Senate Bill S250

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    250
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by Sens. GALLIVAN, O'MARA -- read twice and ordered printed,
   and when printed to be committed 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:
 
   Section 1. Section 500.10 of the criminal procedure law is amended  by
 adding a new subdivision 23 to read as follows:
   23.  "RISK  AND  NEEDS  ASSESSMENT"  MEANS A RISK AND NEEDS ASSESSMENT
 INSTRUMENT, APPROVED BY THE CHIEF ADMINISTRATIVE JUDGE  OF  THE  UNIFIED
 COURT  SYSTEM.  SUCH  APPROVED ASSESSMENT INSTRUMENT SHALL BE OBJECTIVE,
 STANDARDIZED AND DEVELOPED BASED ON ANALYSIS OF EMPIRICAL DATA AND  RISK
 FACTORS  RELEVANT TO THE PRINCIPAL'S DANGER TO THE COMMUNITY AND RISK OF
 FAILURE OF A PRINCIPAL TO APPEAR. SUCH  APPROVED  ASSESSMENT  INSTRUMENT
 SHALL  NOT  BE  DISCRIMINATORY  BASED ON RACE, NATIONAL ORIGIN, SEX, ANY
 OTHER PROTECTED CLASS OR SOCIOECONOMIC STATUS.
   § 2. Section 510.10 of the  criminal  procedure  law,  as  amended  by
 section  2  of part JJJ of chapter 59 of the laws of 2019, subdivision 1
 as amended by section 1 of subpart C of part UU of  chapter  56  of  the
 laws  of 2022, subdivision 4 as amended by section 2 of part UU of chap-
 ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision  4  as
 amended  and  paragraph  (u)  of  subdivision 4 as added by section 2 of
 subpart B of part UU of chapter 56 of the laws of 2022,  is  amended  to
 read as follows:
 § 510.10 Securing order; when required; alternatives available; standard
            to be applied.
   1.  When  a  principal,  whose  future  court attendance at a criminal
 action or proceeding is or may be required, comes under the control of a
 court, such court shall, in accordance with this title,  by  a  securing
 order [release the principal] REQUEST OF THE APPLICABLE COUNTY PRE-TRIAL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00533-01-3
 S. 250                              2
 
 SERVICES  AGENCY  THAT  A  RISK AND NEEDS ASSESSMENT BE CONDUCTED ON THE
 ELIGIBLE PRINCIPAL AND SUCH COURT SHALL TAKE INTO ACCOUNT THE  RISK  AND
 NEEDS  ASSESSMENT,  BUT SUCH ASSESSMENT SHALL NOT BE THE SOLE DETERMINA-
 TIVE  FACTOR,  FOR  THE  PURPOSE  OF  DETERMINING WHETHER SUCH PRINCIPAL
 SHOULD BE RELEASED on the principal's  own  recognizance,  [release  the
 principal] RELEASED under non-monetary conditions, or, where authorized,
 fix  bail  or commit the principal to the custody of the sheriff. In all
 such cases, except where another type of securing order is shown  to  be
 required  by law, the court shall release the principal pending trial on
 the principal's own recognizance, unless [it is] THE RISK NEEDS  ASSESS-
 MENT  HAS  demonstrated  and the court [makes an individualized determi-
 nation] DETERMINES that the principal IS A DANGER TO  THE  COMMUNITY  OR
 poses  a risk of flight to avoid prosecution. If such a finding SPECIFIC
 TO RISK OF FLIGHT TO AVOID PROSECUTION is made, the  court  must  select
 the  least restrictive alternative and condition or conditions that will
 reasonably assure the principal's return to  court.    The  court  shall
 explain  its  choice of release, release with conditions, bail or remand
 on the record or in writing. In making its determination, the court must
 consider and take into account available information about  the  princi-
 pal, including:
   (a) The principal's activities and history;
   (b) If the principal is a defendant, the charges facing the principal;
   (c) The principal's criminal conviction record if any;
   (d)  The  principal's  record  of  previous adjudication as a juvenile
 delinquent, as retained pursuant to section 354.1 of  the  family  court
 act,  or,  of  pending cases where fingerprints are retained pursuant to
 section 306.1 of such act, or a youthful offender, if any;
   (e) The principal's previous record with respect to  flight  to  avoid
 criminal prosecution;
   (f)  If monetary bail is authorized, according to the restrictions set
 forth in this title, the principal's individual financial circumstances,
 and, in cases where bail is authorized, the principal's ability to  post
 bail  without  posing  undue  hardship, as well as his or her ability to
 obtain a secured, unsecured, or partially secured bond;
   (g) Any violation by the principal of an order of protection issued by
 any court;
   (h) The principal's history of use or possession of a firearm;
   (i) Whether the charge is alleged to have caused serious  harm  to  an
 individual or group of individuals; and
   (j) If the principal is a defendant, in the case of an application for
 a  securing  order  pending  appeal,  the  merit or lack of merit of the
 appeal.
