Bill Text: NY A09885 | 2019-2020 | General Assembly | Introduced
Bill Title: Restores judicial discretion relating to bail reform; provides that when the defendant is charged with a felony, the court shall request of the applicable county pre-trial services agency a risk and needs assessment be conducted on the eligible defendant for the purpose of determining whether such defendant should be released on the defendant's own recognizance, released under non-monetary conditions or, where authorized, bail or commit the defendant to the custody of the sheriff; defines risks and needs assessment; makes related provisions.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2020-02-20 - referred to codes [A09885 Detail]
Download: New_York-2019-A09885-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9885 IN ASSEMBLY February 20, 2020 ___________ Introduced by M. of A. MALLIOTAKIS -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to 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. Section 500.10 of the criminal procedure law is amended by 2 adding a new subdivision 23 to read as follows: 3 23. "Risk and needs assessment" means a risk and needs assessment 4 instrument, approved by the chief administrative judge of the unified 5 court system. Such approved assessment instrument shall be objective, 6 standardized and developed based on analysis of empirical data and risk 7 factors relevant to the principal's danger to the community and risk of 8 failure of a principal to appear. Such approved assessment instrument 9 shall not be discriminatory based on race, national origin, sex, any 10 other protected class or socioeconomic status. 11 § 2. Section 510.10 of the criminal procedure law, as amended by 12 section 2 of part JJJ of chapter 59 of the laws of 2019, is amended to 13 read as follows: 14 § 510.10 Securing order; when required; alternatives available; standard 15 to be applied. 16 1. When a principal, whose future court attendance at a criminal 17 action or proceeding is or may be required, comes under the control of a 18 court, such court shall, in accordance with this title, by a securing 19 order [release the principal] request of the applicable county pre-trial 20 services agency that a risk and needs assessment be conducted on the 21 eligible principal and such court shall take into account the risk and 22 needs assessment, but such assessment shall not be the sole determina- 23 tive factor, for the purpose of determining whether such principal 24 should be released on the principal's own recognizance, [release the25principal] released under non-monetary conditions, or, where authorized, 26 fix bail or commit the principal to the custody of the sheriff. In all 27 such cases, except where another type of securing order is shown to be 28 required by law, the court shall release the principal pending trial on EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14842-05-0A. 9885 2 1 the principal's own recognizance, unless [it is] the risk and needs 2 assessment has demonstrated and the court [makes an individualized3determination] determines that the principal is a danger to the communi- 4 ty or poses a risk of flight to avoid prosecution. If such a finding 5 specific to risk of flight to avoid prosecution is made, the court must 6 select the least restrictive alternative and condition or conditions 7 that will reasonably assure the principal's return to court. The court 8 shall explain its choice of release, release with conditions, bail or 9 remand on the record or in writing. 10 2. A principal is entitled to representation by counsel under this 11 chapter in preparing an application for release, when a securing order 12 is being considered and when a securing order is being reviewed for 13 modification, revocation or termination. If the principal is financially 14 unable to obtain counsel, counsel shall be assigned to the principal. 15 [3. In cases other than as described in subdivision four of this16section the court shall release the principal pending trial on the prin-17cipal's own recognizance, unless the court finds on the record or in18writing that release on the principal's own recognizance will not19reasonably assure the principal's return to court. In such instances,20the court shall release the principal under non-monetary conditions,21selecting the least restrictive alternative and conditions that will22reasonably assure the principal's return to court. The court shall23explain its choice of alternative and conditions on the record or in24writing.254. Where the principal stands charged with a qualifying offense, the26court, unless otherwise prohibited by law, may in its discretion release27the principal pending trial on the principal's own recognizance or under28non-monetary conditions, fix bail, or, where the defendant is charged29with a qualifying