Bill Text: NY A08820 | 2017-2018 | General Assembly | Introduced

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Bill Title: Relates to recognizance procedures and bail reform; repeals certain provisions relating thereto.

Spectrum: Partisan Bill (Democrat 53-0)

Status: (Introduced - Dead) 2018-01-03 - referred to codes [A08820 Detail]

Download: New_York-2017-A08820-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          8820
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    December 6, 2017
                                       ___________
        Introduced by M. of A. QUART, O'DONNELL -- read once and referred to the
          Committee on Codes
        AN  ACT to amend the criminal procedure law, in relation to recognizance
          procedures and bail reform; and to repeal certain provisions  of  such
          law relating thereto
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Legislative intent. The purpose of this legislation  is  to
     2  reform  the  process  by  which courts in the state of New York evaluate
     3  applications by criminal defendants who seek release on their own recog-
     4  nizance. New York's current bail statute has been applied  in  a  manner
     5  that  has  led  to  unsatisfactory  levels  of  pre-trial detention. The
     6  purpose of this legislation is to ensure decarceration  and  release  of
     7  individuals  on  their  own recognizance in the overwhelming majority of
     8  criminal cases by applying a  rebuttable  presumption  of  recognizance.
     9  Courts  in  New  York must consider only admissible evidence at recogni-
    10  zance hearings and must apply the least restrictive measures  to  ensure
    11  an individual's return to court.
    12    §  2. Subdivisions 3, 6 and 7 of section 500.10 of the criminal proce-
    13  dure law are amended to read as follows:
    14    3. ["Fix bail." A court fixes bail when, having acquired control  over
    15  the  person  of a principal, it designates a sum of money and stipulates
    16  that, if bail in such amount is posted on behalf of  the  principal  and
    17  approved, it will permit him to be at liberty during the pendency of the
    18  criminal  action  or proceeding involved] "Recognizance hearing" means a
    19  hearing before the court where the principal appears for the purposes of
    20  the court considering recognizance or committing the  principal  to  the
    21  custody of the sheriff.
    22    6.  "Order of recognizance [or bail]" means a securing order releasing
    23  a principal on his own recognizance [or fixing bail].
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13444-03-7
        A. 8820                             2
     1    7. "Application for recognizance [or bail]" means an application by  a
     2  principal  [that] to the court[, instead of committing him to or retain-
     3  ing him in] that the principal be released instead of committed  to  the
     4  custody  of  the sheriff[, either release him on his own recognizance or
     5  fix bail].
     6    §  3.  Subdivisions 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of
     7  section 500.10 of the criminal procedure law are REPEALED  and  subdivi-
     8  sion 20 is renumbered subdivision 8.
     9    § 4. Section 510.10 of the criminal procedure law, as amended by chap-
    10  ter 459 of the laws of 1984, is amended to read as follows:
    11  § 510.10  Securing order; when required.
    12    1.  When  a  principal,  whose  future  court attendance at a criminal
    13  action or proceeding is or may be required, initially  comes  under  the
    14  control of a court, such court must, by a securing order, either release
    15  him  or  her on his or her own recognizance[, fix bail] or commit him or
    16  her to the custody of the sheriff.   Every  court  when  considering  an
    17  application  for recognizance or committing the principal to the custody
    18  of the sheriff must apply a rebuttable presumption of recognizance, with
    19  the exception of the following felony charges where there is a  rebutta-
    20  ble presumption of commitment to the custody of the sheriff:
    21    (a)  Criminally negligent homicide as defined in section 125.10 of the
    22  penal law;
    23    (b) Aggravated criminally negligent homicide  as  defined  in  section
    24  125.11 of the penal law;
    25    (c)  Murder  in  the second degree as defined in section 125.25 of the
    26  penal law;
    27    (d) Aggravated murder as defined in section 125.26 of the penal law;
    28    (e) Murder in the first degree as defined in  section  125.27  of  the
    29  penal law;
    30    (f) Rape in the first degree as defined in section 130.35 of the penal
    31  law;
    32    (g)  Course  of  sexual conduct against a child in the first degree as
    33  defined in section 130.75 of the penal law;
    34    (h) Predatory sexual assault as defined in section 130.95 of the penal
    35  law;
    36    (i) Predatory sexual assault against a child  as  defined  in  section
    37  130.96 of the penal law;
    38    (j) Kidnapping in the first degree as defined in section 135.25 of the
    39  penal law;
    40    (k)  Arson  in  the  first  degree as defined in section 150.20 of the
    41  penal law;
    42    (l) Criminal possession of a weapon in the first degree as defined  in
    43  section 265.04 of the penal law;
    44    (m)  Criminal  sale  of  a  firearm  in the first degree as defined in
    45  section 265.13 of the penal law;
    46    (n) Terrorism in the second degree as defined in section 490.10 of the
    47  penal law;
    48    (o) Terrorism in the first degree as defined in section 490.15 of  the
    49  penal law;
    50    (p)  Hindering prosecution of terrorism in the first degree as defined
    51  in section 490.35 of the penal law;
    52    (q) Criminal possession of a chemical weapon or biological  weapon  in
    53  the second degree as defined in section 490.40 of the penal law;
    54    (r)  Criminal  possession  of  a  chemical or biological weapon in the
    55  first degree as defined in section 490.45 of the penal law;
        A. 8820                             3
     1    (s) Criminal use of a chemical or  biological  weapon  in  the  second
     2  degree as defined in section 490.50 of the penal law; or
     3    (t)  Criminal  use  of  a  chemical  or biological weapon in the first
     4  degree as defined in section 490.55 of the penal law.
