Enacts "Jilly's law"; adds criteria for determining whether to issue an order of recognizance or bail; grants court discretion to order a defendant on bail to submit to the use of an electronic monitoring device; allows the court to consider any record of violations of court orders; authorizes the court to consider any history or pattern of threats or violent acts against the alleged victim or towards others; provides that if the court denies bail, it shall place its reasons on the record.
Ayes (53): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Johnson, Kennedy, Klein, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Nozzolio, O'Mara, Peralta, Perkins, Ranzenhofer, Ritchie, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Nays (5): Hassell-Thomps, Krueger, Montgomery, Parker, Rivera
Excused (3): Hannon, Huntley, Oppenheimer
TITLE OF BILL: An act to amend the criminal procedure law, in relation to enacting criteria controlling determination of grant of recognizance or bail
PURPOSE: To give the courts to consider a broader scope of criteria when they are ordering bail for a defendant.
SUMMARY OF PROVISIONS: Section 1 states that this law shall be known as Jilly's Law.
Section 2 amends the criminal procedure law to allow for the court to consider a greater number of facts when setting bail. Paragraph a is amended to include language that would allow the courts to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail. Amends subparagraph (i) to allow the court to consider prior threats of or attempts of suicide. Also amends subparagraph (vi) to allow the court to consider any record of violations of court orders. Adds a subparagraph (ix) that the court may consider any history or pattern of threats or violent acts against the alleged victim, or toward others. Subparagraph (x) allows for any records of protection that were previously issued against the individual, or are currently in effect be considered. Subparagraph (xi) allows for the violent nature of the charged crime to be considered, as well as the impact the crime has had on the alleged victim's family. Subparagraph (xii) states that any other factor deemed to be relevant by the court under the circumstances of the case be considered.
Section 3 adds a subdivision 4 that states that the court may in its discretion order the defendant to use an electronic monitoring device after consideration of the factors specified in paragraph a and that tampering with the device shall constitute grounds for revocation of bail.
Section 4 also adds a subdivision 5 that states that the court may in its discretion deny bail if there is substantial evidence to support the charge and if the court finds clear and convincing evidence that the defendant is not reasonably likely to appear in the court when required, or that the alleged defendant is a danger to the allege victim, members of the community or themselves. This section also states that if bail is denied, the court must place its reasons on the record.
JUSTIFICATION: Currently under New York law, the only factor courts are permitted to consider when setting bail is whether a person charged with a crime will appear in court. This likelihood is based solely on ties to the community, and the likelihood that individual might flee because of the severity of charges brought against them. To that end, courts may consider such factors as the defendant's reputation, criminal record,
and whether he or she has previously failed to appear in court. There is no provision that permits the court to consider the safety of the victim, the nature of the offense, or the impact of the offense on the victim, witnesses, or the victim's family members when determining whether to set bail at all and, if so, in what amount.
New York courts should be permitted to consider such circumstances when setting bail, especially in domestic violence cases where the offender is likely to repeat his or her behavior and ignore restraining orders. An alarming number of women are killed, or attacked in the United States and New York each year by people they have been intimate with. In the United States 32.1 % of all the female murder victims in the country were killed by their husbands or boyfriends. In New York in 2002, 194 women were killed, out of those 66 or 34% were murdered by a spouse, "common law" spouse, or a sexual, or ex-sexual partner.
No case in recent New York history illustrates the need for an amended bail statute more than People v James F. "Jeff" Cahill: In this case Jeff Cahill had viciously attacked his wife Jill with a baseball bat, striking her more then seven times and nearly killing her because Jill was divorcing him. While out on bail for this attack, Jill had requested and been granted an order of protection against Cahill which required him to stay away from Jill and their children. Shortly after his release Cahill began to research ways to poison his wife and eventually was able to secure some potassium cyanide by posing as an employee at a local company. A week before he would murder his wife, Cahill was caught posing as hospital staff in Jill's room. On October 27, 1998 Cahill returned dressed as a janitor and poisoned and killed Jill.
If the court that set bail for Cahill after the baseball bat assault had been permitted to consider the brutal nature of his attack, the resulting injuries, and Jill's safety against future acts of violence by Cahill, Jill might be alive today.
Instead, both the pre and post indictment courts were permitted to apply only the consideration currently addressed by New York State law, whether the defendant is likely to appear in court. Such a limited approach did not protect Jill, and does nothing to protect other individuals in these situations.
