S T A T E O F N E W Y O R K ________________________________________________________________________ 7028 2015-2016 Regular Sessions I N A S S E M B L Y April 20, 2015 ___________ 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: 1 Section 1. Legislative findings. The legislature finds and declares 2 that there is a present need to revise New York's procedures regulating 3 release of persons charged with criminal offenses pending trial. These 4 procedures, which are set forth in title P of the criminal procedure 5 law, require criminal courts to issue securing orders releasing such 6 persons on their own recognizance, fixing bail upon the payment of which 7 they must be released from custody, or remanding them to the custody of 8 corrections officials. 9 Experience has shown that these procedures are ill-designed to meet 10 today's community needs. First, New York remains one of very few states 11 nationally that fails to require judges, in making bail decisions, to 12 weigh defendant's threat to public safety. This makes little sense in 13 modern American life where we as a state need to do all we can to be 14 effective and principled in protecting communities from dangerous 15 persons charged with crime who may otherwise be eligible for release 16 pending trial. Second, as many have recognized, New York's bail rules, 17 as applied, can be particularly unfair to poor persons and their fami- 18 lies as bail beyond the financial wherewithal of a criminal defendant is 19 frequently ordered in low-level offenses even where such defendant may 20 pose little risk of flight. 21 Accordingly, this act has two purposes. First, it seeks to recognize 22 what most other state jurisdictions and the federal government have long 23 accepted - that a defendant's danger to the community is a factor that 24 must be considered by a court charged with determining whether that 25 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. LBD07847-01-5 A. 7028 2 1 ensure that the state's bail statutes are implemented fairly and that 2 poor persons charged with crime should not be at any special disadvan- 3 tage when it comes to decisions regarding release pending trial. 4 S 2. The opening paragraph of paragraph (a) of subdivision 2 of 5 section 510.30 of the criminal procedure law is amended to read as 6 follows: 7 With respect to any principal, the court must consider the kind and 8 degree of control or restriction that is necessary to secure his OR HER 9 court attendance when required AND TO ASSURE THE SAFETY OF ANY OTHER 10 PERSON OR THE COMMUNITY. In determining [that matter] THESE MATTERS, 11 the court must, on the basis of available information, consider and take 12 into account: 13 S 3. The section heading of section 510.40 of the criminal procedure 14 law is amended and a new subdivision 1-a is added to read as follows: 15 Application for recognizance or bail; determination thereof, FIXING 16 CONDITIONS THEREFOR, form of securing order and execution 17 thereof. 18 1-A. THE COURT MAY MAKE ANY SECURING ORDER SPECIFIED IN PARAGRAPH (A) 19 OR (B) OF SUBDIVISION ONE OF THIS SECTION SUBJECT TO ANY CONDITION OR 20 CONDITIONS THAT, IN ITS DETERMINATION, WILL REASONABLY ASSURE THE 21 APPEARANCE OF THE PRINCIPAL IN COURT WHEN REQUIRED OR THAT WILL REASON- 22 ABLY ASSURE THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY. SUCH CONDI- 23 TION OR CONDITIONS MAY INCLUDE ANY THAT TO THE COURT SEEM APPROPRIATE 24 PROVIDED THAT THEY REPRESENT THE LEAST RESTRICTIVE CONDITION OR CONDI- 25 TIONS NECESSARY. NOTWITHSTANDING THE FOREGOING, THIS SUBDIVISION SHALL 26 NOT AFFECT A COURT'S AUTHORITY PURSUANT TO SECTIONS 530.12 AND 530.13 OF 27 THIS TITLE. 28 S 4. Subdivision 1 and the opening paragraph of subdivision 2 of 29 section 530.20 of the criminal procedure law, as amended by chapter 531 30 of the laws of 1975, are amended to read as follows: 31 1. When the defendant is charged[, by information, simplified informa- 32 tion, prosecutor's information or misdemeanor complaint,] with an 33 offense or offenses [of less than felony grade only] OTHER THAN A 34 VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF 35 THE PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A 36 FELONY OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 37 125.15 OF THE PENAL LAW, the court must order recognizance [or bail] 38 UNLESS THE COURT DETERMINES THAT SUCH A SECURING ORDER WILL NOT REASON- 39 ABLY SECURE THE DEFENDANT'S COURT ATTENDANCE WHEN REQUIRED OR WILL 40 ENDANGER THE SAFETY OF ANY OTHER PERSON OR THE COMMUNITY IN WHICH EVENT 41 THE COURT MUST ORDER BAIL. 