offense which is a felony, the court may commit the30principal to the custody of the sheriff. A principal stands charged with31a qualifying offense for the purposes of this subdivision when he or she32stands charged with:33(a) a felony enumerated in section 70.02 of the penal law, other than34burglary in the second degree as defined in subdivision two of section35140.25 of the penal law or robbery in the second degree as defined in36subdivision one of section 160.10 of the penal law;37(b) a crime involving witness intimidation under section 215.15 of the38penal law;39(c) a crime involving witness tampering under section 215.11, 215.1240or 215.13 of the penal law;41(d) a class A felony defined in the penal law, other than in article42two hundred twenty of such law with the exception of section 220.77 of43such law;44(e) a felony sex offense defined in section 70.80 of the penal law or45a crime involving incest as defined in section 255.25, 255.26 or 255.2746of such law, or a misdemeanor defined in article one hundred thirty of47such law;48(f) conspiracy in the second degree as defined in section 105.15 of49the penal law, where the underlying allegation of such charge is that50the defendant conspired to commit a class A felony defined in article51one hundred twenty-five of the penal law;52(g) money laundering in support of terrorism in the first degree as53defined in section 470.24 of the penal law; money laundering in support54of terrorism in the second degree as defined in section 470.23 of the55penal law; or a felony crime of terrorism as defined in article fourA. 9885 3 1hundred ninety of the penal law, other than the crime defined in section2490.20 of such law;3(h) criminal contempt in the second degree as defined in subdivision4three of section 215.50 of the penal law, criminal contempt in the first5degree as defined in subdivision (b), (c) or (d) of section 215.51 of6the penal law or aggravated criminal contempt as defined in section7215.52 of the penal law, and the underlying allegation of such charge of8criminal contempt in the second degree, criminal contempt in the first9degree or aggravated criminal contempt is that the defendant violated a10duly served order of protection where the protected party is a member of11the defendant's same family or household as defined in subdivision one12of section 530.11 of this article; or13(i) facilitating a sexual performance by a child with a controlled14substance or alcohol as defined in section 263.30 of the penal law, use15of a child in a sexual performance as defined in section 263.05 of the16penal law or luring a child as defined in subdivision one of section17120.70 of the penal law.185. Notwithstanding the provisions of subdivisions three and four of19this section, with] 3. With respect to any charge for which bail or 20 remand is not ordered, and for which the court would not [or could not] 21 otherwise require bail or remand, a defendant may, at any time, request 22 that the court set bail in a nominal amount requested by the defendant 23 in the form specified in paragraph (a) of subdivision one of section 24 520.10 of this title; if the court is satisfied that the request is 25 voluntary, the court shall set such bail in such amount. 26 [6.] 4. When a securing order is revoked or otherwise terminated in 27 the course of an uncompleted action or proceeding but the principal's 28 future court attendance still is or may be required and the principal is 29 still under the control of a court, a new securing order must be issued. 30 When the court revokes or otherwise terminates a securing order which 31 committed the principal to the custody of the sheriff, the court shall 32 give written notification to the sheriff of such revocation or termi- 33 nation of the securing order. 34 § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as 35 amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is 36 amended to read as follows: 37 1. Upon any occasion when a court has issued a securing order with 38 respect to a principal and the principal is confined in the custody of 39 the sheriff as a result of the securing order or a previously issued 40 securing order, the principal may make an application for recognizance, 41 release under non-monetary conditions or bail. Any such decision by the 42 court for a change in a securing order with respect to a principal shall 43 take into account the risk and needs assessment conducted by the appli- 44 cable county pre-trial services agency, but such assessment shall not be 45 the sole determinative factor. 