Defines the crimes that would lead a defendant to be categorized as a "person who must be committed to the custody of the sheriff" and as such would not be eligible for release on recognizance or bail except in line with certain mitigating circumstances; sets out procedures for above.
BILL NUMBER: S2608
TITLE OF BILL : An act to amend the criminal procedure law, in relation to denial of recognizance or bail in certain cases
PURPOSE OR GENERAL IDEA OF BILL : This bill would seek to curtail pretrial release on recognizance or bail of persons charged with crimes of violence who have certain prior felony convictions or who are charged with committing a crime of violence while at liberty on recognizance or bail for another felony.
This bill would prohibit the release of persons charged with dangerous felonies where their prior involvement with the criminal justice system furnishes ample evidence of the fact that the present charge is not an isolated incident of serious involvement In effect, it would strike 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 pretrial release matters.
SUMMARY OF SPECIFIC PROVISIONS : This bill amends the recognizance and bail articles of the Criminal Procedure Law. It adds a new definition, "person who must be committed to the custody of the sheriff", to establish the criteria for prohibition of bail or recognizance.
These criteria consist of two basic factors: (1) a crime of violence; and (2) prior serious involvement with the criminal justice system.
The crimes covered are as follows:
* Murder first or second degree * Kidnapping first or second degree * Arson first or second degree * Aggravated assault upon a police officer or a peace officer * Criminal use of a firearm in the first or second degree * Rape or sodomy first degree * Robbery or burglary first degree * Robbery or burglary second degree (certain cases) * Manslaughter first degree
The prior involvement criteria are:
* Prior conviction of any of the above * Prior conviction of any other felony committed within previous five years * On recognizance or bail for a felony at time one of the above crimes was committed
Where these criteria are present a local criminal court cannot grant release on bail or recognizance. A defendant may, however, apply to a county court judge or supreme court justice who will have the authority to consider granting release if he finds one or more of the following factors:
* Mitigating circumstances that bear directly upon the manner in which the crime was committed * No serious harm was cause or threatened * Where the defendant was not the sole participant in the crime, his participation was relatively minor
The court would have discretion to conduct a hearing and, if the court does not grant release, the court would be required to specify the reason for its decision publicly on the record.
A superior court also would be permitted to consider release of the defendant if the prosecution fails to adhere to a stepped up timetable for trial as specified in the new law. Thus, if an opportunity for trial is not afforded the defendant within sixty days from the date of arrest, a county or supreme court may grant recognizance or bail in its discretion in accordance with the criteria it ordinarily would utilize. The sixty day period would, of course, be computed after excluding delays encountered by actions or motions on the part of the defendant There also is a provision that permits release if the people do not at any time proceed with due diligence and are unable to show good cause for such failure, but good cause will not include. shortage of judicial or nonjudicial personnel or shortage of courtroom availability. Here too, the court would have the power to take evidence and the court would be required to specify the reasons for its decision to release on the public record.
In connection with the above noted stepped up time schedule, it is relevant to observe that the criteria are not the same as the present speedy trial ready rule which would remain unchanged by this bill. That rule (Criminal Procedure Law, §30.30) requires that a defendant be released on bail or recognizance if the people are not ready for trial within 90 days, but it does not apply where the reason for delay is lack of court resources.
JUSTIFICATION : Although no precise records are available it is well known that a substantial portion of crime is attributable to persons with prior felony convictions and persons who are at liberty on bail or recognizance awaiting trial on a previous accusation.
Some reports have noted that 80% of all persons convicted of robbery have at least one prior felony arrest. In addition, one study revealed that in a given year, more than 2,000 persons arrested in New York City for new crimes were already wanted under bench warrants issued for absconding from recognizance or bail granted on a prior felony charge. This does not include the number arrested for new crimes before absconder warrants were issued on previous pending cases or the number who were not yet apprehended.
In cases where studies have been made the results have been characterized as "startling". In his successful move to have the U.S. Senate incorporate the concept of "danger to the community" as a factor in Federal pretrial release, Senator Dole observed (Congressional Record, 1-23-78,S.282): "Several academic studies of the continuing criminal habits of persons granted pretrial release have revealed startling conclusions. The institute for law and social research found that 26 percent of all felonies committed in the District of Columbia were committed by a person on some form of conditional release, Defendants have rights and those rights should be jealously guarded. But the public has rights too".
