Bill Text: NY A01550 | 2023-2024 | General Assembly | Introduced
Bill Title: Allows courts to hold a pre-trial community safety and well-being hearing.
Spectrum: Slight Partisan Bill (Democrat 5-2)
Status: (Introduced) 2024-01-03 - referred to codes [A01550 Detail]
Download: New_York-2023-A01550-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1550 2023-2024 Regular Sessions IN ASSEMBLY January 17, 2023 ___________ Introduced by M. of A. BUTTENSCHON, CONRAD, THIELE -- read once and referred to the Committee on Codes AN ACT to amend the civil practice law and rules and the criminal proce- dure law, in relation to allowing courts to hold a pre-trial community safety and well-being hearing The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 2 of section 6342 of the civil practice law and 2 rules, as added by chapter 19 of the laws of 2019, is amended to read as 3 follows: 4 2. (a) In determining whether grounds for a temporary extreme risk 5 protection order exist, the court shall consider any relevant factors 6 including, but not limited to, the following acts of the respondent: 7 [(a)] (i) a threat or act of violence or use of physical force 8 directed toward self, the petitioner, or another person; 9 [(b)] (ii) a violation or alleged violation of an order of protection; 10 [(c)] (iii) any pending charge or conviction for an offense involving 11 the use of a weapon; 12 [(d)] (iv) the reckless use, display or brandishing of a firearm, 13 rifle or shotgun; 14 [(e)] (v) any history of a violation of an extreme risk protection 15 order; 16 [(f)] (vi) evidence of recent or ongoing abuse of controlled 17 substances or alcohol; or 18 [(g)] (vii) evidence of recent acquisition of a firearm, rifle, shot- 19 gun or other deadly weapon or dangerous instrument, or any ammunition 20 therefor. 21 (b) In considering the factors under this subdivision, the court shall 22 consider: 23 (i) the time that has elapsed since the occurrence of such act or acts 24 [and]; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05094-01-3A. 1550 2 1 (ii) the age of the person at the time of the occurrence of such act 2 or acts; and 3 (iii) the community safety and well-being of all residents of the 4 state. 5 (c) The court shall use any mental health evaluations the respondent 6 has undergone when making a consideration regarding the community safety 7 and well-being of all residents of the state. 8 (d) For the purposes of this subdivision, "recent" means within the 9 six months prior to the date the petition was filed. 10 § 2. The criminal procedure law is amended by adding a new section 11 510.55 to read as follows: 12 § 510.55 Pretrial detention; community safety and well-being hearing. 13 1. When a principal, whose future court attendance at a criminal 14 action or proceeding is or may be required, comes under the control of a 15 court, the people may make a motion seeking pretrial detention due to 16 the mental health of the principal. The people may seek the pretrial 17 detention of a principal: 18 (a) charged with a felony that involves the use, attempted use or 19 threatened use of physical force against the person of another or any 20 other felony that, by its nature, involves a substantial risk that phys- 21 ical force against the person of another may result; 22 (b) charged with a misdemeanor or felony which has as an element the 23 violation of a court order; 24 (c) charged with a misdemeanor or felony where the victim was 25 subjected to physical, sexual or psychological abuse inflicted by a 26 member of the same family or household, as such term is defined in 27 subdivision one of section 530.11 of this title, as the applicant; 28 (d) charged with an offense for which a minimum term of three years or 29 more is prescribed; 30 (e) charged with intimidating a victim or witness in the first degree 31 as defined in section 215.17 of the penal law, intimidating a victim or 32 witness in the second degree as defined in section 215.16 of the penal 33 law, or intimidating a victim or witness in the third degree as defined 34 in section 215.15 of the penal law; 35 (f) charged with a third or subsequent violation of section eleven 36 hundred ninety-two of the vehicle and traffic law within ten years; 37 (g) charged with a felony which has as an element the use, attempted 38 use or threatened use of physical force or a deadly weapon against the 39 person of another; 40 (h) charged with burglary in the first degree as defined in section 41 140.30 of the penal law, burglary in the second degree as defined in 42 section 140.25 of the penal law, or burglary in the third degree as 43 defined in section 140.20 of the penal law, grand larceny in the second 44 degree as defined in section 155.40 of the penal law, or grand larceny 45 in the fourth degree as defined in section 