BILL NUMBER: S2608
TITLE OF BILL :
An act to amend the criminal procedure law, in relation to denial of
recognizance or bail in certain cases
PURPOSE OR GENERAL IDEA OF BILL :
This bill would seek to curtail pretrial release on recognizance or
bail of persons charged with crimes of violence who have certain prior
felony convictions or who are charged with committing a crime of
violence while at liberty on recognizance or bail for another felony.
This bill would prohibit the release of persons charged with dangerous
felonies where their prior involvement with the criminal justice
system furnishes ample evidence of the fact that the present charge is
not an isolated incident of serious involvement In effect, it would
strike at the core of one of the most serious threats to public safety
today: the failure to recognize public safety as a criterion in
deciding pretrial release matters.
SUMMARY OF SPECIFIC PROVISIONS :
This bill amends the recognizance and bail articles of the Criminal
Procedure Law. It adds a new definition, "person who must be committed
to the custody of the sheriff", to establish the criteria for
prohibition of bail or recognizance.
These criteria consist of two basic factors: (1) a crime of violence;
and (2) prior serious involvement with the criminal justice system.
The crimes covered are as follows:
* Murder first or second degree
* Kidnapping first or second degree * Arson first or second degree
* Aggravated assault upon a police officer or a peace officer
* Criminal use of a firearm in the first or second degree
* Rape or sodomy first degree
* Robbery or burglary first degree
* Robbery or burglary second degree (certain cases)
* Manslaughter first degree
The prior involvement criteria are:
* Prior conviction of any of the above
* Prior conviction of any other felony committed within previous five
* On recognizance or bail for a felony at time one of the above crimes
Where these criteria are present a local criminal court cannot grant
release on bail or recognizance. A defendant may, however, apply to a
county court judge or supreme court justice who will have the
authority to consider granting release if he finds one or more of the
* Mitigating circumstances that bear directly upon the manner in which
the crime was committed
* No serious harm was cause or threatened
* Where the defendant was not the sole participant in the crime, his
participation was relatively minor
The court would have discretion to conduct a hearing and, if the court
does not grant release, the court would be required to specify the
reason for its decision publicly on the record.
A superior court also would be permitted to consider release of the
defendant if the prosecution fails to adhere to a stepped up timetable
for trial as specified in the new law. Thus, if an opportunity for
trial is not afforded the defendant within sixty days from the date of
arrest, a county or supreme court may grant recognizance or bail in
its discretion in accordance with the criteria it ordinarily would
utilize. The sixty day period would, of course, be computed after
excluding delays encountered by actions or motions on the part of the
defendant There also is a provision that permits release if the people
do not at any time proceed with due diligence and are unable to show
good cause for such failure, but good cause will not include. shortage
of judicial or nonjudicial personnel or shortage of courtroom
availability. Here too, the court would have the power to take
evidence and the court would be required to specify the reasons for
its decision to release on the public record.
In connection with the above noted stepped up time schedule, it is
relevant to observe that the criteria are not the same as the present
speedy trial ready rule which would remain unchanged by this bill.
That rule (Criminal Procedure Law, §30.30) requires that a defendant
be released on bail or recognizance if the people are not ready for
trial within 90 days, but it does not apply where the reason for delay
is lack of court resources.
Although no precise records are available it is well known that a
substantial portion of crime is attributable to persons with prior
felony convictions and persons who are at liberty on bail or
recognizance awaiting trial on a previous accusation.
Some reports have noted that 80% of all persons convicted of robbery
have at least one prior felony arrest. In addition, one study revealed
that in a given year, more than 2,000 persons arrested in New York
City for new crimes were already wanted under bench warrants issued
for absconding from recognizance or bail granted on a prior felony
charge. This does not include the number arrested for new crimes
before absconder warrants were issued on previous pending cases or the
number who were not yet apprehended.
In cases where studies have been made the results have been
characterized as "startling". In his successful move to have the U.S.
Senate incorporate the concept of "danger to the community" as a
factor in Federal pretrial release, Senator Dole observed
(Congressional Record, 1-23-78,S.282): "Several academic studies of
the continuing criminal habits of persons granted pretrial release
have revealed startling conclusions. The institute for law and social
research found that 26 percent of all felonies committed in the
District of Columbia were committed by a person on some form of
conditional release, Defendants have rights and those rights should be
jealously guarded. But the public has rights too".
The courts, as well as the public, are looking to the legislature for
an expression of State policy. It is not sufficient or even honorable
to continue to express that policy through ad hoc criticism of
judicial bail decisions which are made without legislative guidance.
Since our highest court has repeatedly indicated that the denial of
bail in a felony case is not unconstitutional, and that the question
of when bail should be granted is a matter left to the Legislature, it
seems clear that public protection requires the Legislature to
squarely face the issue (see PEOPLE EX REL. SHAPIRO V. KEEPER OF
CITY PRISON, ET AL 290 NY 393 (1943); PEOPLE EX REL. KLEIN V.
KRUGER, 25 NY2d 497 (1969)).
The legislative responsibility must be met. Public safety cries out
for action now.
PRIOR LEGISLATIVE HISTORY :
1999/00: A.5568 Referred to Codes Committee.
2001/02: A.6295 Referred to Codes Committee.
2003/04: A.5700 Referred to Codes Committee.
2005/06: A.4722 Held for consideration in Codes.
2007: S.4417 Passed Senate/A.4566 Assembly Codes Cmte.
2008: S.4417 Senate Codes Cmte/A.4566 Assembly Codes Cmte.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
Additional court parts and ancillary services (prosecutorial and
defense) would be needed to provide more prompt opportunities for
trial. Additional detention space would also have to be made available
in certain places. However, New York City, for example, appears to
have available vacant spaces at the present time that might be used
EFFECTIVE DATE :
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.
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