S T A T E   O F   N E W   Y O R K
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                                  10546

                          I N  A S S E M B L Y

                              June 1, 2016
                               ___________

Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Lentol) --
  read once and referred to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to judicial bail
  determinations and securing orders

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 500.10 of the criminal procedure law is amended by
adding three new subdivisions 21, 22 and 23 to read as follows:
  21. "RISK ASSESSMENT TOOL" MEANS A VALIDATED STATISTICAL  METHODOLOGY,
DEVELOPED  BASED ON AN ANALYSIS OF EMPIRICAL DATA AND RISK FACTORS, THAT
PROVIDES RISK SCORES ASSESSING A DEFENDANT'S RISK OF FAILURE  TO  APPEAR
IN COURT WHEN REQUIRED AND RISK OF DANGER TO OTHER PERSONS OR THE COMMU-
NITY WHILE ON PRETRIAL RELEASE.
  22. "RISK OF DANGER TO OTHER PERSONS OR THE COMMUNITY" MEANS THE LIKE-
LIHOOD THAT A DEFENDANT WILL COMMIT A CRIME OF VIOLENCE.
  23.  "CRIME OF VIOLENCE" MEANS (I) A VIOLENT FELONY OFFENSE AS DEFINED
IN SECTION 70.02 OF THE PENAL LAW; (II) ANY CLASS A  FELONY;  (III)  ANY
FELONY  DEFINED  IN ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED TWENTY-FIVE,
ONE HUNDRED THIRTY, ONE HUNDRED  THIRTY-FIVE,  ONE  HUNDRED  SIXTY,  TWO
HUNDRED  FORTY-TWO,  TWO  HUNDRED  SIXTY,  TWO  HUNDRED SIXTY-THREE, TWO
HUNDRED SIXTY-FIVE, FOUR HUNDRED SIXTY OR FOUR  HUNDRED  NINETY  OF  THE
PENAL LAW; (IV) ANY MISDEMEANOR OR FELONY DEFINED IN ARTICLE ONE HUNDRED
THIRTY OR ONE HUNDRED FIFTY OF THE PENAL LAW; (V) ANY ACT CONSTITUTING A
VIOLATION  OF  SECTION  140.17,  140.25, 140.30, 195.07, 195.17, 215.15,
215.16, 215.17, 230.13, 230.33, 230.34 OR 240.06 OF THE  PENAL  LAW;  OR
(VI)  ANY FAMILY OFFENSE AS DEFINED IN SECTION 530.11 OF THIS TITLE THAT
IS NOT OTHERWISE COVERED BY THIS SUBDIVISION AND THAT CONSTITUTES STALK-
ING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALKING IN  THE
THIRD  DEGREE,  STALKING  IN  THE FOURTH DEGREE, CRIMINAL OBSTRUCTION OF
BREATHING OR BLOOD CIRCULATION, ASSAULT IN THE THIRD  DEGREE,  ATTEMPTED
ASSAULT  OR  COERCION  IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISIONS
ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW.
  S 2. The criminal procedure law is amended by  adding  a  new  section
510.16 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15652-02-6

