BILL NUMBER: S1353

SPONSOR: SERINO
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to factors for
the issuance of an order of recognizance or bail

 
PURPOSE OR GENERAL IDEA OF BILL:

The bill will help protect more victims of domestic violence by expand-
ing criminal procedure law section 510.30. The bill will require the
court, when determining recognizance or bail in cases of domestic
violence, to consider certain additional enumerated factors.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one amends subparagraph (vii) of paragraph (a) subdivision 2 of
section 510.30 of the criminal procedure law, as added by section 1 of
part D of chapter 491 of the laws of 2012, to require the court in the
issuance of recognizance or bail as a matter of discretion in cases of
              

domestic violence to consider the additional factors: any history of
prior acts of violence or threats of violence against a witness in the
criminal proceeding; any order of protection issued against the princi-
pal for the protection of a member or members of the same family or
household, as defined in section 530.11(1) of the criminal procedure
law, whether or not such order is currently in effect; and any prior
arrest or conviction for a crime or violation against a member or
members of the same family or household, as defined in section 530.11(1)
of the criminal procedure law.

Section two provides the effective date as sixty days after the act
shall become law.

 
JUSTIFICATION:

Domestic violence is a societal problem of enormous prevalence and
impact, consuming law enforcement and the courts in this State.  New
York State has been in the forefront of addressing this problem by pass-
ing many progressive laws over the past several years, including the
mandatory arrest law, the law creating the registry of orders of
protection, an anti-stalking law, and a law requiring judges to consider
evidence of domestic violence in all child custody and visitation cases.
However, one important area of the law continues to need to be updated
to take into account the unique nature of domestic violence offenses:
New York's bail provisions.

Perpetrators of domestic violence offenses are often set free on low or
no bail and thereby allowed to stalk, harm and sometimes kill their
specifically targeted victims. In December 2002, a perpetrator of domes-
tic violence was released on $1,500 bail by a city judge in Westchester
County after an attempted assault with a gun on his former girlfriend.
Within days after his release on bail, the perpetrator shot his former
girlfriend in the head and killed himself. If judges determining recog-
nizance and bail in domestic violence cases were required to consider
well-established risk factors to the victim such as prior orders of
protection, not just violations of an order of protection, many victims
and their children would be spared additional harm and, in some tragic
incidences, their lives.
The bail statute currently does not consider the unique nature of domes-
tic violence cases. The criminal who commits a street crime against a
stranger, for example, is not likely to target the victim for additional
criminal activity while the case is pending and afterwards. Precisely
the reverse is true for domestic violence perpetrators, who are highly
likely to do so. Those who commit acts of domestic violence do so to
exercise power and control over their specific victim, with whom they
have a relationship. Domestic violence has a high rate of recidivism,
and tends to escalate in frequency and severity over time. The initi-
ation of a court case against the perpetrator is a high-risk time for
the victim, who is perceived by the abuser as trying to escape the
relationship.  Perpetrators often threaten and harm their victims during
the pendency of the case in order to force them not to cooperate with
the prosecution and to reconcile.

New York law does not allow the bail determination to be used for
"preventive detention," in order to protect the public from a general-
ized threat of further criminal activity by an accused.  However, New
York law does permit the bail determination to be used when necessary to
protect witnesses to the crime. Domestic violence cases fall squarely
within this rule because the victim of the offense is the key and some-
times the only witness and, as noted above, is highly likely to be
targeted by the perpetrator for further threats or harm. Thus, in domes-
tic violence cases, it is essential that the judge determining recogni-
zance or bail consider factors that indicate a risk of harm to the
victim-witness. This bill offers guidance to judges by specifying the
factors of any history of prior acts of violence or threats of violence
against a witness in the criminal proceeding, any order of protection
issued against the principal for the protection of a family or household
member, whether or not such order is currently in effect, and any prior
arrest or conviction for a crime or violation against a family or house-
hold member.

Bail reform is necessary to protect the victim-witness of domestic
offenses. Current bail provisions must be improved to reflect the reali-
ty of the lives of domestic violence victims.

 
LEGISLATIVE HISTORY:

S.8688, 2018, Referred to Codes
A.6775, 2015 and 2016, referred to codes.
A.251-C, 2011 amended and recommitted to codes and 2012 referred to
rules.
Same as S.1414-B 2011 passed Senate and 2012 committed to rules.
A. 754, 2009 and 2010 referred to codes.
A.747, 2007 and 2008 referred to codes. Same as S.1080, referred to
codes.
A.1015, 2005 and 2006 referred to codes. Same as S.310, 2005 committed
to rules and 2006 referred to codes.
A.9274, 2004 referred to codes. Same as S.6178, 2004 passed Senate.

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
Sixty days following the date of enactment.