End Bail, Allow Pretrial Detention

Section 1. Subparagraph (viii) of paragraph (b) of subdivision 1 of section 150.20 of the criminal procedure law, as added by section 1-a of part JJJ of chapter 59 of the laws of 2019, is amended and a new subparagraph (ix) is added, to read as follows:

(viii) it reasonably appears to the officer, based on the observed behavior of the individual in the present contact with the officer and facts regarding the person's condition that indicates a sign of distress to such a degree that the person would face harm without immediate medical or mental health care, that bringing the person before the court would be in such person's interest in addressing that need; provided, however, that before making the arrest, the officer shall make all reasonable efforts to assist the person in securing appropriate services[.]; and

(ix) the person is unlikely to return to court on the return date of an appearance ticket for reasons specific to the facts of the case that the officer can articulate in the information or misdemeanor complaint. These reasons cannot rely solely on the defendant's prior criminal history or place of residence.

§ 2. Subdivisions 3-a, 4 and 5 of section 500.10 of the criminal procedure law, subdivision 3-a as added and subdivisions 4 and 5 as amended by section 1-e of part JJJ of chapter 59 of the laws of 2019, are amended and a new subdivision 6-a is added to read as follows:

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

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

[ ] is old law to be omitted.

LBD14721-02-0

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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, specified restrictions on travel that are reasonably related to an actual risk of 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 nonmonetary 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] three 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 the principal's person, it orders that the principal be confined in the custody of the sheriff [during the pendency of the criminal action or proceeding involved] pending the outcome of a hearing under article five hundred forty-five of this title, as to whether the individual shall be ordered into pretrial detention.

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 the principal on the principal's own recognizance or releasing the principal under non-monetary conditions] that either releases a principal under personal recognizance, or releases the principal under non-monetary conditions, all with the direction that the principal return to the court for future court appearances and be at all times amenable to the orders and processes of the court.

6-a. "Pretrial detention." A county or superior court may commit a principal to pretrial detention if, after a hearing and making such findings as specified in article five hundred forty-five of this title, a judge so orders detention.

§ 3. Subdivisions 21 and 22 of section 500.10 of the criminal procedure law are REPEALED.

§ 4. Subdivision 1 of section 510.10 of the criminal procedure law, as amended by section 2 of part JJJ of chapter 59 of the laws of 2019, is amended and a new subdivision 1-a is added to read as follows:

1. When a principal, whose future court attendance at a criminal action or proceeding is or may be required, comes under the control of a court, such court shall, in accordance with this title, by a securing order release the principal on the principal's own recognizance, release the principal under non-monetary conditions, [or, where authorized, fix bail] or commit 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 poses a

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risk of flight to avoid prosecution or the court finds that release on recognizance will not reasonably assure the individual's court attendance. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal's return to court. The court shall explain its choice of release, release with conditions[, bail] or remand on the record or in writing.

1-a. Notwithstanding subdivision one of this section, in cases where the people indicate that they intend to move for pretrial detention as set forth in article five hundred forty-five of this title, the court may commit the defendant to the custody of the sheriff or issue a security order in accordance with article five hundred forty-five of this title.

§ 5. Subdivisions 3, 4 and 5 of section 510.10 of the criminal procedure law are REPEALED and subdivision 6 is renumbered subdivision 3.

§ 6. Section 510.20 of the criminal procedure law, as amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is amended to read as follows: § 510.20 Application for a change in securing order based on a material

change in circumstances.

1. Upon any occasion when a court has issued a securing order with respect to a principal and the principal is confined in the custody of the sheriff as a result of the securing order or a previously issued securing order, the principal may make an application for recognizance, release under non-monetary conditions [or bail]. Upon any occasion when a court has issued a securing order with respect to the principal, the principal or other people may make an application for a different securing order due to a material change in circumstances.

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 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.

(c) Upon such application, the people must be accorded an opportunity to be heard, present evidence and to contend that a different securing order must or should issue because, due to a material change in circumstances, the current order is either too restrictive or not restrictive enough to reasonably ensure a principal's appearance in court. In acting upon such an application, the court shall select the least restrictive alternative that will reasonably ensure a court appearance.

§ 7. Section 510.30 of the criminal procedure law, as amended by section 5 of part JJJ of chapter 59 of the laws of 2019, is amended to read as follows: § 510.30 Application for securing order; rules of law and criteria

controlling determination.

1. With respect to any principal, the court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal's return to court when required. In determining that matter, the court must, on the basis of available information, consider and take

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into account information about the principal that is relevant to the principal's return to court, including:

(a) [The] Information about the principal's activities [and], history and community ties that is relevant to court appearance;

(b) If the principal is a defendant, the charges facing the principal;

(c) The principal's criminal conviction record if any; provided that the court must also consider the time that has elapsed since the occurrence of the crime and the age of the principal at the time of the occurrence of such delinquent or youthful offender conduct;

(d) The principal's record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any;

(e) The principal's previous record, if any, responding to court appearances when required or with respect to flight to avoid criminal prosecution;

(f) [If monetary bail is authorized, according to the restrictions set forth in this title, the principal's individual financial circumstances, and, in cases where bail is authorized, the principal's ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;

(g)] Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, the following factors:

(i) any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title, whether or not such order of protection is currently in effect; and

(ii) the principal's history of use or possession of a firearm; [and

(h)] (g) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal[.]; and

(h) If the principal is a defendant, the sentence which may be or has been imposed upon conviction.

2. Where the principal is a defendant-appellant in a pending appeal from a judgment of conviction, the court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in subdivision one of this section.

[3. When bail or recognizance is ordered, the court shall inform the principal, if the principal is a defendant charged with the commission of a felony, that the release is conditional and that the court may revoke the order of release and may be authorized to commit the principal to the custody of the sheriff in accordance with the provisions of subdivision two of section 530.60 of this chapter if the principal commits a subsequent felony while at liberty upon such order.]

§ 8. Section 510.40 of the criminal procedure law, as amended by section 6 of part JJJ of chapter 59 of the laws of 2019, is amended to read as follows: § 510.40 Court notification to principal of conditions of release and of

alleged violations of conditions of release.

1. Upon ordering that a principal be released on the principal's own recognizance, or released under non-monetary conditions[, or, if bail

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has been fixed, upon the posting of bail,] the court must direct the principal to appear in the criminal action or proceeding involved whenever the principal's attendance may be required and to be at all times amenable to the orders and processes of the court. If [such principal is in the custody of the sheriff or at liberty upon bail at the time of the order, the court must direct that the principal be discharged from such custody or, as the case may be, that the principal's bail be exonerated] the principal is a defendant, the court shall also direct the defendant not to commit a crime while at liberty upon the court's securing order.