   2. A principal is entitled to representation  by  counsel  under  this
 chapter  in  preparing an application for release, when a securing order
 is being considered and when a securing  order  is  being  reviewed  for
 modification, revocation or termination. If the principal is financially
 unable to obtain counsel, counsel shall be assigned to the principal.
   3.  [In  cases  other  than  as  described in subdivision four of this
 section the court shall release the principal pending trial on the prin-
 cipal's own recognizance, unless the court finds on  the  record  or  in
 writing  that  release  on  the  principal's  own  recognizance will not
 reasonably assure the principal's return to court.  In  such  instances,
 the  court  shall  release  the principal under non-monetary conditions,
 selecting the least restrictive alternative  and  conditions  that  will
 reasonably  assure  the  principal's  return  to  court. The court shall
 S. 250                              3

 explain its choice of alternative and conditions on  the  record  or  in
 writing.
   4.  Where  the principal stands charged with a qualifying offense, the
 court, unless otherwise prohibited by law, may in its discretion release
 the principal pending trial on the principal's own recognizance or under
 non-monetary conditions, fix bail, or, where the  defendant  is  charged
 with  a  qualifying  offense which is a felony, the court may commit the
 principal to the custody of the sheriff. A principal stands charged with
 a qualifying offense for the purposes of this subdivision when he or she
 stands charged with:
   (a) a felony enumerated in section 70.02 of the penal law, other  than
 robbery  in  the  second degree as defined in subdivision one of section
 160.10 of the penal law, provided, however, that burglary in the  second
 degree  as defined in subdivision two of section 140.25 of the penal law
 shall be a qualifying offense only where the defendant is  charged  with
 entering the living area of the dwelling;
   (b) a crime involving witness intimidation under section 215.15 of the
 penal law;
   (c)  a  crime involving witness tampering under section 215.11, 215.12
 or 215.13 of the penal law;
   (d) a class A felony defined in the penal law, provided that for class
 A felonies under article two hundred twenty of the penal law, only class
 A-I felonies shall be a qualifying offense;
   (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the penal law, or a felony sex offense defined in section 70.80  of  the
 penal  law,  or  a  crime involving incest as defined in section 255.25,
 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
 hundred thirty of such law;
   (f)  conspiracy  in  the second degree as defined in section 105.15 of
 the penal law, where the underlying allegation of such  charge  is  that
 the  defendant  conspired  to commit a class A felony defined in article
 one hundred twenty-five of the penal law;
   (g) money laundering in support of terrorism in the  first  degree  as
 defined  in section 470.24 of the penal law; money laundering in support
 of terrorism in the second degree as defined in section  470.23  of  the
 penal  law; money laundering in support of terrorism in the third degree
 as defined in section 470.22 of  the  penal  law;  money  laundering  in
 support  of  terrorism in the fourth degree as defined in section 470.21
 of the penal law; or a felony crime of terrorism as defined  in  article
 four  hundred  ninety  of the penal law, other than the crime defined in
 section 490.20 of such law;
   (h) criminal contempt in the second degree as defined  in  subdivision
 three of section 215.50 of the penal law, criminal contempt in the first
 degree  as  defined  in subdivision (b), (c) or (d) of section 215.51 of
 the penal law or aggravated criminal  contempt  as  defined  in  section
 215.52 of the penal law, and the underlying allegation of such charge of
 criminal  contempt  in the second degree, criminal contempt in the first
 degree or aggravated criminal contempt is that the defendant violated  a
 duly served order of protection where the protected party is a member of
 the  defendant's  same family or household as defined in subdivision one
 of section 530.11 of this title;
   (i) facilitating a sexual performance by a  child  with  a  controlled
 substance  or alcohol as defined in section 263.30 of the penal law, use
 of a child in a sexual performance as defined in section 263.05  of  the
 penal  law  or  luring  a child as defined in subdivision one of section
 120.70 of the penal law, promoting an obscene sexual  performance  by  a
 S. 250                              4

 child as defined in section 263.10 of the penal law or promoting a sexu-
 al performance by a child as defined in section 263.15 of the penal law;
