S T A T E O F N E W Y O R K
________________________________________________________________________
8820
2017-2018 Regular Sessions
I N A S S E M B L Y
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:
Section 1. Legislative intent. The purpose of this legislation is to
reform the process by which courts in the state of New York evaluate
applications by criminal defendants who seek release on their own recog-
nizance. New York's current bail statute has been applied in a manner
that has led to unsatisfactory levels of pre-trial detention. The
purpose of this legislation is to ensure decarceration and release of
individuals on their own recognizance in the overwhelming majority of
criminal cases by applying a rebuttable presumption of recognizance.
Courts in New York must consider only admissible evidence at recogni-
zance hearings and must apply the least restrictive measures to ensure
an individual's return to court.
§ 2. Subdivisions 3, 6 and 7 of section 500.10 of the criminal proce-
dure law are amended to read as follows:
3. ["Fix bail." A court fixes bail when, having acquired control over
the person of a principal, it designates a sum of money and stipulates
that, if bail in such amount is posted on behalf of the principal and
approved, it will permit him to be at liberty during the pendency of the
criminal action or proceeding involved] "RECOGNIZANCE HEARING" MEANS A
HEARING BEFORE THE COURT WHERE THE PRINCIPAL APPEARS FOR THE PURPOSES OF
THE COURT CONSIDERING RECOGNIZANCE OR COMMITTING THE PRINCIPAL TO THE
CUSTODY OF THE SHERIFF.
6. "Order of recognizance [or bail]" means a securing order releasing
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
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7. "Application for recognizance [or bail]" means an application by a
principal [that] TO the court[, instead of committing him to or retain-
ing him in] THAT THE PRINCIPAL BE RELEASED INSTEAD OF COMMITTED TO the
custody of the sheriff[, either release him on his own recognizance or
fix bail].
§ 3. Subdivisions 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of
section 500.10 of the criminal procedure law are REPEALED and subdivi-
sion 20 is renumbered subdivision 8.
§ 4. Section 510.10 of the criminal procedure law, as amended by chap-
ter 459 of the laws of 1984, is amended to read as follows:
§ 510.10 Securing order; when required.
1. When a principal, whose future court attendance at a criminal
action or proceeding is or may be required, initially comes under the
control of a court, such court must, by a securing order, either release
him OR HER on his OR HER own recognizance[, fix bail] or commit him OR
HER to the custody of the sheriff. EVERY COURT WHEN CONSIDERING AN
APPLICATION FOR RECOGNIZANCE OR COMMITTING THE PRINCIPAL TO THE CUSTODY
OF THE SHERIFF MUST APPLY A REBUTTABLE PRESUMPTION OF RECOGNIZANCE, WITH
THE EXCEPTION OF THE FOLLOWING FELONY CHARGES WHERE THERE IS A REBUTTA-
BLE PRESUMPTION OF COMMITMENT TO THE CUSTODY OF THE SHERIFF:
(A) CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN SECTION 125.10 OF THE
PENAL LAW;
(B) AGGRAVATED CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN SECTION
125.11 OF THE PENAL LAW;
(C) MURDER IN THE SECOND DEGREE AS DEFINED IN SECTION 125.25 OF THE
PENAL LAW;
(D) AGGRAVATED MURDER AS DEFINED IN SECTION 125.26 OF THE PENAL LAW;
(E) MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF THE
PENAL LAW;
(F) RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35 OF THE PENAL
LAW;
(G) COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS
DEFINED IN SECTION 130.75 OF THE PENAL LAW;
(H) PREDATORY SEXUAL ASSAULT AS DEFINED IN SECTION 130.95 OF THE PENAL