46 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as 47 amended by section 5 of part JJJ of chapter 59 of the laws of 2019, is 48 amended to read as follows: 49 1. With respect to any principal, the court in all cases, unless 50 otherwise provided by law, must impose the least restrictive kind and 51 degree of control or restriction that is necessary to secure the princi- 52 pal's return to court when required unless such principal poses a danger 53 to the community. In determining that matter, the court [must] in addi- 54 tion to taking into account the risk and needs assessment conducted by 55 the applicable county pre-trial services agency may, on the basis of 56 available information, consider and take into account information aboutA. 9885 4 1 the principal that is relevant to the principal's return to court, 2 including: 3 (a) The principal's activities and history; 4 (b) If the principal is a defendant, the charges facing the principal; 5 (c) The principal's criminal conviction record if any; 6 (d) The principal's record of previous adjudication as a juvenile 7 delinquent, as retained pursuant to section 354.2 of the family court 8 act, or, of pending cases where fingerprints are retained pursuant to 9 section 306.1 of such act, or a youthful offender, if any; 10 (e) The principal's previous record with respect to flight to avoid 11 criminal prosecution; 12 (f) If monetary bail is authorized, according to the restrictions set 13 forth in this title, the principal's individual financial circumstances, 14 and, in cases where bail is authorized, the principal's ability to post 15 bail without posing undue hardship, as well as his or her ability to 16 obtain a secured, unsecured, or partially secured bond; 17 (g) Where the principal is charged with a crime or crimes against a 18 member or members of the same family or household as that term is 19 defined in subdivision one of section 530.11 of this title, the follow- 20 ing factors: 21 (i) any violation by the principal of an order of protection issued by 22 any court for the protection of a member or members of the same family 23 or household as that term is defined in subdivision one of section 24 530.11 of this title, whether or not such order of protection is 25 currently in effect; and 26 (ii) the principal's history of use or possession of a firearm; and 27 (h) If the principal is a defendant, in the case of an application for 28 a securing order pending appeal, the merit or lack of merit of the 29 appeal. 30 § 5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal 31 procedure law, as added by section 8 of part JJJ of chapter 59 of the 32 laws of 2019, is amended to read as follows: 33 [(a) Any questionnaire, instrument or tool] The risk and needs assess- 34 ment instrument used with a principal in the process of considering or 35 determining the principal's possible release on recognizance, release 36 under non-monetary conditions or on bail, or used with a principal in 37 the process of considering or determining a condition or conditions of 38 release or monitoring by a pretrial services agency, shall be promptly 39 made available to the principal and the principal's counsel upon [writ-40ten] request. [Any such blank form questionnaire, instrument or tool] 41 Any such blank risk and needs assessment instrument regularly used in 42 the county for such purpose or a related purpose shall be made available 43 to any person promptly upon written request. 44 § 6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal 45 procedure law is REPEALED. 46 § 7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal 47 procedure law, as added by section 16 of part JJJ of chapter 59 of the 48 laws of 2019, is amended to read as follows: 49 (a) [In cases other than as described in paragraph (b) of this subdi-50vision the] When the principal is charged with an offense or offenses of 51 less than felony grade only, the court shall [release the] request of 52 the applicable county pre-trial services agency a risk and needs assess- 53 ment be conducted on the eligible principal and the court shall take 54 into account the risk and needs assessment, but such assessment shall 55 not be the sole determinative factor, for the purpose of determining 56 whether such principal should be released pending trial on the princi-A. 9885 5 1 pal's own recognizance, [unless the court finds on the record or in2writing that release on the principal's own recognizance will not3reasonably assure the principal's return to court. In such instances,4the court shall release the principal under non-monetary conditions,5selecting the least restrictive alternative and conditions that will6reasonably assure the principal's return to court] released under non- 7 monetary conditions, or where authorized, fix bail or commit the princi- 8 pal to the custody of the sheriff. The court shall explain its choice of 9 [alternative and] release, release with conditions, bail or remand on 10 the record or in writing. 11 § 8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal 12 procedure law is REPEALED. 