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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jan 09, 2020 |
referred to codes |
Senate Bill S7156
2019-2020 Legislative Session
Relates to the elimination of bail and providing for pretrial detention; repealer
download bill text pdfSponsored By
(D, WF) 4th Senate District
Archive: Last Bill Status - In Senate Committee Codes Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
co-Sponsors
(D) Senate District
(D) Senate District
(D) Senate District
(D, IP, WF) Senate District
(D, WF) Senate District
(D) 6th Senate District
2019-S7156 (ACTIVE) - Details
- Current Committee:
- Senate Codes
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Rpld §500.10 subs 21 & 22, §510.10 subs 3 - 5, Art 520, §530.60, amd CP L, generally; rpld Art 68, Ins L; amd §216, Judy L
2019-S7156 (ACTIVE) - Sponsor Memo
BILL NUMBER: S7156
SPONSOR: MARTINEZ
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to eliminating
bail and providing for pretrial detention; to amend the judiciary law,
in relation to an annual report on pretrial release and detention
outcomes; and to repeal certain provisions of the criminal procedure law
and the insurance law relating to bail and bail bonds
PURPOSE:
This legislation would eliminate the cash bail system and create a proc-
ess for pretrial detention.
SUMMARY OF PROVISIONS:
Section 1- : Changes to the criminal procedure law to eliminate cash
bail and implement pretrial detention hearing procedures.
Section 21: Changes to criminal procedure law which would create a pretrial detention hearing process, stipulating criteria for pretrial detention and rights of the accused. Section 22: Repeal of parts of the insurance law relating to bail Section 23-25: Changes to criminal procedure law relating to securing orders Section 26: Collection of information relating to pretrial outcomes and creation of a report. Section 27. Effective Date JUSTIFICATION: All across the country, there have been movements to create and ensure a more fair justice system. While the bail reform New York enacted is laudable, it falls short of its original goals of equality and safety. This legislation will ensure equality for individuals regardless of their economic status by completely eliminating cash bail and replacing the bail system with an objective, individualized process. Under the current law, two individuals could commit the same crime, but one can be released on bail while the other is confined to a pretrial. For other crimes, pretrial detention isn't even an option, when it should be - cases involve everything from sex offenders to pedophilia to manslaught- er. That is not an equal justice system. An equal justice system does not depend on monetary means to determine whether or not an individual is released. This legislation will ensure individuals are evaluated based on whether or not they will return to court, and crucially, whether or not they are a risk to the safety of the victim or another individual as to them- selves. There will be no matrix or algorithm that will determine a case. Rather, the judge will look at the individualized facts of each case and be limited to a few criteria to determine if a person should be held pretrial, with safety and flight risk as the top priority. These proposed changes will restore trust and faith in our justice system by enabling prosecutors and judges to make the decisions neces- sary to keep our communities safe. Furthermore, this legislation will provide critical oversight to the pretrial detention process by creating an appeals board for any pretrial detention decision. PRIOR LEGISLATIVE HISTORY: New bill FISCAL IMPLICATIONS: To be determined. EFFECTIVE DATE: January 1, 2021
2019-S7156 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7156
I N S E N A T E
January 9, 2020
___________
Introduced by Sens. MARTINEZ, GAUGHRAN, BROOKS -- 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 eliminating
bail and providing for pretrial detention; to amend the judiciary law,
in relation to an annual report on pretrial release and detention
outcomes; and to repeal certain provisions of the criminal procedure
law and the insurance law relating to bail and bail bonds
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph (viii) of paragraph (b) of subdivision 1 of
section 150.20 of the criminal procedure law, as added by section 1-a of
part JJJ of chapter 59 of the laws of 2019, is amended and a new subpar-
agraph (ix) is added, to read as follows:
(viii) it reasonably appears to the officer, based on the observed
behavior of the individual in the present contact with the officer and
facts regarding the person's condition that indicates a sign of distress
to such a degree that the person would face harm without immediate
medical or mental health care, that bringing the person before the court
would be in such person's interest in addressing that need; provided,
however, that before making the arrest, the officer shall make all
reasonable efforts to assist the person in securing appropriate
services[.]; AND
(IX) THE PERSON IS UNLIKELY TO RETURN TO COURT ON THE RETURN DATE OF
AN APPEARANCE TICKET FOR REASONS SPECIFIC TO THE FACTS OF THE CASE THAT
THE OFFICER CAN ARTICULATE IN THE INFORMATION OR MISDEMEANOR COMPLAINT.