     5    2. The court shall inform the principal that  the  conditions  of  the
     6  securing   order   are  subject  to  modification  consistent  with  the
     7  provisions of section 510.25 of this article.
     8    3. When a securing order is revoked or  otherwise  terminated  in  the
     9  course of an uncompleted action or proceeding but the principal's future
    10  court  attendance  still is or may be required and he is still under the
    11  control of a court, a new securing order must be issued. When the  court
    12  revokes  or  otherwise  terminates  a securing order which committed the
    13  principal to the custody of the sheriff, the court  shall  give  written
    14  notification  to  the  sheriff  of such revocation or termination of the
    15  securing order.
    16    § 5. Section 510.20 of the criminal procedure law is amended  to  read
    17  as follows:
    18  § 510.20 Application  for  recognizance [or bail]; [making and] determi-
    19             nation [thereof in general] and timing.
    20    1.  Upon any occasion when a court is required  to  issue  a  securing
    21  order  with  respect  to a principal, or at any time when a principal is
    22  confined in the custody of the sheriff  as  a  result  of  a  previously
    23  issued  securing  order, he may make an application for recognizance [or
    24  bail].
    25    2.  Upon such application, the principal must be accorded an  opportu-
    26  nity  to  be  heard,  present  evidence  and to contend that an order of
    27  recognizance [or bail must  or  should  issue,  that  the  court  should
    28  release  him  on  his own recognizance rather than fix bail, and that if
    29  bail is fixed it should be in a suggested amount and form] be issued.
    30    3. The court shall make a pre-trial release decision for the principal
    31  without unnecessary delay, but in no case later than  forty-eight  hours
    32  after the principal's initial commitment to jail.
    33    §  6.  The  criminal  procedure  law  is  amended  by adding three new
    34  sections 510.25, 510.26 and 510.27 to read as follows:
    35  § 510.25 Prosecutor; motion.
    36    The prosecutor may file with the court at any time, including  at  any
    37  time  before  or  after  the  principal's release from custody, a motion
    38  seeking the pre-trial detention of the principal for which the  prosecu-
    39  tor shall present evidence to the court demonstrating that:
    40    1. The principal will not appear in court as required; or
    41    2.  The  principal will obstruct or attempt to obstruct justice or the
    42  criminal process; or
    43    3. The principal would threaten, injure or intimidate,  a  prospective
    44  witness or juror.
    45  § 510.26 Prosecutor; motion; evidentiary standard.
    46    A  motion to the court seeking pre-trial detention pursuant to section
    47  510.25 of this article must set forth admissible evidence as defined  by
    48  this  chapter.  There shall be a rebuttable presumption that the princi-
    49  pal be detained pending trial if the court, upon  consideration  of  the
    50  admissible evidence, determines by a preponderance of the evidence that:
    51    1.  None  of the pre-trial supervision services available would ensure
    52  the principal's appearance in court when required; or
    53    2. The principal would injure or intimidate a prospective  witness  or
    54  juror if released on his or her own recognizance.
    55  § 510.27 Motion for rehearing; securing order.
        A. 8820                             4
     1    1.  The  parties, after a determination by the court at a recognizance
     2  hearing, at any time before trial, may submit  a  motion  to  the  court
     3  seeking  to  vacate  or  modify the securing order.  A motion seeking to
     4  vacate or modify a securing order must include admissible evidence show-
     5  ing  a  change of circumstances with respect to the conditions set forth
     6  in section 510.25 of this article.
     7    2. The court  will  determine  by  a  preponderance  of  the  evidence
     8  presented whether the securing order should be vacated or modified.
     9    3. The court shall reopen a recognizance hearing upon its own applica-
    10  tion,  at  any  time  before  trial, if the court finds that information
    11  exists that was not known to the prosecutor or principal at the time  of
    12  the  recognizance  hearing that has a material bearing on the conditions
    13  set forth in section 510.25 of this article. The court  will  make  this
    14  information  known to the prosecutor and principal prior to the recogni-
    15  zance hearing.
    16    § 7. Section 510.30 of the criminal procedure law is  REPEALED  and  a
    17  new section 510.30 is added to read as follows:
    18  § 510.30 Right to counsel.
