Amends provisions relating to proceedings for the determination of applications for recognizance or bail based upon the dangerousness of the defendant.
TITLE OF BILL: An act to amend the criminal procedure law, in relation to determinations of applications for recognizance or bail
PURPOSE: The bill protects victims and other persons from dangerous defendants by expanding criminal procedure law section 510.30. The bill requires the court, when determining recognizance or bail in certain cases to consider the potential for dangerousness of the defendant and determine whether there are any conditions of bailor recognizance that would ameliorate such dangerousness of the defendant to victims or other persons. If there are not any such conditions the court must remand the defendant.
SUMMARY OF PROVISIONS: Section one re-letters paragraph (b) as paragraph (c) of subdivision 2 of section 510.30 of the criminal procedure law and adds a new paragraph (b) This new paragraph requires the court, when the defendant is charged with certain crimes to hold a hearing to determine whether the defendant is too dangerous to be release from custody during the pendency of a criminal case. In any case where the defendant is charge with a felony offense where force is an element of the crime or if the defendant is charge with a violation of a court order or the defendant is charged with felony weapon possession, the court must hold a hearing and consider certain factors in whether any conditions exist for bailor recognizance that will assure the safety of the victim or other persons
Such factors include nature and seriousness of the danger posed to any person that would result by the person's release, the nature and circumstances of the offense charged, the potential penalty the person faces, the person's family ties, employment record and history of mental illness, his reputation, the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror, his record of convictions, if any, any illegal drug distribution or present drug dependency, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve family offense, or violation of a temporary or permanent order issued by any court, whether the person has any history of orders issued against him, whether he is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction.
If after such hearing the court finds by clear and convincing evidence that there are no conditions of bail or recognizance that would assure the safety of the victim or any other person or witness then the court must remand the defendant.
Section two defines the effective date as the first of November following the date on which it shall become law.
JUSTIFICATION: When a defendant is facing charges for serious felony offenses there is often more danger for the victim, witness or other persons from the defendant than before the crime occurred. Defendants facing long sentences for serious felonies must be evaluated by the court to determine whether they pose a threat to witnesses, any other persons or the victim in the case. Violence during a pending criminal justice intervention is a societal problem of enormous prevalence and impact. New York State should be in the forefront of addressing this problem by passing progressive laws that take into account the unique nature of potential dangerousness of a defendant facing serious felony charges and updating New York's Bail statue to address these dangers.
If judges determining recognizance and bail in serious felony cases involving violence were required to consider well established risk factors to the victim, many victims would be spared additional harm and, in some tragic incidences, their lives.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 6539 IN SENATE February 23, 2012 ___________Introduced by Sen. 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 determi- nations of applications for recognizance or bail THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (b) of subdivision 2 of section 510.30 of the criminal procedure law is relettered paragraph (c) and a new paragraph (b) is added to read as follows: (B) (I) WITH RESPECT TO ANY PRINCIPAL, THE DISTRICT ATTORNEY MAY MOVE, BASED ON DANGEROUSNESS, FOR A SECURING ORDER REMANDING A PRINCIPAL TO THE CUSTODY OF THE SHERIFF; OR AN ORDER RELEASING THE PRINCIPAL UPON FIXING OF BAIL WITH CERTAIN CONDITIONS AS SET FORTH IN THIS PARAGRAPH; OR AN ORDER RELEASING THE PRINCIPAL ON HIS OR HER OWN RECOGNIZANCE WITH CONDITIONS AS SET FORTH IN