155.30 of the penal law; 46 (i) charged under article one hundred fifty of the penal law; 47 (j) charged with kidnapping in the first degree as defined in section 48 135.25 of the penal law or kidnapping in the second degree as defined in 49 section 135.20 of the penal law; 50 (k) charged with a crime which involved the use of explosives; 51 (l) otherwise involves conduct that presents a serious risk of phys- 52 ical injury to another for which a term of imprisonment was served and 53 arrested and charged with a second or subsequent offense under article 54 two hundred sixty-five of the penal law; or 55 (m) charged with a felony under article twenty-six of the agriculture 56 and markets law.A. 1550 3 1 2. (a) Upon the appearance of the principal charged with an offense 2 listed in subdivision one of this section before a supreme court or 3 district court judge and upon the motion of the people, the judge shall 4 hold a hearing pursuant to subdivision four of this section and shall 5 issue an order that, pending trial, the individual shall either be 6 released on his or her own recognizance, released on conditions of 7 release as set forth by the judge, or detained under subdivision three 8 of this section. The individual shall be released unless the judge 9 determines that releasing the principal on his or her own recognizance 10 will endanger the community safety and well-being of any other person in 11 the state but does not find by clear and convincing evidence that no 12 conditions of release will reasonably ensure the community safety and 13 well-being of any other person in the state, the judge shall order the 14 pretrial release of the principal: 15 (i) subject to the condition that the person not commit a federal, 16 state or local crime during the period of release; and 17 (ii) subject to the least restrictive further condition, or combina- 18 tion of conditions, that such judge determines will reasonably ensure 19 the community safety and well-being of any other person in the state 20 that the principal: 21 (A) remain in the custody of a designated person, who agrees to assume 22 supervision and to report any violation of a release condition to the 23 court, if the designated person is reasonably able to ensure the judi- 24 cial officer that the person will appear as required and will not pose a 25 danger to the safety of any other person or the community; 26 (B) maintain employment, or, if unemployed, actively seek employment; 27 (C) maintain or commence an educational program; 28 (D) abide by specified restrictions on personal associations, living 29 accommodations or travel; 30 (E) avoid all contact with an alleged victim of the crime and with any 31 potential witness or witnesses who may testify concerning the offense; 32 (F) report on a regular basis to a designated law enforcement agency, 33 pretrial service agency, or other agency; 34 (G) comply with a specified curfew; 35 (H) refrain from possessing a firearm, destructive device, or other 36 dangerous weapon; 37 (I) refrain from excessive use of alcohol, or any use of a narcotic 38 drug or other controlled substance, without a prescription by a licensed 39 medical practitioner; 40 (J) undergo available medical, psychological, or psychiatric treat- 41 ment, including treatment for drug or alcohol dependency and remain in a 42 specified institution if required for that purpose; 43 (K) return to custody for specified hours following release for 44 employment, schooling, or other limited purposes; 45 (L) satisfy any other condition that is reasonably necessary to ensure 46 the appearance of the person as required and to ensure the safety and 47 well-being of any other person and the community; and 48 (M) participates in a community corrections program under the depart- 49 ment of corrections and community supervision, provided, however, that 50 the principal shall not participate in such program without his or her 51 consent to such participation. 52 (b) The judge shall not impose a financial condition that results in 53 the pretrial detention of the person under this section. 54 (c) The judge may at any time amend the order to impose additional or 55 different conditions of release.A. 1550 4 1 3. There shall be a rebuttable presumption of release on recognizance 2 for every principal brought before the court. If, after a hearing pursu- 3 ant to the provisions of subdivision four of this section, the district 4 or supreme court judge finds by clear and convincing evidence that no 5 conditions of release will reasonably ensure the community safety and 6 well-being of any other person in the state, said judge shall order the 7 detention of the principal prior to trial. A principal detained under 8 this subdivision shall be brought to a trial as soon as reasonably 9 possible, but in absence of extraordinary circumstances, such principal 10 shall not be detained for a period exceeding one hundred twenty days by 11 the district court or for a period exceeding one hundred eighty days by 12 the supreme court. 