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S 510.16 ASSESSMENT OF FLIGHT RISK AND RISK OF DANGER.
  1.  WHEN  A PRINCIPAL WHO IS A DEFENDANT INITIALLY COMES UNDER CONTROL
OF THE COURT, THE PRINCIPAL'S RISK OF FAILURE TO APPEAR  IN  COURT  WHEN
REQUIRED  AND,  IN  THE  CASE  OF  A  PRINCIPAL CHARGED BY AN ACCUSATORY
INSTRUMENT WITH A CRIME OF VIOLENCE, THE PRINCIPAL'S RISK OF  DANGER  TO
OTHER  PERSONS  OR  THE  COMMUNITY  WHILE  ON  PRETRIAL RELEASE, MUST BE
ASSESSED ON THE BASIS OF ANY RELEVANT FACTORS  CONSISTENT  WITH  SECTION
510.30  OF  THIS ARTICLE, INCLUDING BUT NOT LIMITED TO THE USE OF A RISK
ASSESSMENT TOOL, PRIOR TO THE COURT RELEASING THE PRINCIPAL ON THE PRIN-
CIPAL'S OWN RECOGNIZANCE, FIXING BAIL, OR REMANDING THE PRINCIPAL TO THE
CUSTODY OF THE SHERIFF.
  2. SUCH RISK ASSESSMENT TOOL SHALL BE SELECTED AND ADMINISTERED BY  AN
ENTITY, AGENCY, OR OFFICER DESIGNATED BY EITHER: (I) THE CHIEF EXECUTIVE
OF  THE COUNTY IN WHICH THE COURT IS LOCATED; (II) WHERE A CITY CONTAINS
MORE THAN ONE COUNTY, THE MAYOR OF SUCH CITY; OR (III) WHERE THE  COUNTY
DOES NOT HAVE A CHIEF EXECUTIVE, THE GOVERNING BODY OF SUCH COUNTY.
  3.  SUCH  DESIGNATED ENTITY, AGENCY, OR OFFICER SHALL ENSURE THAT SUCH
RISK ASSESSMENT TOOL IS (I) DEVELOPED IN CONSULTATION  WITH  INDIVIDUALS
WITH  PROFESSIONAL RESEARCH EXPERIENCE AND EXPERTISE IN CRIMINAL JUSTICE
AS WELL AS APPLIED MATHEMATICS, PSYCHOMETRICS  AND/OR  STATISTICS;  (II)
SUBJECT  TO PERIODIC EMPIRICAL VALIDATION TO ENSURE ITS RELIABILITY; AND
(III) ANALYZED, TO THE GREATEST EXTENT POSSIBLE, TO EVALUATE ANY  DISPA-
RATE IMPACT ON OUTCOMES BASED ON RACE, SEX, SEXUAL ORIENTATION, NATIONAL
ORIGIN,  ECONOMIC  STATUS,  AND  ANY  CONSTITUTIONALLY  PROTECTED CLASS,
REGARDING THE USE OF SUCH INSTRUMENT. SUCH DESIGNATED ENTITY, AGENCY, OR
OFFICER SHALL TAKE INTO CONSIDERATION ANY RECOMMENDATIONS GIVEN BY  SUCH
DEVELOPER  INVOLVING  IMPROVEMENTS THAT COULD BE MADE TO SUCH INSTRUMENT
AND TO THE PROCESS FOR ASSESSING PRINCIPALS USING THE INSTRUMENT.
  4. NOTWITHSTANDING ANY PROVISION OF LAW TO  THE  CONTRARY,  ANY  COURT
SHALL PROVIDE SUCH DESIGNATED ENTITY, AGENCY OR OFFICER WITH SUCH INFOR-
MATION, IN THE TIME AND MANNER REASONABLY REQUIRED BY SUCH ENTITY, AGEN-
CY OR OFFICER, AS IT IS NECESSARY TO DETERMINE THE VALIDITY AND EFFICACY
OF  A  RISK  ASSESSMENT  TOOL  AND  TO  ANALYZE  ANY DISPARATE IMPACT ON
OUTCOMES IN ACCORDANCE WITH THIS SECTION. SUCH INFORMATION SHALL BE USED
AND SHARED ONLY FOR THE PURPOSES OF THIS SECTION AND IN ACCORDANCE  WITH
THIS  SECTION,  IN  A  MANNER  THAT  PROTECTS THE CONFIDENTIALITY OF THE
INFORMATION. THE SHARING,  USE,  DISCLOSURE  AND  REDISCLOSURE  OF  SUCH
INFORMATION  TO  ANY  PERSON,  OFFICER, OR OTHER ENTITY NOT SPECIFICALLY
AUTHORIZED TO RECEIVE IT PURSUANT TO THIS SECTION OR ANY  OTHER  LAW  IS
PROHIBITED.
  5.  NOTWITHSTANDING  ANY PROVISION OF LAW TO THE CONTRARY, DATA NECES-
SARY FOR COMPLETION OF A RISK ASSESSMENT TOOL MAY BE  SHARED  AMONG  LAW
ENFORCEMENT,  PROBATION,  OTHER PUBLIC AGENCIES AND THE ATTORNEY FOR THE
DEFENDANT UPON RETENTION OR APPOINTMENT SOLELY FOR THE PURPOSE OF  ACCU-
RATE COMPLETION AND SUBSEQUENT LAWFUL USE OF SUCH INSTRUMENT, AND A COPY
OF  THE  COMPLETED  RISK ASSESSMENT TOOL SHALL BE MADE AVAILABLE TO SUCH
ATTORNEY AND THE APPLICABLE COURT.
  S 3. The section heading of section 510.20 of the  criminal  procedure
law is amended and a new subdivision 3 is added to read as follows:
  Application for recognizance or bail; making and determination thereof
in general; DETERMINATION OF RISK OF DANGER FOR CERTAIN SECURING ORDERS.
  3.  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, WITH RESPECT TO ANY
PRINCIPAL WHO IS A DEFENDANT THAT IS CHARGED BY AN ACCUSATORY INSTRUMENT
WITH A CRIME OF VIOLENCE, A COURT MAY ISSUE A SECURING ORDER THAT DENIES
AN APPLICATION FOR RECOGNIZANCE OR BAIL AND COMMITS THE PRINCIPAL TO, OR
RETAINS THE PRINCIPAL IN, THE CUSTODY OF THE SHERIFF, OR  MAY  OTHERWISE