   (j)  any  crime  that  is  alleged to have caused the death of another
 person;
   (k) criminal obstruction of breathing or blood circulation as  defined
 in  section  121.11 of the penal law, strangulation in the second degree
 as defined in section 121.12 of the penal law or  unlawful  imprisonment
 in  the  first degree as defined in section 135.10 of the penal law, and
 is alleged to have committed the offense against a member of the defend-
 ant's same family or household as defined in subdivision one of  section
 530.11 of this title;
   (l) aggravated vehicular assault as defined in section 120.04-a of the
 penal law or vehicular assault in the first degree as defined in section
 120.04 of the penal law;
   (m)  assault  in  the third degree as defined in section 120.00 of the
 penal law or arson in the third degree as defined in section  150.10  of
 the  penal law, when such crime is charged as a hate crime as defined in
 section 485.05 of the penal law;
   (n) aggravated assault upon a person less than  eleven  years  old  as
 defined  in  section 120.12 of the penal law or criminal possession of a
 weapon on school grounds as defined in section  265.01-a  of  the  penal
 law;
   (o)  grand larceny in the first degree as defined in section 155.42 of
 the penal law, enterprise corruption as defined in section 460.20 of the
 penal law, or money laundering in the first degree as defined in section
 470.20 of the penal law;
   (p) failure to register as a sex  offender  pursuant  to  section  one
 hundred  sixty-eight-t  of the correction law or endangering the welfare
 of a child as defined in subdivision one of section 260.10 of the  penal
 law,  where  the  defendant  is  required to maintain registration under
 article six-C of the correction law and designated a level three  offen-
 der  pursuant to subdivision six of section one hundred sixty-eight-l of
 the correction law;
   (q) a crime involving bail jumping under  section  215.55,  215.56  or
 215.57  of  the  penal  law,  or a crime involving escaping from custody
 under section 205.05, 205.10 or 205.15 of the penal law;
   (r) any felony offense committed by  the  principal  while  serving  a
 sentence of probation or while released to post release supervision;
   (s)  a  felony,  where  the defendant qualifies for sentencing on such
 charge as a persistent felony offender pursuant to section 70.10 of  the
 penal law;
   (t)  any  felony or class A misdemeanor involving harm to an identifi-
 able person or property, or any  charge  of  criminal  possession  of  a
 firearm  as  defined  in  section  265.01-b of the penal law, where such
 charge arose from conduct occurring while the defendant was released  on
 his or her own recognizance, released under conditions, or had yet to be
 arraigned  after the issuance of a desk appearance ticket for a separate
 felony or class A misdemeanor involving harm to an  identifiable  person
 or  property,  or  any  charge  of  criminal  possession of a firearm as
 defined in section 265.01-b of the penal law,  provided,  however,  that
 the  prosecutor must show reasonable cause to believe that the defendant
 committed the instant crime and any underlying crime. For  the  purposes
 of  this subparagraph, any of the underlying crimes need not be a quali-
 fying offense as defined in this subdivision.  For the purposes of  this
 paragraph,  "harm  to  an identifiable person or property" shall include
 but not be limited to theft of or damage to property.    However,  based
 S. 250                              5

 upon  a review of the facts alleged in the accusatory instrument, if the
 court determines that such theft is negligible and does not appear to be
 in furtherance of  other  criminal  activity,  the  principal  shall  be
 released  on  his or her own recognizance or under appropriate non-mone-
 tary conditions; or
   (u) criminal possession of a weapon in the third degree as defined  in
 subdivision three of section 265.02 of the penal law or criminal sale of
 a firearm to a minor as defined in section 265.16 of the penal law.
   5.  Notwithstanding  the  provisions of subdivisions three and four of
 this section, with] WITH respect to any charge for which bail or  remand
 is  not ordered, and for which the court would not [or could not] other-
 wise require bail or remand, a defendant may, at any time, request  that
 the court set bail in a nominal amount requested by the defendant in the
 form  specified in paragraph (a) of subdivision one of section 520.10 of
 this title; if the court is satisfied that the request is voluntary, the
 court shall set such bail in such amount.
   [6.] 4. 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 the principal 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  termi-
 nation of the securing order.
   § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
 amended  by  section 3 of part JJJ of chapter 59 of the laws of 2019, is
 amended to read as follows:
   1. Upon any occasion when a court has issued  a  securing  order  with
 respect  to  a principal and the principal is confined in the custody of
 the sheriff as a result of the securing order  or  a  previously  issued
 securing  order, the principal may make an application for recognizance,
 release under non-monetary conditions or bail. ANY SUCH DECISION BY  THE
 COURT FOR A CHANGE IN A SECURING ORDER WITH RESPECT TO A PRINCIPAL SHALL
 TAKE  INTO ACCOUNT THE RISK AND NEEDS ASSESSMENT CONDUCTED BY THE APPLI-
 CABLE COUNTY PRE-TRIAL SERVICES AGENCY, BUT SUCH ASSESSMENT SHALL NOT BE
 THE SOLE DETERMINATIVE FACTOR.
   § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
 amended by section 2 of subpart C of part UU of chapter 56 of  the  laws
 of 2022, is amended to read as follows:
   1.  With  respect  to  any  principal,  the court in all cases, unless
 otherwise provided by law, must impose the least  restrictive  kind  and
 degree of control or restriction that is necessary to secure the princi-
 pal's return to court when required UNLESS SUCH PRINCIPAL POSES A DANGER
 TO THE COMMUNITY. In determining that matter, the court [must], IN ADDI-
 TION  TO  TAKING INTO ACCOUNT THE RISK AND NEEDS ASSESSMENT CONDUCTED BY
 THE APPLICABLE COUNTY PRE-TRIAL SERVICES AGENCY, on the basis of  avail-
 able  information,  consider and take into account information about the
 principal that is relevant to the principal's return to  court,  includ-
 ing:
   (a) The principal's activities and history;
   (b) If the principal is a defendant, the charges facing the principal;
   (c) The principal's criminal conviction record if any;
   (d)  The  principal's  record  of  previous adjudication as a juvenile
 delinquent, as retained pursuant to section 354.2 of  the  family  court
 act,  or,  of  pending cases where fingerprints are retained pursuant to
 section 306.1 of such act, or a youthful offender, if any;
 S. 250                              6
 
   (e) The principal's previous record with respect to  flight  to  avoid
 criminal prosecution;
   (f)  If monetary bail is authorized, according to the restrictions set
 forth in this title, the principal's individual financial circumstances,
 and, in cases where bail is authorized, the principal's ability to  post
 bail  without  posing  undue  hardship, as well as his or her ability to
 obtain a secured, unsecured, or partially secured bond;
   (g) any violation by the principal of an order of protection issued by
 any court;
   (h) the principal's history of use or possession of a firearm;
   (i) whether the charge is alleged to have caused serious  harm  to  an
 individual or group of individuals; and
   (j) If the principal is a defendant, in the case of an application for
 a  securing  order  pending  appeal,  the  merit or lack of merit of the
 appeal.
   § 5. Paragraph (a) of subdivision 3 of section 510.45 of the  criminal
 procedure  law,  as  added by section 8 of part JJJ of chapter 59 of the
 laws of 2019, is amended to read as follows:
   [(a) Any questionnaire, instrument or tool] THE RISK AND NEEDS ASSESS-
 MENT INSTRUMENT used with a principal in the process of  considering  or
 determining  the  principal's  possible release on recognizance, release
 under non-monetary conditions or on bail, or used with  a  principal  in
 the  process  of considering or determining a condition or conditions of
 release or monitoring by a pretrial services agency, shall  be  promptly
 made  available to the principal and the principal's counsel upon [writ-
 ten] request. [Any such blank form questionnaire,  instrument  or  tool]
 ANY  SUCH  BLANK  RISK AND NEEDS ASSESSMENT INSTRUMENT regularly used in
 the county for such purpose or a related purpose shall be made available
 to any person promptly upon WRITTEN request.
   § 6. Paragraph (b) of subdivision 3 of section 510.45 of the  criminal
 procedure law is REPEALED.