LEGISLATIVE HISTORY: S.1401/A.3035 of 2009/2010; Referred to Codes S.112/A.777 of 2007/2008; Passed Senate S.1160/A.275 of 2005/2006; Passed Senate. S.6513/A.10267 of 2003/2004; Passed Senate
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 259 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________Introduced by Sens. MAZIARZ, FLANAGAN, LITTLE, SALAND -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to enacting criteria controlling determination of grant of recognizance or bail THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be cited as "Jilly's law". S 2. Paragraph (a) of subdivision 2 of section 510.30 of the criminal procedure law, subparagraph (v) as amended by chapter 920 of the laws of 1982 and subparagraphs (vi), (vii) and (viii) as renumbered by chapter 447 of the laws of 1977, is amended to read as follows: (a) With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his OR HER court attendance when required AND WHETHER THE PRINCIPAL IS A DANGER TO THE ALLEGED VICTIM IN A CRIMINAL ACTION, MEMBERS OF THE COMMUNITY OR TO HIMSELF OR HERSELF. In determining that matter, the court must, on the basis of available information, consider
[and take into account]: (i) The principal's character, reputation, habits and mental condi- tion, INCLUDING PRIOR THREATS OF OR ATTEMPTS OF SUICIDE; AND (ii) His OR HER employment and financial resources; and (iii) His OR HER family ties and the length of his OR HER residence if any in the community; and (iv) His OR HER criminal record if any; and (v) His OR HER record of previous adjudication as a juvenile delin- quent, 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; andEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01587-01-1 S. 259 2
(vi) His OR HER previous record if any in responding to court appear- ances when required or with respect to flight to avoid criminal prose- cution, OR ANY RECORD OF VIOLATIONS OF COURT ORDERS; and (vii) If he OR SHE is a defendant, the weight of the evidence against him OR HER in the pending criminal action and any other factor indicat- ing probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and (viii) If he OR SHE is a defendant, the sentence which may be or has been imposed upon conviction
[.]; AND (IX) IF HE OR SHE IS A DEFENDANT, ANY HISTORY OR PATTERN OF VIOLENT ACTS OR THREATS OF VIOLENT ACTS AGAINST THE ALLEGED VICTIM IN A CRIMINAL ACTION, OR TOWARD OTHERS; AND (X) IF HE OR SHE IS A DEFENDANT, ANY RECORD OF ANY ORDERS OF PROTECTION THAT WERE PREVIOUSLY ISSUED AGAINST THE PRINCIPAL, OR ARE CURRENTLY IN EFFECT AGAINST THE PRINCIPAL, INCLUDING RECORDS OF ANY VIOLATION OF ANY PROTECTION ORDER; AND (XI) IF HE OR SHE IS A DEFENDANT, THE VIOLENT NATURE OF THE CHARGED CRIME AND THE IMPACT OF THE CRIME ON THE ALLEGED VICTIM; AND (XII) ANY OTHER FACTOR DEEMED TO BE RELEVANT BY THE COURT UNDER THE CIRCUMSTANCES OF THE CASE. S 3. Section 510.30 of the criminal procedure law is amended by adding two new subdivisions 4 and 5 to read as follows: 4. WHERE THE PRINCIPAL IS A DEFENDANT, THE COURT MAY, IN ITS DISCRETION AND AFTER CONSIDERATION OF THE FACTORS SPECIFIED IN PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION, ORDER THAT THE DEFENDANT SUBMIT TO THE USE OF AN ELECTRONIC MONITORING DEVICE UNDER THE SUPERVISION OF THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES WITH THE FURTHER CONDITION THAT TAMPERING WITH SUCH MONITOR SHALL CONSTITUTE GROUNDS FOR REVOCATION OF BAIL. 5. WHERE THE PRINCIPAL IS A DEFENDANT, THE COURT MAY, IN ITS DISCRETION, DENY BAIL IF THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE CHARGE, AND IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT IS NOT REASONABLY LIKELY TO APPEAR IN COURT WHEN REQUIRED OR IS A DANGER TO THE ALLEGED VICTIM, MEMBERS OF THE COMMUNITY OR TO HIMSELF OR HERSELF IF RELEASED ON BAIL. IF BAIL IS DENIED, THE COURT SHALL PLACE ITS REASONS ON THE RECORD. S 4. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.