S T A T E O F N E W Y O R K
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6799
2013-2014 Regular Sessions
I N A S S E M B L Y
April 18, 2013
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Introduced by M. of A. LENTOL -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to the issuance
of securing orders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings. The legislature finds and declares
that there is a present need to revise New York's procedures regulating
release of persons charged with criminal offenses pending trial. These
procedures, which are set forth in title P of the criminal procedure
law, require criminal courts to issue securing orders releasing such
persons on their own recognizance, fixing bail upon the payment of which
they must be released from custody, or remanding them to the custody of
corrections officials.
Experience has shown that these procedures are ill-designed to meet
today's community needs. First, New York remains one of very few states
nationally that fails to require judges, in making bail decisions, to
weigh defendant's threat to public safety. This makes little sense in
modern American life where we as a state need to do all we can to be
effective and principled in protecting communities from dangerous
persons charged with crime who may otherwise be eligible for release
pending trial. Second, as many have recognized, New York's bail rules,
as applied, can be particularly unfair to poor persons and their fami-
lies as bail beyond the financial wherewithal of a criminal defendant is
frequently ordered in low-level offenses even where such defendant may
pose little risk of flight.
Accordingly, this act has two purposes. First, it seeks to recognize
what most other state jurisdictions and the federal government have long
accepted - that a defendant's danger to the community is a factor that
must be considered by a court charged with determining whether that
defendant should be released pending trial. Second, this act aims to
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08986-01-3
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ensure that the state's bail statutes are implemented fairly and that
poor persons charged with crime should not be at any special disadvan-
tage when it comes to decisions regarding release pending trial.
S 2. The opening paragraph of paragraph (a) of subdivision 2 of
section 510.30 of the criminal procedure law is amended to read as
follows:
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 TO ASSURE THE SAFETY OF ANY OTHER
PERSON OR THE COMMUNITY. In determining [that matter] THESE MATTERS,
the court must, on the basis of available information, consider and take
into account:
S 3. The section heading of section 510.40 of the criminal procedure
law is amended and a new subdivision 1-a is added to read as follows:
Application for recognizance or bail; determination thereof, FIXING
CONDITIONS THEREFOR, form of securing order and execution
thereof.
1-A. THE COURT MAY MAKE ANY SECURING ORDER SPECIFIED IN PARAGRAPH (A)
OR (B) OF SUBDIVISION ONE OF THIS SECTION SUBJECT TO ANY CONDITION OR
CONDITIONS THAT, IN ITS DETERMINATION, WILL REASONABLY ASSURE THE
APPEARANCE OF THE PRINCIPAL IN COURT WHEN REQUIRED OR THAT WILL REASON-
ABLY ASSURE THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY. SUCH CONDI-
TION OR CONDITIONS MAY INCLUDE ANY THAT TO THE COURT SEEM APPROPRIATE
PROVIDED THAT THEY REPRESENT THE LEAST RESTRICTIVE CONDITION OR CONDI-
TIONS NECESSARY. NOTWITHSTANDING THE FOREGOING, THIS SUBDIVISION SHALL
NOT AFFECT A COURT'S AUTHORITY PURSUANT TO SECTIONS 530.12 AND 530.13 OF
THIS TITLE.
S 4. Subdivision 1 and the opening paragraph of subdivision 2 of
section 530.20 of the criminal procedure law, as amended by chapter 531
of the laws of 1975, are amended to read 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] OTHER THAN A
VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF
THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A
FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION
125.15 OF THE PENAL LAW, the court must order recognizance [or bail]
UNLESS THE COURT DETERMINES THAT SUCH A SECURING ORDER WILL NOT REASON-
ABLY SECURE THE DEFENDANT'S COURT ATTENDANCE WHEN REQUIRED OR WILL
ENDANGER THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY IN WHICH EVENT
THE COURT MUST ORDER BAIL.
