immediately notify by telephone, the clerk and probation officer of the 49 district court, the district attorney for the district in which the 50 district court is located, the prosecuting officer, the petitioner's 51 counsel, if any, and the clerk of courts of the county to which the 52 petition is to be transmitted. The clerk of the district court, upon the 53 filing of a petition for review, either in the district court or with 54 the detaining authority, shall forthwith transmit the petition for 55 review, a copy of the complaint and the record of the court, including 56 the appearance of the attorney, if any is entered, and a summary of the

A. 6688--A 5 1 court's reasons for denying the release of the principal on his or her 2 own recognizance with or without surety or condition to the supreme 3 court for the county in which the district court is located, if a judge 4 thereof is then sitting, or to the supreme court of the nearest county 5 in which a judge is then sitting. The probation officer of the district 6 court shall transmit forthwith to the probation officer of the supreme 7 court, copies of all records of the probation office of said district 8 court pertaining to the petitioner, including the petitioner's record of 9 prior convictions, if any, as currently verified by inquiry of the 10 commissioner. The district court or the detaining authority, as the case 11 may be, shall cause any petitioner in its custody to be brought before 12 said supreme court within two business days of the petition having been 13 filed. The district court is authorized to order any officer authorized 14 to execute criminal process to transfer the petitioner and any papers 15 herein above described from the district court or the detaining authori- 16 ty to the supreme court, and to coordinate the transfer of the petition- 17 er and the papers by such officer. The petition for review shall consti- 18 tute authority in the person or officer having custody of the petitioner 19 to transport the petitioner to said supreme court without the issuance 20 of any writ or other legal process; provided, however, that any district 21 or supreme court is authorized to issue a writ of habeas corpus for the 22 appearance forthwith of the petitioner before the supreme court. 23 (b) The supreme court shall hear the petition for review as speedily 24 as practicable and in any event within five business days of the filing 25 of the petition. The supreme court judge hearing the review may consider 26 the record below which the people and the principal may supplement. The 27 judge of the supreme court may, after a hearing on the petition for 28 review, order that the petitioner be released on his or her own recogni- 29 zance without surety or condition, or, in his or her discretion, to 30 reasonably assure the effective administration of justice, make any 31 other order of bail or recognizance or remand the petitioner in accord- 32 ance with the terms of the process by which he or she was ordered 33 committed by the district court. 34 8. If after a hearing under subdivision four of this section detention 35 under subdivision three of this section is ordered or pretrial release 36 subject to conditions under subdivision two of this section is ordered, 37 then: (a) the clerk shall immediately notify the probation officer of 38 the order; and (b) the order of detention under subdivision three of 39 this section or order of pretrial release subject to conditions under 40 subdivision two of this section shall be recorded in the principal's 41 criminal record. 42 § 3. This act shall take effect on the first of November next succeed- 43 ing the date on which it shall have become a law and shall apply to all 44 criminal cases where the defendant was arraigned on or after such effec- 45 tive date.

Enacts the Justice for Rachael Act

What's Happening

Why It Matters