THESE REASONS CANNOT RELY SOLELY ON THE DEFENDANT'S PRIOR CRIMINAL
HISTORY OR PLACE OF RESIDENCE.
§ 2. Subdivisions 3-a, 4 and 5 of section 500.10 of the criminal
procedure law, subdivision 3-a as added and subdivisions 4 and 5 as
amended by section 1-e of part JJJ of chapter 59 of the laws of 2019,
are amended and a new subdivision 6-a is added to read as follows:
3-a. "Release under non-monetary conditions." A court releases a prin-
cipal under non-monetary conditions when, having acquired control over a
person, it authorizes the person to be at liberty during the pendency of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14721-02-0
S. 7156 2
the criminal action or proceeding involved under conditions ordered by
the court, which shall be the least restrictive conditions that will
reasonably assure the principal's return to court. Such conditions may
include, among other conditions reasonable under the circumstances: that
the principal be in contact with a pretrial services agency serving
principals in that county; that the principal abide by reasonable, spec-
ified restrictions on travel that are reasonably related to an actual
risk of flight from the jurisdiction; that the principal refrain from
possessing a firearm, destructive device or other dangerous weapon;
[that, when it is shown pursuant to subdivision four of section 510.45
of this title that no other realistic monetary condition or set of non-
monetary conditions will suffice to reasonably assure the person's
return to court, the person be placed in] reasonable pretrial super-
vision with a pretrial services agency serving principals in that coun-
ty; [that, when it is shown pursuant to paragraph (a) of subdivision
four of section 510.40 of this title that no other realistic non-mone-
tary condition or set of non-monetary conditions will suffice to reason-
ably assure the principal's return to court,] the principal's location
be monitored with an approved electronic monitoring device, in accord-
ance with [such] subdivision [four] THREE of section 510.40 of this
title. A principal shall not be required to pay for any part of the cost
of release on non-monetary conditions.
4. "Commit to the custody of the sheriff." A court commits a principal
to the custody of the sheriff when, having acquired control over the
principal's person, it orders that the principal be confined in the
custody of the sheriff [during the pendency of the criminal action or
proceeding involved] PENDING THE OUTCOME OF A HEARING UNDER ARTICLE FIVE
HUNDRED FORTY-FIVE OF THIS TITLE, AS TO WHETHER THE INDIVIDUAL SHALL BE
ORDERED INTO PRETRIAL DETENTION.
5. "Securing order" means an order of a court [committing a principal
to the custody of the sheriff or fixing bail, where authorized, or
releasing the principal on the principal's own recognizance or releasing
the principal under non-monetary conditions] THAT EITHER RELEASES A
PRINCIPAL UNDER PERSONAL RECOGNIZANCE, OR RELEASES THE PRINCIPAL UNDER
NON-MONETARY CONDITIONS, ALL WITH THE DIRECTION THAT THE PRINCIPAL
RETURN TO THE COURT FOR FUTURE COURT APPEARANCES AND BE AT ALL TIMES
AMENABLE TO THE ORDERS AND PROCESSES OF THE COURT.
6-A. "PRETRIAL DETENTION." A COUNTY OR SUPERIOR COURT MAY COMMIT A
PRINCIPAL TO PRETRIAL DETENTION IF, AFTER A HEARING AND MAKING SUCH
FINDINGS AS SPECIFIED IN ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE,
A JUDGE SO ORDERS DETENTION.
§ 3. Subdivisions 21 and 22 of section 500.10 of the criminal proce-
dure law are REPEALED.
§ 4. Subdivision 1 of 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 and a new subdivision 1-a is added to read as follows:
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 on the principal's own recognizance, release
the principal 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 demonstrated and the
court makes an individualized determination that the principal poses a
S. 7156 3
risk of flight to avoid prosecution OR THE COURT FINDS THAT RELEASE ON
RECOGNIZANCE WILL NOT REASONABLY ASSURE THE INDIVIDUAL'S COURT ATTEND-
ANCE. If such a finding 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.