The courts, as well as the public, are looking to the legislature for an expression of State policy. It is not sufficient or even honorable to continue to express that policy through ad hoc criticism of judicial bail decisions which are made without legislative guidance. Since our highest court has repeatedly indicated that the denial of bail in a felony case is not unconstitutional, and that the question of when bail should be granted is a matter left to the Legislature, it seems clear that public protection requires the Legislature to squarely face the issue (see PEOPLE EX REL. SHAPIRO V. KEEPER OF CITY PRISON, ET AL 290 NY 393 (1943); PEOPLE EX REL. KLEIN V. KRUGER, 25 NY2d 497 (1969)).
The legislative responsibility must be met. Public safety cries out for action now.
PRIOR LEGISLATIVE HISTORY : 1999/00: A.5568 Referred to Codes Committee. 2001/02: A.6295 Referred to Codes Committee. 2003/04: A.5700 Referred to Codes Committee. 2005/06: A.4722 Held for consideration in Codes. 2007: S.4417 Passed Senate/A.4566 Assembly Codes Cmte. 2008: S.4417 Senate Codes Cmte/A.4566 Assembly Codes Cmte.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : Additional court parts and ancillary services (prosecutorial and defense) would be needed to provide more prompt opportunities for trial. Additional detention space would also have to be made available in certain places. However, New York City, for example, appears to have available vacant spaces at the present time that might be used for detention.
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 ________________________________________________________________________ 2608 2009-2010 Regular Sessions IN SENATE February 25, 2009 ___________Introduced by Sens. FLANAGAN, ALESI, GOLDEN, LIBOUS, MAZIARZ, MORAHAN, PADAVAN, SEWARD, SKELOS, VOLKER -- 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 denial of recognizance or bail in certain cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 500.10 of the criminal procedure law is amended by adding a new subdivision 21 to read as follows: 21. "PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF" MEANS A PERSON WHO: (A) IS CHARGED BY FELONY COMPLAINT OR INDICTMENT WITH ONE OR MORE OF THE FOLLOWING CRIMES. MURDER IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, ARSON IN THE FIRST DEGREE, ARSON IN THE SECOND DEGREE, AGGRA- VATED ASSAULT UPON A POLICE OFFICER OR A PEACE OFFICER, CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE, CRIMINAL USE OF A FIREARM IN THE SECOND DEGREE, RAPE IN THE FIRST DEGREE, SODOMY IN THE FIRST DEGREE, ATTEMPT TO COMMIT ANY OF THE FOREGOING CRIMES, MANSLAUGHTER IN THE FIRST DEGREE, ROBBERY IN THE FIRST DEGREE, BURGLARY IN THE FIRST DEGREE, ROBBERY IN THE SECOND DEGREE AS DEFINED BY SUBDIVISION TWO OF SECTION 160.10 OF THE PENAL LAW, OR BURGLARY IN THE SECOND DEGREE AS DEFINED BY SUBDIVISION ONE OF SECTION 140.25 OF THE PENAL LAW; AND (B) EITHER (I) PREVIOUSLY HAS BEEN CONVICTED OF ONE OR MORE OF THE CRIMES SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION, OR (II) PREVIOUS- LY HAS BEEN CONVICTED OF ANY FELONY IN THIS STATE, OR ANY OFFENSE COMMITTED IN ANOTHER JURISDICTION THAT WOULD BE A FELONY IF COMMITTED IN THIS STATE, PROVIDED SUCH CRIME WAS COMMITTED WITHIN FIVE YEARS PRECED- ING THE DATE THE CRIME FOR WHICH A SECURING ORDER IS TO BE MADE IS ALLEGED TO HAVE BEEN COMMITTED, OR (III) IS SUBJECT TO AN ORDER OF RECOGNIZANCE OR BAIL MADE BY A COURT OF THIS STATE IN THE COURSE OF ANOTHER CRIMINAL ACTION BASED UPON A CHARGE OF FELONY, OR HAD ESCAPEDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06537-01-9 S. 2608 2