13 § 9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal 14 procedure law, as added by section 16 of part JJJ of chapter 59 of the 15 laws of 2019, is relettered paragraph (b) and amended to read as 16 follows: 17 (b) [Notwithstanding the provisions of paragraphs (a) and (b) of this18subdivision, with] With respect to any charge for which bail or remand 19 is not ordered, and for which the court would not [or could not] other- 20 wise require bail or remand, a defendant may, at any time, request that 21 the court set bail in a nominal amount requested by the defendant in the 22 form specified in paragraph (a) of subdivision one of section 520.10 of 23 this title; if the court is satisfied that the request is voluntary, the 24 court shall set such bail in such amount. 25 § 10. The opening paragraph of subdivision 2 of section 530.20 of the 26 criminal procedure law, as amended by section 16 of part JJJ of chapter 27 59 of the laws of 2019, is amended to read as follows: 28 When the defendant is charged, by felony complaint, with a felony, the 29 court [may, in its discretion, order] shall, request of the applicable 30 county pre-trial services agency a risk and needs assessment be 31 conducted on the eligible defendant and the court shall take into 32 account the risk and needs assessment, but such assessment shall not be 33 the sole determinative factor, for the purpose of determining whether 34 such defendant should be released on the defendant's own recognizance, 35 [release] released under non-monetary conditions, or, where authorized, 36 bail or commit the defendant to the custody of the sheriff except as 37 otherwise provided in [subdivision one of this section or] this subdivi- 38 sion: 39 § 11. Section 530.40 of the criminal procedure law, as amended by 40 section 18 of part JJJ of chapter 59 of the laws of 2019, is amended to 41 read as follows: 42 § 530.40 Order of recognizance, release under non-monetary conditions or 43 bail; by superior court when action is pending therein. 44 When a criminal action is pending in a superior court, such court, 45 upon application of a defendant, must or may order recognizance or bail 46 as follows: 47 1. When the defendant is charged with an offense or offenses of less 48 than felony grade only, the court must, request of the applicable county 49 pre-trial services agency a risk and needs assessment be conducted on 50 the eligible defendant and the court shall take into account the risk 51 and needs assessment, but such assessment shall not be the sole determi- 52 native factor, for the purpose of determining whether such defendant, 53 unless otherwise provided by law, should be released on an order of 54 recognizance or bail or release under non-monetary conditions [in55accordance with this section] or commit the defendant to the custody of 56 the sheriff.A. 9885 6 1 2. When the defendant is charged with a felony, the court [may, unless2otherwise provided by law in its discretion, order] shall request of 3 the applicable county pre-trial services agency a risk and needs assess- 4 ment be conducted on the eligible defendant and the court shall take 5 into account the risk and needs assessment, but such assessment shall 6 not be the sole determinative factor, for the purpose of determining 7 whether such defendant should be released on the defendant's own recog- 8 nizance, [release] released under non-monetary conditions or, where 9 authorized, bail or commit the defendant to the custody of the sheriff. 10 In any such case in which an indictment (a) has resulted from an order 11 of a local criminal court holding the defendant for the action of the 12 grand jury, or (b) was filed at a time when a felony complaint charging 13 the same conduct was pending in a local criminal court, and in which 14 such local criminal court or a superior court judge has issued an order 15 of recognizance, release under non-monetary conditions or, where author- 16 ized, bail which is still effective, the superior court's order may be 17 in the form of a direction continuing the effectiveness of the previous 18 order. 19 [3. In cases other than as described in subdivision four of this20section the court shall release the principal pending trial on the prin-21cipal's own recognizance, unless the court finds on the record or in22writing that release on the principal's own recognizance will not23reasonably assure the principal's return to court. In such instances,24the court shall release the principal under non-monetary conditions,25selecting the least restrictive alternative and conditions that will26reasonably assure the principal's return to court. The court shall27explain its choice of alternative and conditions on the record or in28writing.294. Where the principal stands charged with a qualifying offense, the30court, unless otherwise prohibited by law, may in its discretion