42 When the defendant is charged, by felony complaint, with a VIOLENT 43 felony OFFENSE AS DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE 44 PENAL LAW OR THE COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY 45 OR MANSLAUGHTER IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF 46 THE PENAL LAW, the court may, in its discretion, order recognizance or 47 bail except as otherwise provided in this subdivision: 48 S 5. Subdivisions 1, 2 and 3 of section 530.40 of the criminal proce- 49 dure law, subdivision 3 as amended by chapter 264 of the laws of 2003, 50 are amended to read as follows: 51 1. When the defendant is charged with an offense or offenses [of less 52 than felony grade only] OTHER THAN A VIOLENT FELONY OFFENSE AS DEFINED 53 IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE COMMISSION 54 OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER IN THE 55 SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the court 56 must order recognizance [or bail] UNLESS THE COURT DETERMINES THAT SUCH A. 7028 3 1 A SECURING ORDER WILL NOT REASONABLY SECURE THE DEFENDANT'S COURT 2 ATTENDANCE WHEN REQUIRED OR WILL ENDANGER THE SAFETY OF ANY OTHER PERSON 3 OR THE COMMUNITY IN WHICH EVENT THE COURT MUST ORDER RECOGNIZANCE OR 4 BAIL. 5 2. When the defendant is charged with a VIOLENT felony OFFENSE AS 6 DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THE PENAL LAW OR THE 7 COMMISSION OR ATTEMPTED COMMISSION OF A CLASS A FELONY OR MANSLAUGHTER 8 IN THE SECOND DEGREE AS PROVIDED IN SECTION 125.15 OF THE PENAL LAW, the 9 court may, in its discretion, order recognizance or bail. In any such 10 case in which an indictment (a) has resulted from an order of a local 11 criminal court holding the defendant for the action of the grand jury, 12 or (b) was filed at a time when a felony complaint charging the same 13 conduct was pending in a local criminal court, and in which such local 14 criminal court or a superior court judge has issued an order of recogni- 15 zance or bail which is still effective, the superior court's order may 16 be in the form of a direction continuing the effectiveness of the previ- 17 ous order. 18 3. Notwithstanding the provisions of [subdivision] SUBDIVISIONS ONE 19 AND two OF THIS SECTION, a superior court may not order recognizance or 20 bail, or permit a defendant to remain at liberty pursuant to an existing 21 order, after he OR SHE has been convicted of either: (a) a class A felo- 22 ny or (b) any class B or class C felony defined in article one hundred 23 thirty of the penal law committed or attempted to be committed by a 24 person eighteen years of age or older against a person less than eigh- 25 teen years of age. In either case the court must commit or remand the 26 defendant to the custody of the sheriff. 27 S 6. The criminal procedure law is amended by adding a new section 28 530.42 to read as follows: 29 S 530.42 ORDER OF RECOGNIZANCE OR BAIL: REVIEW OF SECURING ORDER. 30 NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 510.20 OF 31 THIS TITLE, UPON A DEFENDANT'S FIRST APPEARANCE BEFORE THE COURT IN A 32 CRIMINAL ACTION OR PROCEEDING IN WHICH HE OR SHE IS CHARGED WITH ONE OR 33 MORE OFFENSES, OCCURRING NOT LESS THAN THIRTY DAYS AFTER HE OR SHE WAS 34 ARRAIGNED THEREON, THE COURT MUST ENTERTAIN AN APPLICATION BY THE 35 DEFENDANT FOR A CHANGE IN ANY SECURING ORDER THEN APPLICABLE TO SUCH 36 DEFENDANT IN SUCH ACTION OR PROCEEDING. UPON SUCH APPLICATION, THE 37 DEFENDANT MUST BE ACCORDED AN OPPORTUNITY TO BE HEARD, AND THE COURT 38 MUST DETERMINE THE APPLICATION DE NOVO, WITHOUT REGARD TO THE EXISTING 39 SECURING ORDER AND IN THE SAME MANNER AS IT WOULD DETERMINE AN APPLICA- 40 TION FOR RECOGNIZANCE OR BAIL MADE BY A DEFENDANT WHEN HE OR SHE FIRST 41 COMES UNDER THE CONTROL OF THE COURT. NOTWITHSTANDING THE FOREGOING, 42 THIS SECTION SHALL NOT APPLY WHERE (I) A DEFENDANT IS CHARGED WITH ONE 43 OR MORE OFFENSES IN A SUPERIOR COURT BY INDICTMENT OR SUPERIOR COURT 44 INFORMATION FILED AFTER THE DEFENDANT HAS BEEN HELD FOR ACTION OF THE 45 GRAND JURY BY A LOCAL CRIMINAL COURT BEFORE WHICH A FELONY COMPLAINT 46 CHARGING DEFENDANT WITH COMMISSION OF ONE OR MORE OFFENSES WAS PENDING, 47 AND (II) WHILE SUCH FELONY COMPLAINT WAS PENDING, SUCH LOCAL CRIMINAL 48 COURT RECEIVED AND DETERMINED AN APPLICATION BY DEFENDANT PURSUANT TO 49 THIS SECTION IN RELATION TO A SECURING ORDER ISSUED BY SUCH COURT UPON 50 DEFENDANT'S ARRAIGNMENT ON SUCH FELONY COMPLAINT. 51 S 7. This act shall take effect on the first of November next succeed- 52 ing the date on which it shall have become a law.