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ISSUE A SECURING ORDER PROVIDING FOR SUCH COMMITMENT OR RETENTION PURSU-
ANT TO THIS ARTICLE, BASED UPON THE COURT'S DETERMINATION THAT THE PRIN-
CIPAL POSES A RISK OF DANGER TO OTHER PERSONS OR THE COMMUNITY. A SECUR-
ING  ORDER  BASED UPON SUCH DETERMINATION MUST BE SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE, WITH THE REASONS FOR THE  ISSUANCE  OF  SUCH  ORDER
STATED  ON  THE RECORD.  PRIOR TO MAKING A DETERMINATION ON WHETHER SUCH
AN ORDER WILL BE ISSUED, THE COURT MUST, UPON THE REQUEST OF THE PRINCI-
PAL, HOLD A HEARING WITH RESPECT TO WHETHER THE PRINCIPAL POSES  SUCH  A
RISK.  AT SUCH HEARING, THE COURT SHALL RECEIVE ANY RELEVANT, ADMISSIBLE
EVIDENCE  NOT  LEGALLY  PRIVILEGED.  THE  PRINCIPAL  MAY   CROSS-EXAMINE
WITNESSES  AND  MAY PRESENT RELEVANT, ADMISSIBLE EVIDENCE ON THE PRINCI-
PAL'S OWN BEHALF. SUCH HEARING MAY BE CONSOLIDATED WITH,  AND  CONDUCTED
AT  THE  SAME  TIME  AS,  ANY OTHER CRIMINAL PROCEEDING. A TRANSCRIPT OF
TESTIMONY TAKEN BEFORE THE GRAND JURY UPON PRESENTATION OF  ANY  PENDING
CHARGED  CRIME  SHALL  BE ADMISSIBLE AS EVIDENCE DURING THE HEARING. THE
DISTRICT ATTORNEY MAY MOVE  TO  INTRODUCE  GRAND  JURY  TESTIMONY  OF  A
WITNESS IN LIEU OF THAT WITNESS' APPEARANCE AT THE HEARING.
  S  4.  The  opening  paragraph  of  paragraph  (a) of subdivision 2 of
section 510.30 of the criminal procedure  law  is  amended  to  read  as
follows:
  With  respect  to  any principal, the court must consider the kind and
degree of control or restriction that is necessary to secure  [his]  THE
PRINCIPAL'S court attendance when required.  WITH RESPECT TO ANY PRINCI-
PAL  WHO IS CHARGED WITH A CRIME OF VIOLENCE, THE COURT MAY ADDITIONALLY
CONSIDER THE RISK OF DANGER TO OTHER PERSONS OR THE COMMUNITY  POSED  BY
THE  PRINCIPAL,  PROVIDED  THAT  THE COURT SHALL COMPLY WITH SUBDIVISION
THREE OF SECTION 510.20 OF THIS ARTICLE PRIOR TO  ISSUING  ANY  SECURING
ORDER  DENYING AN APPLICATION FOR RECOGNIZANCE OR BAIL ON THE BASIS THAT
THE PRINCIPAL POSES A RISK OF DANGER TO OTHER PERSONS OR THE  COMMUNITY.
In  determining  that  matter, the court must, on the basis of available
information, consider and take into account:
  S 5. Subparagraph (ix) of paragraph (a) of subdivision  2  of  section
510.30 of the criminal procedure law, as renumbered by section 1 of part
D  of chapter 491 of the laws of 2012, is amended and a new subparagraph
(x) is added to read as follows:
  (ix) If he is a defendant, the sentence  which  may  be  or  has  been
imposed upon conviction[.]; AND
  (X) THE SCORES PROVIDED BY ANY RISK ASSESSMENT TOOL, WHERE APPLICABLE.
  S 6. Section 510.40 of the criminal procedure law is amended by adding
a new subdivision 1-a to read as follows:
  1-A.  A  SECURING  ORDER  ISSUED  PURSUANT  TO SUBDIVISION ONE OF THIS
SECTION MUST REPRESENT THE  LEAST  RESTRICTIVE  OPTION  THAT  REASONABLY
ASSURES THE PRINCIPAL'S APPEARANCE IN COURT WHEN REQUIRED AND, FOR PRIN-
CIPALS  WHO  ARE  SUBJECT TO SUBDIVISION THREE OF SECTION 510.20 OF THIS
ARTICLE, IS NOT INCONSISTENT WITH ANY DETERMINATION MADE  BY  THE  COURT
PURSUANT  TO SUCH SUBDIVISION; PROVIDED THAT NOTHING IN THIS SUBDIVISION
SHALL AFFECT THE AUTHORITY OF THE COURT  PURSUANT  TO  SECTIONS  530.11,
530.12  AND  530.13  OF  THIS  TITLE. FOR THE PURPOSE OF DETERMINING THE
LEAST RESTRICTIVE OPTION THAT REASONABLY ASSURES THE PRINCIPAL'S APPEAR-
ANCE IN COURT WHEN REQUIRED, THE COURT, WHEN CONSIDERING WHETHER TO  FIX
BAIL  AND  THE  FORM  OF  BAIL TO BE FIXED, MUST CONSIDER WHETHER A LESS
RESTRICTIVE FORM OF BAIL  DEFINED  IN  SECTION  520.10  OF  THIS  TITLE,
INCLUDING  BUT  NOT  LIMITED  TO  AN UNSECURED APPEARANCE BOND, WOULD BE
SUFFICIENT IN REASONABLY ASSURING SUCH PRINCIPAL'S APPEARANCE.