release31the principal pending trial on the principal's own recognizance or under32non-monetary conditions, fix bail, or, where the defendant is charged33with a qualifying offense which is a felony, the court may commit the34principal to the custody of the sheriff. The court shall explain its35choice of release, release with conditions, bail or remand on the record36or in writing. A principal stands charged with a qualifying offense for37the purposes of this subdivision when he or she stands charged with:38(a) a felony enumerated in section 70.02 of the penal law, other than39burglary in the second degree as defined in subdivision two of section40140.25 of the penal law or robbery in the second degree as defined in41subdivision one of section 160.10 of the penal law;42(b) a crime involving witness intimidation under section 215.15 of the43penal law;44(c) a crime involving witness tampering under section 215.11, 215.1245or 215.13 of the penal law;46(d) a class A felony defined in the penal law, other than in article47two hundred twenty of such law with the exception of section 220.77 of48such law;49(e) a felony sex offense defined in section 70.80 of the penal law or50a crime involving incest as defined in section 255.25, 255.26 or 255.2751of such law, or a misdemeanor defined in article one hundred thirty of52such law;53(f) conspiracy in the second degree as defined in section 105.15 of54the penal law, where the underlying allegation of such charge is that55the defendant conspired to commit a class A felony defined in article56one hundred twenty-five of the penal law;A. 9885 7 1(g) money laundering in support of terrorism in the first degree as2defined in section 470.24 of the penal law; money laundering in support3of terrorism in the second degree as defined in section 470.23 of the4penal law; or a felony crime of terrorism as defined in article four5hundred ninety of the penal law, other than the crime defined in section6490.20 of such law;7(h) criminal contempt in the second degree as defined in subdivision8three of section 215.50 of the penal law, criminal contempt in the first9degree as defined in subdivision (b), (c) or (d) of section 215.51 of10the penal law or aggravated criminal contempt as defined in section11215.52 of the penal law, and the underlying allegation of such charge of12criminal contempt in the second degree, criminal contempt in the first13degree or aggravated criminal contempt is that the defendant violated a14duly served order of protection where the protected party is a member of15the defendant's same family or household as defined in subdivision one16of section 530.11 of this article; or17(i) facilitating a sexual performance by a child with a controlled18substance or alcohol as defined in section 263.30 of the penal law, use19of a child in a sexual performance as defined in section 263.05 of the20penal law or luring a child as defined in subdivision one of section21120.70 of the penal law.225. Notwithstanding the provisions of subdivisions three and four of23this section, with] 3. With respect to any charge for which bail or 24 remand is not ordered, and for which the court would not [or could not] 25 otherwise require bail or remand, a defendant may, at any time, request 26 that the court set bail in a nominal amount requested by the defendant 27 in the form specified in paragraph (a) of subdivision one of section 28 520.10 of this title; if the court is satisfied that the request is 29 voluntary, the court shall set such bail in such amount. 30 [6.] 4. Notwithstanding the provisions of [subdivisions] subdivision 31 two[, three and four] of this section, a superior court may not order 32 recognizance, release under non-monetary conditions or, where author- 33 ized, bail, or permit a defendant to remain at liberty pursuant to an 34 existing order, after the defendant has been convicted of either: (a) a 35 class A felony or (b) any class B or class C felony as defined in arti- 36 cle one hundred thirty of the penal law committed or attempted to be 37 committed by a person eighteen years of age or older against a person 38 less than eighteen years of age. In either case the court must commit or 39 remand the defendant to the custody of the sheriff. 40 [7.] 5. Notwithstanding the provisions of [subdivisions] subdivision 41 two[, three and four] of this section, a superior court may not order 42 recognizance, release under non-monetary conditions or, where author- 43 ized, bail when the defendant is charged with a felony unless and until 44 the district attorney has had an opportunity to be heard in the matter 45 and such court and counsel for the defendant have been furnished with a 46 report as described in subparagraph (ii) of paragraph (b) of subdivision 47 two of section 530.20 of this article. 48 § 12. This act shall take effect immediately.