FROM A DETENTION FACILITY IN THIS STATE, AND THE CRIME PRESENTLY CHARGED IS ALLEGED TO HAVE BEEN COMMITTED WHILE THE DEFENDANT WAS AT LIBERTY PURSUANT TO SUCH ORDER OR AS A RESULT OF SUCH ESCAPE. S 2. Section 510.20 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows: 3. WHERE IT APPEARS THAT A DEFENDANT IS A PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF AS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE, THE DEFENDANT MUST BE GIVEN AN OPPORTUNITY TO BE HEARD FOR THE PURPOSE OF CONTROVERTING ANY FACTOR SPECIFIED IN PARAGRAPH (B) OF SUCH SUBDIVISION RELIED UPON TO SUPPORT SUCH APPEAR- ANCE. IF THE DEFENDANT DOES CONTEST ANY SUCH FACTOR, THE BURDEN OF PROOF SHALL BE UPON THE PEOPLE TO PROVE THE CONTESTED FACTOR BY A PREPONDER- ANCE OF THE EVIDENCE AND THE COURT MAY RECEIVE ANY RELEVANT EVIDENCE NOT LEGALLY PRIVILEGED. FOR THE PURPOSES OF ANY SUCH HEARING THE DATE SHOWN ON THE FINGERPRINT REPORT AS THE DATE OF ARREST FOR A PRIOR CRIME SHALL BE DEEMED PRIMA FACIE EVIDENCE OF THE DATE ON WHICH THAT CRIME WAS COMMITTED. S 3. Subdivision 3 of section 510.30 of the criminal procedure law is renumbered subdivision 4 and a new subdivision 3 is added to read as follows: 3. (A) WHERE AN APPLICATION FOR RECOGNIZANCE OR BAIL HAS BEEN DENIED SOLELY ON THE GROUND THAT THE DEFENDANT IS A PERSON WHO MUST BE COMMIT- TED TO THE CUSTODY OF THE SHERIFF, AS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE, AN APPLICATION FOR RECOGNIZANCE OR BAIL MAY BE GRANTED BY A JUDGE OF A SUPERIOR COURT PURSUANT TO SECTION 530.30 OF THIS CHAPTER IF THE DEFENDANT HAS NOT BEEN INDICTED, OR PURSUANT TO SECTION 530.40 OF THIS TITLE IF AN INDICTMENT HAS BEEN FILED, IN ANY CASE WHERE THE COURT DETERMINES THAT: (I) AN ORDER OF RECOGNIZANCE OR BAIL SHOULD BE ISSUED PURSUANT TO SUBDIVISION TWO OF THIS SECTION; AND (II) THE RELEASE OF THE DEFENDANT IS IN FURTHERANCE OF THE INTERESTS OF JUSTICE BASED SOLELY UPON ONE OR MORE OF THE FOLLOWING FACTORS: (1) MITIGATING CIRCUMSTANCES THAT BEAR DIRECTLY UPON THE MANNER IN WHICH THE PRESENT CRIME WAS COMMITTED; (2) NO SERIOUS HARM WAS CAUSED OR THREAT- ENED BY THE PRESENT CRIME; (3) WHERE THE DEFENDANT WAS NOT THE SOLE PARTICIPANT IN THE PRESENT CRIME, THE DEFENDANT'S PARTICIPATION WAS RELATIVELY MINOR, ALTHOUGH NOT SO MINOR AS TO CONSTITUTE A DEFENSE TO THE PROSECUTION; OR (III) THE DEFENDANT HAS NOT BEEN AFFORDED AN OPPORTUNITY FOR TRIAL WITHIN SIXTY DAYS FROM THE DATE OF ARREST COMPUTED AFTER EXCLUDING THE NUMBER OF DAYS THE CRIMINAL PROCEEDING HAS BEEN DELAYED PURSUANT TO REQUEST OR CONSENT OR THE CONDITION OF THE DEFENDANT OR BY REASON OF MOTIONS MADE OR OTHER ACTION ON THE PART OF THE DEFENDANT; OR (IV) THE PEOPLE HAVE NOT PROCEEDED WITH DUE DILIGENCE AT ANY STAGE OF THE CRIMINAL ACTION AND THE PEOPLE ARE UNABLE TO SHOW GOOD CAUSE FOR SUCH FAILURE TO PROCEED, BUT GOOD CAUSE FOR THE PURPOSE OF SUCH SHOWING SHALL NOT INCLUDE THE LACK OF JUDICIAL OR NONJUDICIAL PERSONNEL OR THE LACK OF AN AVAILABLE COURTROOM OR ADEQUATE PROSECUTORIAL STAFF. (B) IF THE COURT DETERMINES TO GRANT AN ORDER OF RECOGNIZANCE OR BAIL PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, IT SHALL STATE ON THE RECORD THE FACTORS UPON WHICH ITS DETERMINATION IS BASED AND THE COURT SHALL GIVE ITS REASONS IN DETAIL, NOT IN CONCLUSORY TERMS. (C) FOR THE PURPOSE OF MAKING A DETERMINATION PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, THE COURT MAY MAKE SUCH INQUIRY AS IT DEEMS NECESSARY. ANY EVIDENCE WHICH IS NOT LEGALLY PRIVILEGED MAY BE INTRO- DUCED. IF THE DEFENDANT TESTIFIES, HIS OR HER TESTIMONY MAY NOT BES. 2608 3