LAW;
(I) PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS DEFINED IN SECTION
130.96 OF THE PENAL LAW;
(J) KIDNAPPING IN THE FIRST DEGREE AS DEFINED IN SECTION 135.25 OF THE
PENAL LAW;
(K) ARSON IN THE FIRST DEGREE AS DEFINED IN SECTION 150.20 OF THE
PENAL LAW;
(L) CRIMINAL POSSESSION OF A WEAPON IN THE FIRST DEGREE AS DEFINED IN
SECTION 265.04 OF THE PENAL LAW;
(M) CRIMINAL SALE OF A FIREARM IN THE FIRST DEGREE AS DEFINED IN
SECTION 265.13 OF THE PENAL LAW;
(N) TERRORISM IN THE SECOND DEGREE AS DEFINED IN SECTION 490.10 OF THE
PENAL LAW;
(O) TERRORISM IN THE FIRST DEGREE AS DEFINED IN SECTION 490.15 OF THE
PENAL LAW;
(P) HINDERING PROSECUTION OF TERRORISM IN THE FIRST DEGREE AS DEFINED
IN SECTION 490.35 OF THE PENAL LAW;
(Q) CRIMINAL POSSESSION OF A CHEMICAL WEAPON OR BIOLOGICAL WEAPON IN
THE SECOND DEGREE AS DEFINED IN SECTION 490.40 OF THE PENAL LAW;
(R) CRIMINAL POSSESSION OF A CHEMICAL OR BIOLOGICAL WEAPON IN THE
FIRST DEGREE AS DEFINED IN SECTION 490.45 OF THE PENAL LAW;
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(S) CRIMINAL USE OF A CHEMICAL OR BIOLOGICAL WEAPON IN THE SECOND
DEGREE AS DEFINED IN SECTION 490.50 OF THE PENAL LAW; OR
(T) CRIMINAL USE OF A CHEMICAL OR BIOLOGICAL WEAPON IN THE FIRST
DEGREE AS DEFINED IN SECTION 490.55 OF THE PENAL LAW.
2. THE COURT SHALL INFORM THE PRINCIPAL THAT THE CONDITIONS OF THE
SECURING ORDER ARE SUBJECT TO MODIFICATION CONSISTENT WITH THE
PROVISIONS OF SECTION 510.25 OF THIS ARTICLE.
3. When a securing order is revoked or otherwise terminated in the
course of an uncompleted action or proceeding but the principal's future
court attendance still is or may be required and he is still under the
control of a court, a new securing order must be issued. When the court
revokes or otherwise terminates a securing order which committed the
principal to the custody of the sheriff, the court shall give written
notification to the sheriff of such revocation or termination of the
securing order.
§ 5. Section 510.20 of the criminal procedure law is amended to read
as follows:
§ 510.20 Application for recognizance [or bail]; [making and] determi-
nation [thereof in general] AND TIMING.
1. Upon any occasion when a court is required to issue a securing
order with respect to a principal, or at any time when a principal is
confined in the custody of the sheriff as a result of a previously
issued securing order, he may make an application for recognizance [or
bail].
2. Upon such application, the principal must be accorded an opportu-
nity to be heard, PRESENT EVIDENCE and to contend that an order of
recognizance [or bail must or should issue, that the court should
release him on his own recognizance rather than fix bail, and that if
bail is fixed it should be in a suggested amount and form] BE ISSUED.
3. THE COURT SHALL MAKE A PRE-TRIAL RELEASE DECISION FOR THE PRINCIPAL
WITHOUT UNNECESSARY DELAY, BUT IN NO CASE LATER THAN FORTY-EIGHT HOURS
AFTER THE PRINCIPAL'S INITIAL COMMITMENT TO JAIL.
§ 6. The criminal procedure law is amended by adding three new
sections 510.25, 510.26 and 510.27 to read as follows:
§ 510.25 PROSECUTOR; MOTION.
THE PROSECUTOR MAY FILE WITH THE COURT AT ANY TIME, INCLUDING AT ANY
TIME BEFORE OR AFTER THE PRINCIPAL'S RELEASE FROM CUSTODY, A MOTION
SEEKING THE PRE-TRIAL DETENTION OF THE PRINCIPAL FOR WHICH THE PROSECU-
TOR SHALL PRESENT EVIDENCE TO THE COURT DEMONSTRATING THAT:
1. THE PRINCIPAL WILL NOT APPEAR IN COURT AS REQUIRED; OR
2. THE PRINCIPAL WILL OBSTRUCT OR ATTEMPT TO OBSTRUCT JUSTICE OR THE
CRIMINAL PROCESS; OR
3. THE PRINCIPAL WOULD THREATEN, INJURE OR INTIMIDATE, A PROSPECTIVE
WITNESS OR JUROR.
