BILL NUMBER:A5542A

TITLE OF BILL:  An act to amend the criminal procedure law, in relation
to exoneration of bail

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend sections 530.20 and 530.40 of the Criminal
Procedure Law to require the granting, by a local criminal court or
superior court, of a defendant's application for exoneration of bail,
absent a showing of "good cause" why bail should not be exonerated,
where a felony complaint has been pending for at least 45 days from the
defendant's arraignment thereon with no action by the Grand Jury.

This measure would address the bail status of a defendant charged in a
pending felony complaint who makes bail and may be required to return to
court repeatedly, often over a period of several weeks or months, while
awaiting Grand Jury action. As noted in a recent New York Law Journal
article on the topic, a defendant in this situation can request that the
criminal court exonerate his bail and return the money pending action of
the Grand Jury and subsequent arraignment in a superior court if
indicted. The local courts, however, are often reluctant to do so.
Assistant district attorneys routinely claim they are within the
People's statutory speedy trial time frame...and that the bail is neces-
              

sary to ensure the defendant will return to court for his next scheduled
appearance. It is interesting to note, however, that the similarly
charged defendant, unable to make bail, must be released on his own
recognizance 45 days after the initial arraignment in the local criminal
court, if the district attorney has failed to obtain an indictment
citing CPL section 190.80. This results in the rather perverse situation
where one defendant must be released without bail while another defend-
ant, facing the same charges and potential penalty, who made bail and
returns for his court appearances regularly, is not entitled to have his
bail funds returned.

MacNamara, Outside Counsel, Defendants' Limbo:  FROM FELONY COMPLAINT TO
GRAND JURY ACTION, NYLJ, June 27, 2003 at p.4, col. 4

Noting that a defendant who is able to raise sufficient money for bail
often does so by borrowing from family members and friends, the author
argues that "it is unreasonable that those individuals should have to
suffer financially due to prosecutorial inaction or indifference.
Forty-five days is more than a sufficient time period for the People to
secure an indictment. If the People have not secured an indictment with-
in 45 days of the initial court appearance, the incarcerated defendant
should be released and bail should be exonerated for the defendant who
was free on bail. This will encourage the People to critically evaluate
their case at an early stage and either secure an indictment or offer a
reasonable plea."

Id., at p.5, col.4

Our Advisory Committee agrees with this view. Where there is no action
on a pending felony complaint for a period of 45 days from arraignment,
a defendant who is able to make bail should, barring unusual circum-
stances, be in no worse a position with respect to his or her bail
status than a defendant charged with an identical offense who could not
make bail. Accordingly, we have prepared this measure, which would
address this discrepancy in the law by, in effect, creating a "presump-
tion" in favor of bail exoneration after a 45-day period has elapsed
with no Grand Jury action on a felony complaint.  Specifically, the
measure would add a new subdivision three to CPL section 530.20 to
require the granting by a local criminal court of a defendant's applica-
tion for exoneration of bail, absent a showing of "good cause" by the
People why bail should not be exonerated, where the felony complaint, on
the date of such application, has been pending in such court, with no
action by the grand jury, for a period of at least 45 days from the
defendant's arraignment thereon. The measure would make a similar amend-
ment to CPL section 530.40, to allow the defendant's application for
exoneration to be made in a superior court when the felony complaint is
pending there.

This measure, which would have no fiscal impact on the State, would take
effect immediately.

LEGISLATIVE HISTORY:  Reintroduction from last session bill number
A.4886.