§ 510.10 Securing order; when required; alternatives available; standard

to be applied.

The imposition of a specific type of securing order is in some cases
required by law and in other cases within the discretion of the court in
accordance with the principles of, and pursuant to its authority granted
under, this title.

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 impose a securing order in accordance with this
title. Except as otherwise required by law, the court shall make an
individualized determination as to whether the principal poses a risk of
flight to avoid prosecution, consider the kind and degree of control or
restriction necessary to reasonably assure the principal's return to
court, and select a securing order consistent with its determination
under this subdivision. The court shall explain the basis for its
determination and its choice of securing order on the record or in
writing. In making a determination under this subdivision, 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;

(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
principal'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 as
provided for in subdivision three-a of section 500.10 of this title that
will reasonably assure the principal's return to court. The court shall
explain its choice of securing order 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 order non-monetary conditions in
conjunction with fixing 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
child as defined in section 263.10 of the penal law or promoting a
sexual 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
defendant'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
offender 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
identifiable 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
qualifying 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-monetary 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 respect to any charge for which bail or remand is not
ordered, and for which the court would not or could not otherwise
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. 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
termination of the securing order.