§ 510.26 PROSECUTOR; MOTION; EVIDENTIARY STANDARD.
A MOTION TO THE COURT SEEKING PRE-TRIAL DETENTION PURSUANT TO SECTION
510.25 OF THIS ARTICLE MUST SET FORTH ADMISSIBLE EVIDENCE AS DEFINED BY
THIS CHAPTER. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE PRINCI-
PAL BE DETAINED PENDING TRIAL IF THE COURT, UPON CONSIDERATION OF THE
ADMISSIBLE EVIDENCE, DETERMINES BY A PREPONDERANCE OF THE EVIDENCE THAT:
1. NONE OF THE PRE-TRIAL SUPERVISION SERVICES AVAILABLE WOULD ENSURE
THE PRINCIPAL'S APPEARANCE IN COURT WHEN REQUIRED; OR
2. THE PRINCIPAL WOULD INJURE OR INTIMIDATE A PROSPECTIVE WITNESS OR
JUROR IF RELEASED ON HIS OR HER OWN RECOGNIZANCE.
§ 510.27 MOTION FOR REHEARING; SECURING ORDER.
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1. THE PARTIES, AFTER A DETERMINATION BY THE COURT AT A RECOGNIZANCE
HEARING, AT ANY TIME BEFORE TRIAL, MAY SUBMIT A MOTION TO THE COURT
SEEKING TO VACATE OR MODIFY THE SECURING ORDER. A MOTION SEEKING TO
VACATE OR MODIFY A SECURING ORDER MUST INCLUDE ADMISSIBLE EVIDENCE SHOW-
ING A CHANGE OF CIRCUMSTANCES WITH RESPECT TO THE CONDITIONS SET FORTH
IN SECTION 510.25 OF THIS ARTICLE.
2. THE COURT WILL DETERMINE BY A PREPONDERANCE OF THE EVIDENCE
PRESENTED WHETHER THE SECURING ORDER SHOULD BE VACATED OR MODIFIED.
3. THE COURT SHALL REOPEN A RECOGNIZANCE HEARING UPON ITS OWN APPLICA-
TION, AT ANY TIME BEFORE TRIAL, IF THE COURT FINDS THAT INFORMATION
EXISTS THAT WAS NOT KNOWN TO THE PROSECUTOR OR PRINCIPAL AT THE TIME OF
THE RECOGNIZANCE HEARING THAT HAS A MATERIAL BEARING ON THE CONDITIONS
SET FORTH IN SECTION 510.25 OF THIS ARTICLE. THE COURT WILL MAKE THIS
INFORMATION KNOWN TO THE PROSECUTOR AND PRINCIPAL PRIOR TO THE RECOGNI-
ZANCE HEARING.
§ 7. Section 510.30 of the criminal procedure law is REPEALED and a
new section 510.30 is added to read as follows:
§ 510.30 RIGHT TO COUNSEL.
A PRINCIPAL OR DEFENDANT HAS THE RIGHT TO THE AID OF COUNSEL AT A
RECOGNIZANCE HEARING. IF HE OR SHE APPEARS UPON SUCH RECOGNIZANCE HEAR-
ING WITHOUT COUNSEL, HE OR SHE HAS THE FOLLOWING RIGHTS:
1. TO AN ADJOURNMENT FOR THE PURPOSE OF OBTAINING COUNSEL; AND
2. TO HAVE COUNSEL ASSIGNED BY THE COURT IF HE OR SHE IS FINANCIALLY
UNABLE TO OBTAIN THE SAME.
§ 8. Section 510.40 of the criminal procedure law is amended to read
as follows:
§ 510.40 Application for recognizance or [bail] COMMITMENT; [determi-
nation thereof,] form of securing order and execution ther-
eof.
1. An application for recognizance or [bail] COMMITMENT must be
determined by a securing order which either:
(a) Grants the application and releases the principal on his OR HER
own recognizance; or
(b) [Grants the application and fixes bail; or
(c)] Denies the application and commits the principal to, or retains
him OR HER in, the custody of the sheriff.