THIS PARAGRAPH, WHERE THE DEFENDANT IS CHARGED WITH: (1) A FELONY OFFENSE AN ELEMENT OF WHICH IS THE USE, ATTEMPTED USE OR THREATENED USE OF PHYSICAL FORCE AGAINST ANOTHER OR ANY OTHER FELONY THAT, BY ITS NATURE, INVOLVES A SUBSTANTIAL RISK THAT PHYS- ICAL FORCE AGAINST THE PERSON OF ANOTHER MAY RESULT, WHETHER OR NOT A PERSON HAS BEEN PLACED AT RISK THEREOF; (2) A VIOLATION OF A COURT ORDER OR ORDER OF PROTECTION ISSUED PURSUANT TO SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW, OR SECTION FIVE HUNDRED FIFTY, FIVE HUNDRED FIFTY-ONE, SIX HUNDRED FIFTY-FIVE OR SIX HUNDRED FIFTY-SEVEN OF THE FAMILY COURT ACT OR SECTION 530.12 OR 530.13 OF THIS CHAPTER; OR (3) CHARGED WITH A VIOLATION OF SECTION 265.02, 265.03 OR 265.04 OF THE PENAL LAW. (II) UPON THE FIRST APPEARANCE BEFORE THE COURT OF A DEFENDANT CHARGED WITH AN OFFENSE LISTED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE COURT SHALL HOLD A HEARING AND DETERMINE WHETHER (1) A SECURING ORDER REMAND- ING THE DEFENDANT TO THE CUSTODY OF THE SHERIFF IS NECESSARY, OR (2) WHETHER TO ISSUE AN ORDER RELEASING THE DEFENDANT ON HIS OR HER OWN RECOGNIZANCE, OR (3) FIXING BAIL WITH THE CONDITIONS OF SUCH RECOGNI- ZANCE OR BAIL AS SET FORTH HEREIN.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13959-02-2 S. 6539 2
(III) THE COURT SHALL DETERMINE IF ANY CONDITIONS OF RELEASE WILL REASONABLY ASSURE THE SAFETY OF THE COMPLAINANT OR ANY OTHER PERSON. (1) THE HEARING SHALL BE HELD UPON THE DEFENDANT'S FIRST APPEARANCE BEFORE THE COURT PROVIDED THAT THE DISTRICT ATTORNEY IS PRESENT AT SUCH APPEARANCE, OR NO LATER THAN THREE BUSINESS DAYS AFTER THE DEFENDANT'S FIRST APPEARANCE UPON NOTICE BY THE COURT TO THE DISTRICT ATTORNEY OF SUCH FIRST APPEARANCE. THE DEFENDANT SHALL REMAIN IN CUSTODY UNTIL SUCH HEARING IS HELD. EXCEPT FOR GOOD CAUSE SHOWN, AN ADJOURNMENT BY THE DEFENDANT MAY NOT EXCEED SEVEN DAYS. DURING ANY SUCH ADJOURNMENT THE DEFENDANT SHALL REMAIN IN THE CUSTODY OF THE SHERIFF. (2) AT THE HEARING, THE DEFENDANT SHALL HAVE THE RIGHT TO BE REPRES- ENTED BY COUNSEL, AND, IF FINANCIALLY UNABLE TO RETAIN ADEQUATE REPRE- SENTATION, TO HAVE COUNSEL APPOINTED. THE DEFENDANT SHALL BE AFFORDED AN OPPORTUNITY TO TESTIFY, TO PRESENT WITNESSES, TO CROSS-EXAMINE WITNESSES WHO APPEAR AT THE HEARING, AND TO PRESENT EVIDENCE. THE RULES OF EVIDENCE APPLICABLE TO CRIMINAL PRE-TRIAL HEARINGS SHALL BE APPLICABLE TO SUCH HEARING. (IV) IN THE DETERMINATION AS TO THE DANGEROUSNESS OF THE DEFENDANT AND WHETHER THERE ARE CONDITIONS OF RELEASE THAT WILL REASONABLY ASSURE THE SAFETY OF THE COMPLAINANT OR ANY OTHER INDIVIDUAL THE COURT SHALL CONSIDER AND TAKE INTO ACCOUNT: (1) THE NATURE AND SERIOUSNESS OF THE DANGER POSED TO ANY PERSON THAT WOULD RESULT BY THE PERSON'S RELEASE; (2) THE NATURE AND CIRCUMSTANCES OF THE OFFENSE CHARGED; (3) THE POTEN- TIAL PENALTY THE PERSON FACES; (4) THE PERSON'S EMPLOYMENT RECORD AND HISTORY OF MENTAL ILLNESS; (5) THE RISK THAT THE PERSON WILL OBSTRUCT OR ATTEMPT TO OBSTRUCT THE COURT OR THREATEN, INJURE OR INTIMIDATE OR ATTEMPT TO THREATEN, INJURE OR INTIMIDATE A PROSPECTIVE WITNESS OR JUROR; (6) HIS OR HER RECORD OF CONVICTIONS, IF ANY; (7) ANY ILLEGAL DRUG DISTRIBUTION OR PRESENT DRUG DEPENDENCY; (8) WHETHER THE PERSON IS ON BAIL PENDING ADJUDICATION OF A PRIOR CHARGE; (9) WHETHER THE ACTS ALLEGED INVOLVE A FAMILY OFFENSE AS DEFINED IN SECTION 530.11 OF THIS TITLE OR A VIOLATION OF A TEMPORARY OR PERMANENT ORDER OF PROTECTION OR WHETHER THE PERSON HAS ANY HISTORY OF ORDERS ISSUED AGAINST HIM OR HER; (10) WHETHER HE OR SHE IS ON PROBATION, PAROLE OR OTHER RELEASE PENDING COMPLETION OF SENTENCE FOR ANY CONVICTION AND WHETHER HE OR SHE IS ON RELEASE PENDING SENTENCE OR APPEAL FOR ANY CONVICTIONS; AND ANY OTHER INFORMATION THE COURT FINDS RELEVANT AND PROBATIVE ON THE ISSUE OF THE DANGEROUSNESS OF THE PRINCIPAL. (V) IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE THAT NO CONDI- TIONS OF BAIL OR RELEASE WILL REASONABLY ASSURE THE SAFETY OF THE COMPLAINANT OR ANY OTHER PERSON, THE COURT SHALL DIRECT THAT THE PERSON BE COMMITTED TO CUSTODY OF THE SHERIFF. THE HEARING MAY BE REOPENED BEFORE OR AFTER A DETERMINATION BY THE COURT AT ANY TIME BEFORE TRIAL IF THE COURT FINDS THAT INFORMATION EXISTS THAT WAS NOT KNOWN AT THE TIME OF THE HEARING AND THAT HAS A MATERIAL BEARING ON THE ISSUE AND WHETHER THERE ARE CONDITIONS OF RELEASE THAT WILL REASONABLY ASSURE THE SAFETY OF THE COMPLAINANT OR ANY OTHER PERSON. S 2. This act shall take effect immediately.