   §  7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal
 procedure law, as amended by section 3 of subpart C of part UU of  chap-
 ter 56 of the laws of 2022, is amended to read as follows:
   (a)  [In cases other than as described in paragraph (b) of this subdi-
 vision] WHEN THE PRINCIPAL IS CHARGED WITH AN  OFFENSE  OR  OFFENSES  OF
 LESS  THAN  FELONY  GRADE ONLY, the court shall [release the] REQUEST OF
 THE APPLICABLE COUNTY PRE-TRIAL SERVICES AGENCY A RISK AND NEEDS ASSESS-
 MENT BE CONDUCTED ON THE ELIGIBLE PRINCIPAL AND  THE  COURT  SHALL  TAKE
 INTO  ACCOUNT  THE  RISK AND NEEDS ASSESSMENT, BUT SUCH ASSESSMENT SHALL
 NOT BE THE SOLE DETERMINATIVE FACTOR, FOR  THE  PURPOSE  OF  DETERMINING
 WHETHER  SUCH  principal SHOULD BE RELEASED pending trial on the princi-
 pal's own recognizance, [unless the court finds  on  the  record  or  in
 writing  that  release  on  the  principal's  own  recognizance will not
 reasonably assure the principal's return to court.  In  such  instances,
 the  court  shall  release  the principal under non-monetary conditions,
 selecting the least restrictive alternative  and  conditions  that  will
 reasonably  assure  the principal's return to court] RELEASED UNDER NON-
 MONETARY CONDITIONS, OR WHERE AUTHORIZED, FIX BAIL OR COMMIT THE PRINCI-
 PAL TO THE CUSTODY OF THE SHERIFF. The court shall explain its choice of
 [alternative and] RELEASE, RELEASE WITH conditions, BAIL  OR  REMAND  on
 the  record  or  in writing. In making its determination, the court must
 consider and take into account available information about  the  princi-
 pal, including:
   (i) the principal's activities and history;
 S. 250                              7
 
   (ii)  if  the principal is a defendant, the charges facing the princi-
 pal;
   (iii) the principal's criminal conviction record if any;
   (iv)  the  principal's  record  of previous adjudication as a juvenile
 delinquent, as retained pursuant to section 354.1 of  the  family  court
 act,  or  of  pending  cases where fingerprints are retained pursuant to
 section 306.1 of such act, or a youthful offender, if any;
   (v) the principal's previous record with respect to  flight  to  avoid
 criminal prosecution;
   (vi) if monetary bail is authorized, according to the restrictions set
 forth in this title, the principal's individual financial circumstances,
 and,  in cases where bail is authorized, the principal's ability to post
 bail without posing undue hardship, as well as his  or  her  ability  to
 obtain a secured, unsecured, or partially secured bond;
   (vii)  any violation by the principal of an order of protection issued
 by any court;
   (viii) the principal's history and use or possession of a firearm;
   (ix) whether the charge is alleged to have caused serious harm  to  an
 individual or group of individuals; and
   (x) if the principal is a defendant, in the case of an application for
 a  securing  order  pending  appeal,  the  merit or lack of merit of the
 appeal.
   § 8. Paragraph (b) of subdivision 1 of section 530.20 of the  criminal
 procedure law is REPEALED.
   §  9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal
 procedure law, as added by section 16 of part JJJ of chapter 59  of  the
 laws  of  2019,  is  relettered  paragraph  (b)  and  amended to read as
 follows:
   (b) [Notwithstanding the provisions of paragraphs (a) and (b) of  this
 subdivision,  with]  WITH respect to any charge for which bail or remand
 is not ordered, and for which the court would not [or could not]  other-
 wise  require bail or remand, a defendant may, at any time, request that
 the court set bail in a nominal amount requested by the defendant in the
 form specified in paragraph (a) of subdivision one of section 520.10  of
 this title; if the court is satisfied that the request is voluntary, the
 court shall set such bail in such amount.
   §  10. The opening paragraph of subdivision 2 of section 530.20 of the
 criminal procedure law, as amended by section 16 of part JJJ of  chapter
 59 of the laws of 2019, is amended to read as follows:
   When the defendant is charged, by felony complaint, with a felony, the
 court  [may,  in its discretion, order] SHALL, REQUEST OF THE APPLICABLE
 COUNTY  PRE-TRIAL  SERVICES  AGENCY  A  RISK  AND  NEEDS  ASSESSMENT  BE
 CONDUCTED  ON  THE  ELIGIBLE  DEFENDANT  AND  THE  COURT SHALL TAKE INTO
 ACCOUNT THE RISK AND NEEDS ASSESSMENT, BUT SUCH ASSESSMENT SHALL NOT  BE
 THE  SOLE  DETERMINATIVE  FACTOR, FOR THE PURPOSE OF DETERMINING WHETHER
 SUCH DEFENDANT SHOULD BE RELEASED ON THE DEFENDANT'S  OWN  recognizance,
 [release]  RELEASED under non-monetary conditions, or, where authorized,
 bail or commit the defendant to the custody of  the  sheriff  except  as
 otherwise provided in [subdivision one of this section or] this subdivi-
 sion:
   §  11.  Section  530.40  of  the criminal procedure law, as amended by
 section 18 of part JJJ of chapter 59 of the laws of 2019, subdivision  3
 as  amended  by  section  3 of subpart B of part UU of chapter 56 of the
 laws of 2022, and subdivision 4 as amended by section 4 of  part  UU  of
 chapter  56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4
 as amended and paragraph (u) of subdivision 4 as added by section  4  of
 S. 250                              8
 
 subpart  B  of  part UU of chapter 56 of the laws of 2022, is amended to
 read as follows:
 § 530.40 Order of recognizance, release under non-monetary conditions or
            bail; by superior court when action is pending therein.
