S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9885
 
                           I N  A S S E M B L Y
 
                             February 20, 2020
                                ___________
 
 Introduced  by  M.  of  A.  MALLIOTAKIS -- read once and referred 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, 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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14842-05-0

 A. 9885                             2
 
 the principal's own recognizance, unless [it  is]  THE  RISK  AND  NEEDS
 ASSESSMENT  HAS  demonstrated  and  the  court  [makes an individualized
 determination] DETERMINES that the principal IS A DANGER TO THE COMMUNI-
 TY  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.
   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
 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
 burglary  in  the second degree as defined in subdivision two of section
 140.25 of the penal law or robbery in the second degree  as  defined  in
 subdivision one of section 160.10 of the penal law;
   (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, other than  in  article
 two  hundred  twenty of such law with the exception of section 220.77 of
 such law;
   (e) 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;  or  a  felony crime of terrorism as defined in article four

 A. 9885                             3

 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 article; or
   (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.
   5.  Notwithstanding  the  provisions of subdivisions three and four of
 this section, with] 3. 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.] 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 5 of part JJJ of chapter 59 of the laws of  2019,  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 MAY, on the basis of
 available information, consider and take into account information  about

 A. 9885                             4

 the  principal  that  is  relevant  to  the principal's return to court,
 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 354.2 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;
   (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) Where the principal is charged with a crime or  crimes  against  a
 member  or  members  of  the  same  family  or household as that term is
 defined in subdivision one of section 530.11 of this title, the  follow-
 ing factors:
   (i) any violation by the principal of an order of protection issued by
 any  court  for the protection of a member or members of the same family
 or household as that term is  defined  in  subdivision  one  of  section
 530.11  of  this  title,  whether  or  not  such  order of protection is
 currently in effect; and
   (ii) the principal's history of use or possession of a firearm; and
   (h) 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 added by section 16 of part JJJ of chapter 59 of the
 laws of 2019, is amended to read as follows:
   (a) [In cases other than as described in paragraph (b) of this  subdi-
 vision the] 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-

 A. 9885                             5
 
 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.
   §  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, 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.

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   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.
   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
 burglary  in  the second degree as defined in subdivision two of section
 140.25 of the penal law or robbery in the second degree  as  defined  in
 subdivision one of section 160.10 of the penal law;
   (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, other than  in  article
 two  hundred  twenty of such law with the exception of section 220.77 of
 such law;
   (e) 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;

 A. 9885                             7

   (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;  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 article; or
   (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.
   5.  Notwithstanding  the  provisions of subdivisions three and four of
 this section, with] 3. 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.] 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.