    19    A  principal  or  defendant  has  the right to the aid of counsel at a
    20  recognizance hearing. If he or she appears upon such recognizance  hear-
    21  ing without counsel, he or she has the following rights:
    22    1. To an adjournment for the purpose of obtaining counsel; and
    23    2.  To  have counsel assigned by the court if he or she is financially
    24  unable to obtain the same.
    25    § 8. Section 510.40 of the criminal procedure law is amended  to  read
    26  as follows:
    27  §  510.40   Application for recognizance or [bail] commitment; [determi-
    28               nation thereof,] form of securing order and execution ther-
    29               eof.
    30    1.   An application for recognizance  or  [bail]  commitment  must  be
    31  determined by a securing order which either:
    32    (a)    Grants the application and releases the principal on his or her
    33  own recognizance; or
    34    (b)  [Grants the application and fixes bail; or
    35    (c)]  Denies the application and commits the principal to, or  retains
    36  him or her in, the custody of the sheriff.
    37    2.    Upon  ordering  that  a  principal be released on his or her own
    38  recognizance, the court must direct him or her to appear in the criminal
    39  action or proceeding involved whenever his  or  her  attendance  may  be
    40  required  and  to render himself or herself at all times amenable to the
    41  orders and processes of the court.  If such principal is in the  custody
    42  of  the  sheriff [or at liberty upon bail at the time of the order], the
    43  court must direct that he or she be discharged from such custody [or, as
    44  the case may be, that his bail be exonerated]. Any  restrictions  placed
    45  on a principal released on his or her own recognizance must be the least
    46  restrictive that will ensure the principal's return to court.
    47    [3.    Upon the issuance of an order fixing bail, and upon the posting
    48  thereof, the court  must  examine  the  bail  to  determine  whether  it
    49  complies  with the order.  If it does, the court must, in the absence of
    50  some factor or circumstance which in law requires or  authorizes  disap-
    51  proval  thereof,  approve  the  bail  and  must  issue  a certificate of
    52  release, authorizing the principal to be at liberty, and, if  he  is  in
    53  the  custody  of  the  sheriff  at  the  time,  directing the sheriff to
    54  discharge him therefrom.  If the bail fixed is not  posted,  or  is  not
    55  approved  after being posted, the court must order that the principal be
    56  committed to the custody of the sheriff.]
        A. 8820                             5
     1    § 9. Section 510.50 of the criminal procedure law is amended  to  read
     2  as follows:
     3  § 510.50  Enforcement of securing order.
     4    When  the  attendance  of  a  principal confined in the custody of the
     5  sheriff is required at the criminal action or proceeding at a particular
     6  time and place, the court may compel such attendance  by  directing  the
     7  sheriff  to produce him or her at such time and place.  If the principal
     8  is at liberty on his or her own recognizance [or on bail],  his  or  her
     9  attendance  may  be  achieved or compelled by various methods, including
    10  notification and the issuance of a bench warrant, prescribed by  law  in
    11  provisions governing such matters with respect to the particular kind of
    12  action or proceeding involved.
    13    §  10.  The  criminal procedure law is amended by adding a new section
    14  510.60 to read as follows:
    15  § 510.60 Statistical reports.
    16    The division of criminal justice services  will  compile  and  publish
    17  data  on  the  disposition  of  all recognizance hearings in all courts,
    18  disaggregated by county and including the following information:
    19    1. The aggregate number of recognizance hearings;
    20    2. The aggregate number of defendants and principals who were heard at
    21  recognizance hearings;
    22    3. The race, ethnicity, age and sex of each defendant or principal;
    23    4. The crimes each defendant or principal were charged with; and
    24    5. The disposition of each hearing whether for recognizance or commit-
    25  ment.
    26    § 11. Article 520 of the criminal procedure law is REPEALED.
    27    § 12. Section 530.10 of the criminal procedure law is amended to  read
    28  as follows:
    29  § 530.10 Order of recognizance [or bail]; in general.
    30    Under  circumstances prescribed in [this] article 510 of this title, a
    31  court, upon application of a principal charged with a crime or a defend-
    32  ant [charged with or] convicted of an offense, is required or authorized
    33  to order [bail or] recognizance for the release [or prospective release]
    34  of such principal or defendant,  or  commitment  of  such  principal  or
    35  defendant during the pendency of either:
    36    1.  A criminal action based upon such charge; or
    37    2.   An appeal taken by the defendant from a judgment of conviction or
    38  a sentence or from an order of an intermediate appellate court affirming
    39  or modifying a judgment of conviction or a sentence.
    40    § 13. Paragraph (a) of subdivision 11 of section 530.12 of the  crimi-
    41  nal  procedure  law,  as  amended by chapter 222 of the laws of 1994, is
    42  amended to read as follows:
    43    (a) revoke an order of recognizance [or revoke an  order  of  bail  or
    44  order forfeiture of such bail] and commit the defendant to custody; or
    45    §  14. Sections 530.20, 530.30, 530.40, 530.45, 530.50, 530.60, 530.70
    46  and 530.80 of the criminal procedure law are REPEALED.
    47    § 15. This act shall take effect immediately.