INTRODUCED AGAINST HIM OR HER ON THE TRIAL OF ANY CRIME ARISING OUT OF THE CRIMINAL TRANSACTION UPON WHICH THE PENDING CHARGE IS BASED, EXCEPT TO IMPEACH HIS OR HER TESTIMONY AT SUCH TRIAL AS INCONSISTENT WITH PRIOR TESTIMONY. S 4. Section 530.10 of the criminal procedure law is amended to read as follows: S 530.10 Order of recognizance or bail; in general. Under circumstances prescribed in this article, a court, upon applica- tion of a defendant charged with or convicted of an offense, is required or authorized to order OR TO DENY bail or recognizance for the release or prospective release of such defendant during the pendency of either: 1. A criminal action based upon such charge; or 2. An appeal taken by the defendant from a judgment of conviction or a sentence or from an order of an intermediate appellate court affirming or modifying a judgment of conviction or a sentence. S 5. Section 530.20 of the criminal procedure law, as amended by chap- ter 531 of the laws of 1975, subparagraph (ii) of paragraph (b) of subdivision 2 as amended by chapter 218 of the laws of 1979, is amended to read as follows: S 530.20 Order of recognizance or bail; by local criminal court when action is pending therein. When a criminal action is pending in a local criminal court, such court, upon application of a defendant, must or may order recognizance or bail as follows: 1. When the defendant is charged, by information, simplified informa- tion, prosecutor's information or misdemeanor complaint, with an offense or offenses of less than felony grade only, the court must order recog- nizance or bail. 2. When the defendant is charged, by felony complaint, with a felony, the court may, in its discretion, order OR DENY recognizance or bail except as otherwise provided in this subdivision: (a) A city court, a town court or a village court may not order recognizance or bail when (i) the defendant is charged with a class A felony, or (ii) THE DEFENDANT IS CHARGED WITH THE CRIME OF AGGRAVATED ASSAULT UPON A POLICE OFFICER OR A PEACE OFFICER, OR (III) it appears that the defendant has two previous felony convictions; (b) NO LOCAL CRIMINAL COURT MAY ORDER RECOGNIZANCE OR BAIL WHEN IT APPEARS THAT THE DEFENDANT IS A PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF AS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE. (C) No local criminal court may order recognizance or bail with respect to a defendant charged with a felony unless and until: (i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwise waived his right to do so; and (ii) The court has been furnished with a report of the division of criminal justice services concerning the defendant's criminal record if any or with a police department report with respect to the defendant's prior arrest record. If neither report is available, the court, with the consent of the district attorney, may dispense with this require- ment; provided, however, that in an emergency, including but not limited to a substantial impairment in the ability of such division or police department to timely furnish such report, such consent shall not be required if, for reasons stated on the record, the court deems it unnec- essary. When the court has been furnished with any such report orS. 2608 4
record, it shall furnish a copy thereof to counsel for the defendant or, if the defendant is not represented by counsel, to the defendant. 