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  S 7. Subdivision 1 of section 530.20 of the criminal procedure law, as
amended by chapter 531 of the laws  of  1975,  is  amended  to  read  as
follows:
  1.  When the defendant is charged, by information, simplified informa-
tion, prosecutor's information or misdemeanor complaint, with an offense
or offenses of less than felony grade only, the court must PRESUMPTIVELY
order recognizance [or] UNLESS THE COURT DETERMINES THAT SUCH A SECURING
ORDER  WILL  NOT REASONABLY SECURE THE DEFENDANT'S COURT ATTENDANCE WHEN
REQUIRED, IN WHICH EVENT THE COURT SHALL ORDER bail.
  S 8. Section 530.20 of the criminal procedure law is amended by adding
a new subdivision 3 to read as follows:
  3. A COURT SHALL NOT ORDER RECOGNIZANCE OR BAIL IF SUCH ORDER WOULD BE
INCONSISTENT WITH A DETERMINATION MADE PURSUANT TO SUBDIVISION THREE  OF
SECTION 510.20 OF THIS TITLE.
  S 9. Section 530.30 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4. A SUPERIOR COURT JUDGE SHALL NOT ORDER RECOGNIZANCE OR BAIL IF SUCH
ORDER WOULD BE INCONSISTENT WITH A DETERMINATION MADE PURSUANT TO SUBDI-
VISION THREE OF SECTION 510.20 OF THIS TITLE.
  S 10. Subdivision 1 of section 530.40 of the criminal procedure law is
amended and a new subdivision 5 is added to read as follows:
  1.  When  the defendant is charged with an offense or offenses of less
than felony grade only, the court must PRESUMPTIVELY order  recognizance
[or]  UNLESS  THE  COURT  DETERMINES THAT SUCH A SECURING ORDER WILL NOT
REASONABLY SECURE THE DEFENDANT'S COURT  ATTENDANCE  WHEN  REQUIRED,  IN
WHICH EVENT THE COURT SHALL ORDER bail.
  5. A SUPERIOR COURT SHALL NOT ORDER RECOGNIZANCE OR BAIL IF SUCH ORDER
WOULD  BE INCONSISTENT WITH A DETERMINATION MADE PURSUANT TO SUBDIVISION
THREE OF SECTION 510.20 OF THIS TITLE.
  S 11. Subdivision 2 of section 530.60 of the criminal  procedure  law,
as added by chapter 788 of the laws of 1981, paragraph (a) as amended by
chapter 794 of the laws of 1986, is amended to read as follows:
  2.  (a)  Whenever  in  the course of a criminal action or proceeding a
defendant charged with the commission of a felony OR A CRIME OF VIOLENCE
is at liberty as a result of an order of  recognizance  or  bail  issued
pursuant  to  this  article  it shall be grounds for revoking such order
that the court finds reasonable cause to believe the defendant committed
[one or more specified class A or violent felony offenses or intimidated
a victim or witness in violation of sections 215.15, 215.16 or 215.17 of
the penal law] A CRIME OF VIOLENCE while at liberty. Before revoking  an
order  of  recognizance  or bail pursuant to this subdivision, the court
must hold a hearing and shall receive any relevant, admissible  evidence
not  legally  privileged.  The defendant may cross-examine witnesses and
may present relevant, admissible evidence on his own behalf. Such  hear-
ing may be consolidated with, and conducted at the same time as, a felo-
ny  hearing  conducted  pursuant  to  article one hundred eighty of this
chapter OR ANY OTHER CRIMINAL  PROCEEDING.  A  transcript  of  testimony
taken  before the grand jury upon presentation of the subsequent offense
shall be admissible as evidence during the hearing.  The district attor-
ney may move to introduce grand jury testimony of a witness in  lieu  of
that witness' appearance at the hearing.
  (b)  Revocation  of  an  order  of recognizance or bail and commitment
pursuant to this subdivision shall be for the following periods, either:
  (i) For a period not to exceed ninety days exclusive of any periods of
adjournment requested by the defendant; or