When the defendant is charged, by felony complaint, with a VIOLENT
felony OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE
PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY
OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF
THE PENAL LAW, the court may, in its discretion, order recognizance or
bail except as otherwise provided in this subdivision:
S 5. Subdivisions 1, 2 and 3 of section 530.40 of the criminal proce-
dure law, subdivision 3 as amended by chapter 264 of the laws of 2003,
are amended to read as follows:
1. When the defendant is charged with an offense or offenses [of less
than felony grade only] OTHER THAN A VIOLENT FELONY OFFENSE AS DEFINED
IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION
OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE
SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the court
must order recognizance [or bail] UNLESS THE COURT DETERMINES THAT SUCH
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A SECURING ORDER WILL NOT REASONABLY SECURE THE DEFENDANT'S COURT
ATTENDANCE WHEN REQUIRED OR WILL ENDANGER THE SAFETY OF ANY OTHER PERSON
OR THE COMMUNITY IN WHICH EVENT THE COURT MUST ORDER RECOGNIZANCE OR
BAIL.
2. When the defendant is charged with a VIOLENT felony OFFENSE AS
DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE
COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER
IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the
court may, in its discretion, order recognizance or bail. In any such
case in which an indictment (a) has resulted from an order of a local
criminal court holding the defendant for the action of the grand jury,
or (b) was filed at a time when a felony complaint charging the same
conduct was pending in a local criminal court, and in which such local
criminal court or a superior court judge has issued an order of recogni-
zance or bail which is still effective, the superior court's order may
be in the form of a direction continuing the effectiveness of the previ-
ous order.
3. Notwithstanding the provisions of [subdivision] SUBDIVISIONS ONE
AND two OF THIS SECTION, a superior court may not order recognizance or
bail, or permit a defendant to remain at liberty pursuant to an existing
order, after he OR SHE has been convicted of either: (a) a class A felo-
ny or (b) any class B or class C felony defined in article one hundred
thirty of the penal law committed or attempted to be committed by a
person eighteen years of age or older against a person less than eigh-
teen years of age. In either case the court must commit or remand the
defendant to the custody of the sheriff.
S 6. The criminal procedure law is amended by adding a new section
530.42 to read as follows:
S 530.42 ORDER OF RECOGNIZANCE OR BAIL: REVIEW OF SECURING ORDER.
NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 510.20 OF
THIS TITLE, UPON A DEFENDANT'S FIRST APPEARANCE BEFORE THE COURT IN A
CRIMINAL ACTION OR PROCEEDING IN WHICH HE OR SHE IS CHARGED WITH ONE OR
MORE OFFENSES, OCCURRING NOT LESS THAN THIRTY DAYS AFTER HE OR SHE WAS
ARRAIGNED THEREON, THE COURT MUST ENTERTAIN AN APPLICATION BY THE
DEFENDANT FOR A CHANGE IN ANY SECURING ORDER THEN APPLICABLE TO SUCH
DEFENDANT IN SUCH ACTION OR PROCEEDING. UPON SUCH APPLICATION, THE
DEFENDANT MUST BE ACCORDED AN OPPORTUNITY TO BE HEARD, AND THE COURT
MUST DETERMINE THE APPLICATION DE NOVO, WITHOUT REGARD TO THE EXISTING
SECURING ORDER AND IN THE SAME MANNER AS IT WOULD DETERMINE AN APPLICA-
TION FOR RECOGNIZANCE OR BAIL MADE BY A DEFENDANT WHEN HE OR SHE FIRST
COMES UNDER THE CONTROL OF THE COURT. NOTWITHSTANDING THE FOREGOING,
THIS SECTION SHALL NOT APPLY WHERE (I) A DEFENDANT IS CHARGED WITH ONE
OR MORE OFFENSES IN A SUPERIOR COURT BY INDICTMENT OR SUPERIOR COURT
INFORMATION FILED AFTER THE DEFENDANT HAS BEEN HELD FOR ACTION OF THE
GRAND JURY BY A LOCAL CRIMINAL COURT BEFORE WHICH A FELONY COMPLAINT
CHARGING DEFENDANT WITH COMMISSION OF ONE OR MORE OFFENSES WAS PENDING,
AND (II) WHILE SUCH FELONY COMPLAINT WAS PENDING, SUCH LOCAL CRIMINAL
COURT RECEIVED AND DETERMINED AN APPLICATION BY DEFENDANT PURSUANT TO
THIS SECTION IN RELATION TO A SECURING ORDER ISSUED BY SUCH COURT UPON
DEFENDANT'S ARRAIGNMENT ON SUCH FELONY COMPLAINT.
S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.