   When  a  criminal  action  is pending in a superior court, such court,
 upon application of a defendant, must or may order recognizance or  bail
 as follows:
   1.  When  the defendant is charged with an offense or offenses of less
 than felony grade only, the court must, REQUEST OF THE APPLICABLE COUNTY
 PRE-TRIAL SERVICES AGENCY A RISK AND NEEDS ASSESSMENT  BE  CONDUCTED  ON
 THE  ELIGIBLE  DEFENDANT  AND THE COURT SHALL TAKE INTO ACCOUNT THE RISK
 AND NEEDS ASSESSMENT, BUT SUCH ASSESSMENT SHALL NOT BE THE SOLE DETERMI-
 NATIVE FACTOR, FOR THE PURPOSE OF DETERMINING  WHETHER  SUCH  DEFENDANT,
 unless  otherwise  provided  by  law,  SHOULD BE RELEASED ON AN order OF
 recognizance or  BAIL  OR  release  under  non-monetary  conditions  [in
 accordance  with this section] OR COMMIT THE DEFENDANT TO THE CUSTODY OF
 THE SHERIFF.
   2. When the defendant is charged with a felony, the court [may, unless
 otherwise provided by law in its discretion, order]   SHALL  REQUEST  OF
 THE APPLICABLE COUNTY PRE-TRIAL SERVICES AGENCY A RISK AND NEEDS ASSESS-
 MENT  BE  CONDUCTED  ON  THE ELIGIBLE DEFENDANT AND THE COURT SHALL TAKE
 INTO ACCOUNT THE RISK AND NEEDS ASSESSMENT, BUT  SUCH  ASSESSMENT  SHALL
 NOT  BE  THE  SOLE  DETERMINATIVE FACTOR, FOR THE PURPOSE OF DETERMINING
 WHETHER SUCH DEFENDANT SHOULD BE RELEASED ON THE DEFENDANT'S OWN  recog-
 nizance,  [release]  RELEASED  under  non-monetary  conditions or, where
 authorized, bail OR COMMIT THE DEFENDANT TO THE CUSTODY OF THE  SHERIFF.
 In  any  such case in which an indictment (a) has resulted from an order
 of a local criminal court holding the defendant for the  action  of  the
 grand  jury, or (b) was filed at a time when a felony complaint charging
 the same conduct was pending in a local criminal  court,  and  in  which
 such  local criminal court or a superior court judge has issued an order
 of recognizance, release under non-monetary conditions or, where author-
 ized, bail which is still effective, the superior court's order  may  be
 in  the form of a direction continuing the effectiveness of the previous
 order.
   3. [In cases other than as  described  in  subdivision  four  of  this
 section the court shall release the principal pending trial on the prin-
 cipal's  own  recognizance,  unless  the court finds on the record or in
 writing that release  on  the  principal's  own  recognizance  will  not
 reasonably  assure  the  principal's return to court. In such instances,
 the court shall release the  principal  under  non-monetary  conditions,
 selecting  the  least  restrictive  alternative and conditions that will
 reasonably assure the principal's  return  to  court.  The  court  shall
 explain  its  choice  of  alternative and conditions on the record or in
 writing. In making its determination, the court must consider  and  take
 into account available information about the principal, including:
   (a) the principal's activities and history;
   (b) if the principal is a defendant, the charges facing the principal;
   (c) the principal's criminal conviction record if any;
   (d)  the  principal's  record  of  previous adjudication as a juvenile
 delinquent, as retained pursuant to section 354.1 of  the  family  court
 act,  or  of  pending  cases where fingerprints are retained pursuant to
 section 306.1 of such act, or a youthful offender, if any;
   (e) the principal's previous record with respect to  flight  to  avoid
 criminal prosecution;
 S. 250                              9

   (f)  if monetary bail is authorized, according to the restrictions set
 forth in this title, the principal's individual financial circumstances,
 and, in cases where bail is authorized, the principal's ability to  post
 bail  without  posing  undue  hardship, as well as his or her ability to
 obtain a secured, unsecured, or partially secured bond;
   (g) any violation by the principal of an order of protection issued by
 any court;
   (h) the principal's history and use or possession of a firearm;
   (i)  whether  the  charge is alleged to have caused serious harm to an
 individual or group of individuals; and
   (j) if the principal is a defendant, in the case of an application for
 a securing order pending appeal, the merit  or  lack  of  merit  of  the
 appeal.