A. 10546                            5

  (ii) Until the charges contained within the accusatory instrument have
been reduced or dismissed such that no count remains which  charges  the
defendant with commission of a felony OR CRIME OF VIOLENCE; or
  (iii) Until reduction or dismissal of the charges contained within the
accusatory instrument charging the subsequent offense such that no count
remains  which  charges  the  defendant with commission of a [class A or
violent felony offense] CRIME OF VIOLENCE.
  Upon expiration of any of the  three  periods  specified  within  this
paragraph,  whichever  is  shortest, the court may grant or deny release
upon an order of bail or recognizance in accordance with the  provisions
of  this  article.  Upon conviction [to] OF an offense the provisions of
article five hundred thirty of this chapter shall apply.
  (c) Notwithstanding the provisions of paragraph (a) of  this  subdivi-
sion  a  defendant,  against  whom  [a  felony  complaint] AN ACCUSATORY
INSTRUMENT has been filed which charges the defendant with commission of
a [class A or violent felony offense] CRIME OF VIOLENCE committed  while
he  was at liberty as specified therein, may be committed to the custody
of the sheriff pending a revocation hearing for a period not  to  exceed
seventy-two  hours. An additional period not to exceed seventy-two hours
may be granted by the court upon application of  the  district  attorney
upon  a showing of good cause or where the failure to commence the hear-
ing was due to the defendant's request or  occurred  with  his  consent.
Such  good  cause  must  consist of some compelling fact or circumstance
which precluded conducting the hearing  within  the  initial  prescribed
period.
  S  12.  This  act  shall  take effect on the one hundred twentieth day
after it shall have become a law.