13 4. (a) When a principal is held under arrest for an offense listed in 14 subdivision one of this section and upon a motion by the people, the 15 judge shall hold a hearing to determine whether conditions of release 16 will reasonably ensure the community safety and well-being of any other 17 person in the state. A principal shall be offered the appropriate mental 18 health services while being held under arrest for an offense listed in 19 subdivision one of this section. 20 (b) The hearing shall be held immediately upon the principal's first 21 appearance before the court unless such principal or the people seek a 22 continuance. Except for good cause, a continuance on motion of the prin- 23 cipal shall not exceed seven days and a continuance on motion of the 24 people shall not exceed three business days. During a continuance, the 25 principal shall be detained upon a showing that there existed probable 26 cause to arrest the principal or that without detention the principal 27 would result in serious harm to himself, herself, or others, as defined 28 in paragraph one or two of subdivision (a) of section 9.39 of the mental 29 hygiene law. At the hearing, such principal shall have the right to be 30 represented by counsel, and, if financially unable to retain adequate 31 representation, to have counsel appointed. The principal shall be 32 afforded an opportunity to testify, to present witnesses, to cross-exa- 33 mine witnesses who appear at the hearing, and to present information. 34 Prior to the summons of an alleged victim, or a member of the alleged 35 victim's family, to appear as a witness at the hearing, the principal 36 shall demonstrate to the court a good faith basis for the principal's 37 reasonable belief that the testimony from the witness will be material 38 and relevant to support a conclusion that there are conditions of 39 release that will reasonably ensure the community safety and well-being 40 of any other person in the state. The rules concerning admissibility of 41 evidence in criminal trials shall not apply to the presentation and 42 consideration of information at the hearing and the judge shall consider 43 hearsay contained in a police report, the statement of an alleged victim 44 or witness, and shall have access to any mental health evaluation the 45 principal has undergone prior to hearing. The facts the judge uses to 46 support findings pursuant to subdivision three of this section, that no 47 conditions will reasonably ensure the community safety and well-being of 48 any other person in the state, shall be supported by clear and convinc- 49 ing evidence. In a detention order issued pursuant to the provisions of 50 subdivision three of this section the judge shall: (i) include written 51 findings of fact and a written statement of the reasons for the 52 detention; (ii) direct that the principal be committed to custody or 53 confinement in a corrections facility separate, to the extent practica- 54 ble, from principals awaiting or serving sentence or being held in 55 custody pending appeal or a community treatment center; and (iii) direct 56 that the principal be afforded reasonable opportunity for privateA. 1550 5 1 consultation with his or her counsel. The principal may be detained 2 pending completion of the hearing. The hearing may be reopened by the 3 judge, at any time before trial, or upon a motion of the people or the 4 principal detained if the judge finds that: (A) information exists that 5 was not known at the time of the hearing or that there has been a change 6 in circumstances; and (B) that such information or change in circum- 7 stances has a material bearing on the issue of whether there are condi- 8 tions of release that will reasonably ensure the community safety and 9 well-being of any other person in the state. 10 5. In his or her determination as to whether there are conditions of 11 release that will reasonably ensure the community safety and well-being 12 of any other person in the state, said judge shall, on the basis of any 13 information which he or she can reasonably obtain, take into account the 14 nature and seriousness of the danger posed to any other person or the 15 community that would result by the principal's release, the nature and 16 circumstances of the offense charged, the potential penalty the princi- 17 pal faces, the principal's family ties, employment record, history of 18 mental illness, and reputation, the risk that the principal will 19 obstruct or attempt to obstruct the judge or threaten, injure or intim- 20 idate or attempt to threaten, injure or intimidate a prospective witness 21 or juror, his or her record of convictions, if any, any illegal drug 22 distribution or present drug dependency, and whether the principal is 23 released pending adjudication of a prior charge. 