2. Upon ordering that a principal be released on his OR HER own
recognizance, the court must direct him OR HER to appear in the criminal
action or proceeding involved whenever his OR HER attendance may be
required and to render himself OR HERSELF at all times amenable to the
orders and processes of the court. If such principal is in the custody
of the sheriff [or at liberty upon bail at the time of the order], the
court must direct that he OR SHE be discharged from such custody [or, as
the case may be, that his bail be exonerated]. ANY RESTRICTIONS PLACED
ON A PRINCIPAL RELEASED ON HIS OR HER OWN RECOGNIZANCE MUST BE THE LEAST
RESTRICTIVE THAT WILL ENSURE THE PRINCIPAL'S RETURN TO COURT.
[3. Upon the issuance of an order fixing bail, and upon the posting
thereof, the court must examine the bail to determine whether it
complies with the order. If it does, the court must, in the absence of
some factor or circumstance which in law requires or authorizes disap-
proval thereof, approve the bail and must issue a certificate of
release, authorizing the principal to be at liberty, and, if he is in
the custody of the sheriff at the time, directing the sheriff to
discharge him therefrom. If the bail fixed is not posted, or is not
approved after being posted, the court must order that the principal be
committed to the custody of the sheriff.]
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§ 9. Section 510.50 of the criminal procedure law is amended to read
as follows:
§ 510.50 Enforcement of securing order.
When the attendance of a principal confined in the custody of the
sheriff is required at the criminal action or proceeding at a particular
time and place, the court may compel such attendance by directing the
sheriff to produce him OR HER at such time and place. If the principal
is at liberty on his OR HER own recognizance [or on bail], his OR HER
attendance may be achieved or compelled by various methods, including
notification and the issuance of a bench warrant, prescribed by law in
provisions governing such matters with respect to the particular kind of
action or proceeding involved.
§ 10. The criminal procedure law is amended by adding a new section
510.60 to read as follows:
§ 510.60 STATISTICAL REPORTS.
THE DIVISION OF CRIMINAL JUSTICE SERVICES WILL COMPILE AND PUBLISH
DATA ON THE DISPOSITION OF ALL RECOGNIZANCE HEARINGS IN ALL COURTS,
DISAGGREGATED BY COUNTY AND INCLUDING THE FOLLOWING INFORMATION:
1. THE AGGREGATE NUMBER OF RECOGNIZANCE HEARINGS;
2. THE AGGREGATE NUMBER OF DEFENDANTS AND PRINCIPALS WHO WERE HEARD AT
RECOGNIZANCE HEARINGS;
3. THE RACE, ETHNICITY, AGE AND SEX OF EACH DEFENDANT OR PRINCIPAL;
4. THE CRIMES EACH DEFENDANT OR PRINCIPAL WERE CHARGED WITH; AND
5. THE DISPOSITION OF EACH HEARING WHETHER FOR RECOGNIZANCE OR COMMIT-
MENT.
§ 11. Article 520 of the criminal procedure law is REPEALED.
§ 12. Section 530.10 of the criminal procedure law is amended to read
as follows:
§ 530.10 Order of recognizance [or bail]; in general.
Under circumstances prescribed in [this] article 510 OF THIS TITLE, a
court, upon application of a PRINCIPAL CHARGED WITH A CRIME OR A defend-
ant [charged with or] convicted of an offense, is required or authorized
to order [bail or] recognizance for the release [or prospective release]
of such PRINCIPAL OR defendant, OR COMMITMENT OF SUCH PRINCIPAL OR
DEFENDANT during the pendency of either:
1. A criminal action based upon such charge; or
2. An appeal taken by the defendant from a judgment of conviction or
a sentence or from an order of an intermediate appellate court affirming
or modifying a judgment of conviction or a sentence.
§ 13. Paragraph (a) of subdivision 11 of section 530.12 of the crimi-
nal procedure law, as amended by chapter 222 of the laws of 1994, is
amended to read as follows:
(a) revoke an order of recognizance [or revoke an order of bail or
order forfeiture of such bail] and commit the defendant to custody; or
§ 14. Sections 530.20, 530.30, 530.40, 530.45, 530.50, 530.60, 530.70
and 530.80 of the criminal procedure law are REPEALED.
§ 15. This act shall take effect immediately.