1-A. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, IN CASES WHERE
THE PEOPLE INDICATE THAT THEY INTEND TO MOVE FOR PRETRIAL DETENTION AS
SET FORTH IN ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE, THE COURT
MAY COMMIT THE DEFENDANT TO THE CUSTODY OF THE SHERIFF OR ISSUE A SECU-
RITY ORDER IN ACCORDANCE WITH ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS
TITLE.
§ 5. Subdivisions 3, 4 and 5 of section 510.10 of the criminal proce-
dure law are REPEALED and subdivision 6 is renumbered subdivision 3.
§ 6. 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:
§ 510.20 Application for a change in securing order BASED ON A MATERIAL
CHANGE IN CIRCUMSTANCES.
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]. UPON ANY OCCASION WHEN
A COURT HAS ISSUED A SECURING ORDER WITH RESPECT TO THE PRINCIPAL, THE
PRINCIPAL OR OTHER PEOPLE MAY MAKE AN APPLICATION FOR A DIFFERENT SECUR-
ING ORDER DUE TO A MATERIAL CHANGE IN CIRCUMSTANCES.
2. (a) The principal is entitled to representation by counsel in the
making and presentation of such application. If the principal is finan-
cially unable to obtain counsel, counsel shall be assigned to the prin-
cipal.
(b) Upon such application, the principal must be accorded an opportu-
nity to be heard, present evidence and to contend that an order of
recognizance, release under non-monetary conditions or[, where author-
ized, bail must or should issue,] that the court should release the
principal on the principal's own recognizance or under non-monetary
conditions [rather than fix bail], and that if bail is authorized and
fixed it should be in a suggested amount and form.
(C) UPON SUCH APPLICATION, THE PEOPLE MUST BE ACCORDED AN OPPORTUNITY
TO BE HEARD, PRESENT EVIDENCE AND TO CONTEND THAT A DIFFERENT SECURING
ORDER MUST OR SHOULD ISSUE BECAUSE, DUE TO A MATERIAL CHANGE IN CIRCUM-
STANCES, THE CURRENT ORDER IS EITHER TOO RESTRICTIVE OR NOT RESTRICTIVE
ENOUGH TO REASONABLY ENSURE A PRINCIPAL'S APPEARANCE IN COURT. IN ACTING
UPON SUCH AN APPLICATION, THE COURT SHALL SELECT THE LEAST RESTRICTIVE
ALTERNATIVE THAT WILL REASONABLY ENSURE A COURT APPEARANCE.
§ 7. 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:
§ 510.30 Application for securing order; rules of law and criteria
controlling determination.
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. In determining that matter, the
court must, on the basis of available information, consider and take
S. 7156 4
into account information about the principal that is relevant to the
principal's return to court, including:
(a) [The] INFORMATION ABOUT THE principal's activities [and], history
AND COMMUNITY TIES THAT IS RELEVANT TO COURT APPEARANCE;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal's criminal conviction record if any; PROVIDED THAT
THE COURT MUST ALSO CONSIDER THE TIME THAT HAS ELAPSED SINCE THE OCCUR-
RENCE OF THE CRIME AND THE AGE OF THE PRINCIPAL AT THE TIME OF THE
OCCURRENCE OF SUCH DELINQUENT OR YOUTHFUL OFFENDER CONDUCT;
(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, IF ANY, RESPONDING TO COURT
APPEARANCES WHEN REQUIRED OR 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)] (G) If the principal is a defendant, in the case of an applica-
tion for a securing order pending appeal, the merit or lack of merit of
the appeal[.]; AND
(H) IF THE PRINCIPAL IS A DEFENDANT, THE SENTENCE WHICH MAY BE OR HAS
BEEN IMPOSED UPON CONVICTION.
2. Where the principal is a defendant-appellant in a pending appeal
from a judgment of conviction, the court must also consider the likeli-
hood of ultimate reversal of the judgment. A determination that the
appeal is palpably without merit alone justifies, but does not require,
a denial of the application, regardless of any determination made with
respect to the factors specified in subdivision one of this section.
[3. When bail or recognizance is ordered, the court shall inform the
principal, if the principal is a defendant charged with the commission
of a felony, that the release is conditional and that the court may
revoke the order of release and may be authorized to commit the princi-
pal to the custody of the sheriff in accordance with the provisions of
subdivision two of section 530.60 of this chapter if the principal
commits a subsequent felony while at liberty upon such order.]