24 6. Nothing in this section shall be construed as modifying or limiting 25 the presumption of innocence. 26 7. (a) A principal aggrieved by the denial of a district court judge 27 to release him or her on his or her own recognizance with or without 28 surety or condition may petition the supreme court for a review of the 29 order of the recognizance and the judge of the district court shall 30 thereupon immediately notify such principal of his or her right to file 31 a petition for review in the supreme court. When a petition for review 32 is filed in the district court or with the detaining authority subse- 33 quent to the petitioner's district court appearance, the clerk of the 34 district court or the detaining authority, as the case may be, shall 35 immediately notify by telephone, the clerk and probation officer of the 36 district court, the district attorney for the district in which the 37 district court is located, the prosecuting officer, the petitioner's 38 counsel, if any, and the clerk of courts of the county to which the 39 petition is to be transmitted. The clerk of the district court, upon the 40 filing of a petition for review, either in the district court or with 41 the detaining authority, shall forthwith transmit the petition for 42 review, a copy of the complaint and the record of the court, including 43 the appearance of the attorney, if any is entered, and a summary of the 44 court's reasons for denying the release of the principal on his or her 45 own recognizance with or without surety or condition to the supreme 46 court for the county in which the district court is located, if a judge 47 thereof is then sitting, or to the supreme court of the nearest county 48 in which a judge is then sitting. The probation officer of the district 49 court shall transmit forthwith to the probation officer of the supreme 50 court, copies of all records of the probation office of said district 51 court pertaining to the petitioner, including the petitioner's record of 52 prior convictions, if any, as currently verified by inquiry of the 53 commissioner. The district court or the detaining authority, as the case 54 may be, shall cause any petitioner in its custody to be brought before 55 said supreme court within two business days of the petition having been 56 filed. The district court is authorized to order any officer authorizedA. 1550 6 1 to execute criminal process to transfer the petitioner and any papers 2 herein above described from the district court or the detaining authori- 3 ty to the supreme court, and to coordinate the transfer of the petition- 4 er and the papers by such officer. The petition for review shall 5 constitute authority in the person or officer having custody of the 6 petitioner to transport the petitioner to said supreme court without the 7 issuance of any writ or other legal process; provided, however, that any 8 district or supreme court is authorized to issue a writ of habeas corpus 9 for the appearance forthwith of the petitioner before the supreme court. 10 (b) The supreme court shall hear the petition for review as speedily 11 as practicable and in any event within five business days of the filing 12 of the petition. The supreme court judge hearing the review may consider 13 the record below which the people and the principal may supplement. The 14 judge of the supreme court may, after a hearing on the petition for 15 review, order that the petitioner be released on his or her own recogni- 16 zance without surety or condition, or, in his or her discretion, to 17 reasonably ensure the effective administration of justice, make any 18 other order of bail or recognizance or remand the petitioner in accord- 19 ance with the terms of the process by which he or she was ordered 20 committed by the district court. 21 8. If after a hearing under subdivision four of this section detention 22 under subdivision three of this section is ordered or pretrial release 23 subject to conditions under subdivision two of this section is ordered, 24 then: (a) the clerk shall immediately notify the principal's probation 25 officer of the order; and (b) the order of detention under subdivision 26 three of this section or order of pretrial release subject to conditions 27 under subdivision two of this section shall be recorded in the princi- 28 pal's criminal record. 29 § 3. This act shall take effect on the first of November next succeed- 30 ing the date on which it shall have become a law and shall apply to all 31 criminal cases where the defendant was arraigned on or after such effec- 32 tive date.
