S6539-2011 - NY Senate Open Legislation - Relates to determinations of applications for recognizance or bail

Amends provisions relating to proceedings for the determination of applications for recognizance or bail based upon the dangerousness of the defendant.

Sponsor: SALAND / Committee: RULES
Law Section: Criminal Procedure Law / Law: Amd S510.30, CP L

S6539-2011 Actions

Jun 21, 2012: COMMITTED TO RULES
Mar 22, 2012: ADVANCED TO THIRD READING
Mar 21, 2012: 2ND REPORT CAL.
Mar 20, 2012: 1ST REPORT CAL.427
Feb 23, 2012: REFERRED TO CODES

S6539-2011 Meetings

Codes: Mar 20, 2012

S6539-2011 Calendars

S6539-2011 Votes

VOTE: COMMITTEE VOTE: - Codes - Mar 20, 2012

Ayes (11): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Squadron
Ayes W/R (3): Duane, Huntley, Perkins
Nays (2): Parker, Espaillat

S6539-2011 Memo

BILL NUMBER:S6539

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.

S6539-2011 Text

 S T A T E   O F   N E W   Y O R K
 
                                          6539
 I N  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.

S6539-2011: Relates to determinations of applications for recognizance or bail