   4.  Where  the principal stands charged with a qualifying offense, the
 court, unless otherwise prohibited by law, may in its discretion release
 the principal pending trial on the principal's own recognizance or under
 non-monetary conditions, fix bail, or, where the  defendant  is  charged
 with  a  qualifying  offense which is a felony, the court may commit the
 principal to the custody of the sheriff. The  court  shall  explain  its
 choice of release, release with conditions, bail or remand on the record
 or  in writing. A principal stands charged with a qualifying offense for
 the purposes of this subdivision when he or she stands charged with:
   (a) a felony enumerated in section 70.02 of the penal law, other  than
 robbery  in  the  second degree as defined in subdivision one of section
 160.10 of the penal law, provided, however, that burglary in the  second
 degree  as defined in subdivision two of section 140.25 of the penal law
 shall be a qualifying offense only where the defendant is  charged  with
 entering the living area of the dwelling;
   (b) a crime involving witness intimidation under section 215.15 of the
 penal law;
   (c)  a  crime involving witness tampering under section 215.11, 215.12
 or 215.13 of the penal law;
   (d) a class A felony defined in the penal law, provided that for class
 A felonies under article two hundred twenty of such law, only class  A-I
 felonies shall be a qualifying offense;
   (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
 the  penal  law, or a felony sex offense defined in section 70.80 of the
 penal law or a crime involving incest  as  defined  in  section  255.25,
 255.26  or  255.27  of such law, or a misdemeanor defined in article one
 hundred thirty of such law;
   (f) conspiracy in the second degree as defined in  section  105.15  of
 the  penal  law,  where the underlying allegation of such charge is that
 the defendant conspired to commit a class A felony  defined  in  article
 one hundred twenty-five of the penal law;
   (g)  money  laundering  in support of terrorism in the first degree as
 defined in section 470.24 of the penal law; money laundering in  support
 of  terrorism  in  the second degree as defined in section 470.23 of the
 penal law; money laundering in support of terrorism in the third  degree
 as  defined  in  section  470.22  of  the penal law; money laundering in
 support of terrorism in the fourth degree as defined in  section  470.21
 of  the  penal law; or a felony crime of terrorism as defined in article
 four hundred ninety of the penal law, other than the  crime  defined  in
 section 490.20 of such law;
   (h)  criminal  contempt in the second degree as defined in subdivision
 three of section 215.50 of the penal law, criminal contempt in the first
 degree as defined in subdivision (b), (c) or (d) of  section  215.51  of
 S. 250                             10

 the  penal  law  or  aggravated  criminal contempt as defined in section
 215.52 of the penal law, and the underlying allegation of such charge of
 criminal contempt in the second degree, criminal contempt in  the  first
 degree  or aggravated criminal contempt is that the defendant violated a
 duly served order of protection where the protected party is a member of
 the defendant's same family or household as defined in  subdivision  one
 of section 530.11 of this article;
   (i)  facilitating  a  sexual  performance by a child with a controlled
 substance or alcohol as defined in section 263.30 of the penal law,  use
 of  a  child in a sexual performance as defined in section 263.05 of the
 penal law or luring a child as defined in  subdivision  one  of  section
 120.70  of  the  penal law, promoting an obscene sexual performance by a
 child as defined in section 263.10 of the penal law or promoting a sexu-
 al performance by a child as defined in section 263.15 of the penal law;
   (j) any crime that is alleged to have  caused  the  death  of  another
 person;
   (k)  criminal obstruction of breathing or blood circulation as defined
 in section 121.11 of the penal law, strangulation in the  second  degree
 as  defined  in section 121.12 of the penal law or unlawful imprisonment
 in the first degree as defined in section 135.10 of the penal  law,  and
 is alleged to have committed the offense against a member of the defend-
 ant's  same family or household as defined in subdivision one of section
 530.11 of this article;
   (l) aggravated vehicular assault as defined in section 120.04-a of the
 penal law or vehicular assault in the first degree as defined in section
 120.04 of the penal law;
   (m) assault in the third degree as defined in section  120.00  of  the
 penal  law  or arson in the third degree as defined in section 150.10 of
 the penal law, when such crime is charged as a hate crime as defined  in
 section 485.05 of the penal law;
   (n)  aggravated  assault  upon  a person less than eleven years old as