3. WHERE A LOCAL CRIMINAL COURT LACKS AUTHORITY TO ORDER RECOGNIZANCE OR BAIL BY REASON OF THE FACT THAT IT APPEARS THE DEFENDANT IS A PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF, AS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE AND AFTER A HEAR- ING FINDS THERE IS REASONABLE CAUSE TO BELIEVE THE DEFENDANT COMMITTED A FELONY BUT THERE IS NOT REASONABLE CAUSE TO BELIEVE THE DEFENDANT COMMITTED ONE OF THE CRIMES SPECIFIED IN PARAGRAPH (A) OF SUCH SUBDIVI- SION, THE COURT SHALL CONVERT THE FELONY COMPLAINT INTO ONE THAT DOES NOT CHARGE A CRIME SPECIFIED IN SUCH PARAGRAPH BY MAKING APPROPRIATE NOTATIONS UPON OR ATTACHED THERETO AND THE COURT MAY THEN PROCEED TO DETERMINE AN APPLICATION FOR BAIL OR RECOGNIZANCE IN THE SAME MANNER AND IN ACCORDANCE WITH THE SAME CRITERIA AS IT WOULD WITH RESPECT TO A DEFENDANT OTHER THAN ONE WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF. S 6. Section 530.30 of the criminal procedure law, subdivision 2 as amended by chapter 762 of the laws of 1971, is amended to read as follows: S 530.30 Order of recognizance or bail; by superior court judge when action is pending in local criminal court. 1.
[When]EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, WHEN a criminal action is pending in a local criminal court, other than one consisting of a superior court judge sitting as such, a judge of a supe- rior court holding a term thereof in the county, upon application of a defendant, may order recognizance or bail when such local criminal court: (a) Lacks authority to issue such an order, pursuant to paragraph (a) of subdivision two of section 530.20 OF THIS ARTICLE; or (b) Has denied an application for recognizance or bail; or (c) Has fixed bail which is excessive. In such case, such superior court judge may vacate the order of such local criminal court and release the defendant on his own recognizance or fix bail in a lesser amount or in a less burdensome form. 2. WHEN A CRIMINAL ACTION IS PENDING IN A LOCAL CRIMINAL COURT AND SUCH COURT LACKS AUTHORITY TO ORDER RECOGNIZANCE OR BAIL PURSUANT TO PARAGRAPH (B) OF SUBDIVISION TWO OF SECTION 530.20 OF THIS ARTICLE BY REASON OF THE FACT THAT IT APPEARS THAT THE DEFENDANT IS A PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF AS DEFINED IN SUBDIVI- SION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE, A JUDGE OF A SUPERIOR COURT HOLDING A TERM THEREOF IN THE COUNTY, UPON APPLICATION OF A DEFENDANT, MAY ORDER RECOGNIZANCE OR BAIL, BUT ONLY IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION THREE OF SECTION 510.30 OF THIS TITLE. 3. Notwithstanding the provisions of [subdivision]SUBDIVISIONS one AND TWO OF THIS SECTION, when the defendant is charged with a felony in a local criminal court, a superior court judge may not order recogni- zance or bail unless and until the district attorney has had an opportu- nity to be heard in the matter and such judge has been furnished with a report as described in subparagraph (ii) of paragraph [(b)](C) of subdivision two of section 530.20 OF THIS ARTICLE. 4. Not more than one application may be made pursuant to this section. S 7. Subdivision 4 of section 530.40 of the criminal procedure law, as amended by chapter 762 of the laws of 1971, is amended and a new subdi- vision 5 is added to read as follows:S. 2608 5
4. Notwithstanding the provisions of subdivision two OF THIS SECTION, a superior court may not order recognizance or bail when the defendant is charged with a felony unless and until the district attorney has had an opportunity to be heard in the matter and such court has been furnished with a report as described in subparagraph (ii) of paragraph
[(b)](C) of subdivision two of section 530.20 OF THIS ARTICLE. 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION, A SUPERIOR COURT MAY NOT ORDER RECOGNIZANCE OR BAIL WHEN IT APPEARS THAT THE DEFENDANT IS A PERSON WHO MUST BE COMMITTED TO THE CUSTODY OF THE SHERIFF AS DEFINED IN SUBDIVISION TWENTY-ONE OF SECTION 500.10 OF THIS TITLE UNLESS IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION THREE OF SECTION 510.30 OF THIS TITLE. S 8. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.