 defined in section 120.12 of the penal law or criminal possession  of  a
 weapon  on  school  grounds  as defined in section 265.01-a of the penal
 law;
   (o) grand larceny in the first degree as defined in section 155.42  of
 the penal law, enterprise corruption as defined in section 460.20 of the
 penal law, or money laundering in the first degree as defined in section
 470.20 of the penal law;
   (p)  failure  to  register  as  a sex offender pursuant to section one
 hundred sixty-eight-t of the correction law or endangering  the  welfare
 of  a child as defined in subdivision one of section 260.10 of the penal
 law, where the defendant is  required  to  maintain  registration  under
 article  six-C of the correction law and designated a level three offen-
 der pursuant to subdivision six of section one hundred sixty-eight-l  of
 the correction law;
   (q)  a  crime  involving  bail jumping under section 215.55, 215.56 or
 215.57 of the penal law, or a  crime  involving  escaping  from  custody
 under section 205.05, 205.10 or 205.15 of the penal law;
   (r)  any  felony  offense  committed  by the principal while serving a
 sentence of probation or while released to post release supervision;
   (s) a felony, where the defendant qualifies  for  sentencing  on  such
 charge  as a persistent felony offender pursuant to section 70.10 of the
 penal law;
   (t) any felony or class A misdemeanor involving harm to  an  identifi-
 able  person  or  property,  or  any  charge of criminal possession of a
 firearm as defined in section 265.01-b of  the  penal  law,  where  such
 S. 250                             11

 charge  arose from conduct occurring while the defendant was released on
 his or her own recognizance, released under conditions, or had yet to be
 arraigned after the issuance of a desk appearance ticket for a  separate
 felony  or  class A misdemeanor involving harm to an identifiable person
 or property, or any charge  of  criminal  possession  of  a  firearm  as
 defined  in  section  265.01-b of the penal law, provided, however, that
 the prosecutor must show reasonable cause to believe that the  defendant
 committed  the  instant crime and any underlying crime. For the purposes
 of this subparagraph, any of the underlying crimes need not be a  quali-
 fying  offense  as defined in this subdivision. For the purposes of this
 paragraph, "harm to an identifiable person or  property"  shall  include
 but  not  be  limited  to theft of or damage to property. However, based
 upon a review of the facts alleged in the accusatory instrument, if  the
 court determines that such theft is negligible and does not appear to be
 in  furtherance  of  other  criminal  activity,  the  principal shall be
 released on his or her own recognizance or under  appropriate  non-mone-
 tary conditions; or
   (u)  criminal possession of a weapon in the third degree as defined in
 subdivision three of section 265.02 of the penal law or criminal sale of
 a firearm to a minor as defined in section 265.16 of the penal law.
   5. Notwithstanding the provisions of subdivisions three  and  four  of
 this  section, with] WITH respect to any charge for which bail or remand
 is not ordered, and for which the court would not [or could not]  other-
 wise  require bail or remand, a defendant may, at any time, request that
 the court set bail in a nominal amount requested by the defendant in the
 form specified in paragraph (a) of subdivision one of section 520.10  of
 this title; if the court is satisfied that the request is voluntary, the
 court shall set such bail in such amount.
   [6.]  4.  Notwithstanding the provisions of [subdivisions] SUBDIVISION
 two[, three and four] of this section, a superior court  may  not  order
 recognizance,  release  under  non-monetary conditions or, where author-
 ized, bail, or permit a defendant to remain at liberty  pursuant  to  an
 existing  order, after the defendant has been convicted of either: (a) a
 class A felony or (b) any class B or class C felony as defined in  arti-
 cle  one  hundred  thirty  of the penal law committed or attempted to be
 committed by a person eighteen years of age or older  against  a  person
 less than eighteen years of age. In either case the court must commit or
 remand the defendant to the custody of the sheriff.
   [7.]  5.  Notwithstanding the provisions of [subdivisions] SUBDIVISION
 two[, three and four] of this section, a superior court  may  not  order
 recognizance,  release  under  non-monetary conditions or, where author-
 ized, bail when the defendant is charged with a felony unless and  until
 the  district  attorney has had an opportunity to be heard in the matter
 and such court and counsel for the defendant have been furnished with  a
 report as described in subparagraph (ii) of paragraph (b) of subdivision
 two of section 530.20 of this article.
   § 12. This act shall take effect immediately.