§ 8. Section 510.40 of the criminal procedure law, as amended by
section 6 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 510.40 Court notification to principal of conditions of release and of
alleged violations of conditions of release.
1. Upon ordering that a principal be released on the principal's own
recognizance, or released under non-monetary conditions[, or, if bail
S. 7156 5
has been fixed, upon the posting of bail,] the court must direct the
principal to appear in the criminal action or proceeding involved when-
ever the principal's attendance may be required and to be at all times
amenable to the orders and processes of the court. If [such principal is
in the custody of the sheriff or at liberty upon bail at the time of the
order, the court must direct that the principal be discharged from such
custody or, as the case may be, that the principal's bail be exonerated]
THE PRINCIPAL IS A DEFENDANT, THE COURT SHALL ALSO DIRECT THE DEFENDANT
NOT TO COMMIT A CRIME WHILE AT LIBERTY UPON THE COURT'S SECURING ORDER.
2. [Upon the issuance of an order fixing bail, where authorized, and
upon the posting thereof, the court must examine the bail to determine
whether it complies with the order. If it does, the court must, in the
absence of some factor or circumstance which in law requires or author-
izes disapproval thereof, approve the bail and must issue a certificate
of release, authorizing the principal to be at liberty, and, if the
principal is in the custody of the sheriff at the time, directing the
sheriff to discharge the principal therefrom. If the bail fixed is not
posted, or is not approved after being posted, the court must order that
the principal be committed to the custody of the sheriff. In the event
of any such non-approval, the court shall explain promptly in writing
the reasons therefor.
3.] Non-monetary conditions of release shall be individualized and
established in writing by the court. THE COURT SHALL NOTIFY THE PRINCI-
PAL OF ANY OF THE CONDITIONS UNDER WHICH THE PRINCIPAL IS SUBJECT, IN
ADDITION TO THE DIRECTIONS IN SUBDIVISION ONE OF THIS SECTION, IN A
MANNER SUFFICIENTLY CLEAR AND SPECIFIC TO SERVE AS A GUIDE FOR THE PRIN-
CIPAL'S CONDUCT AND THE CONSEQUENCES FOR VIOLATIONS OF THOSE CONDITIONS,
WHICH COULD INCLUDE REVOKING OF THE SECURING ORDER, SETTING OF A MORE
RESTRICTIVE SECURING ORDER OR AFTER A MOTION AND A HEARING PRESCRIBED IN
ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE, PRETRIAL DETENTION. At
future court appearances, the court shall consider a lessening of condi-
tions or modification of conditions to a less burdensome form based on
the principal's compliance with such conditions of release. [In the
event of alleged non-compliance with the conditions of release in an
important respect, pursuant to this subdivision, additional conditions
may be imposed by the court, on the record or in writing, only after
notice of the facts and circumstances of such alleged non-compliance,
reasonable under the circumstances, affording the principal and the
principal's attorney and the people an opportunity to present relevant,
admissible evidence, relevant witnesses and to cross-examine witnesses,
and a finding by clear and convincing evidence that the principal
violated a condition of release in an important respect. Following such
a finding, in determining whether to impose additional conditions for
non-compliance, the court shall consider and may select conditions
consistent with the court's obligation to impose the least restrictive
condition or conditions that will reasonably assure the defendant's
return to court. The court shall explain on the record or in writing the
reasons for its determination and for any changes to the conditions
imposed.
4.] 3. (a) Electronic monitoring of a principal's location may be
ordered only if [the court finds, after notice, an opportunity to be
heard and an individualized determination explained on the record or in
writing, that the defendant qualifies for electronic monitoring in
accordance with subdivision twenty-one of section 500.10 of this title,
and no other realistic non-monetary condition or set of non-monetary
conditions will suffice to reasonably assure a principal's return to
S. 7156 6
court] THE DEFENDANT IS CHARGED WITH A FELONY OR A MISDEMEANOR CRIME
INVOLVING A PERSON OF THE SAME HOUSEHOLD AS DEFINED IN SUBDIVISION ONE
OF SECTION 530.11 OF THIS TITLE AND THE COURT FINDS, AFTER NOTICE AND AN
OPPORTUNITY TO BE HEARD, THAT NO OTHER NONMONETARY CONDITION OR SETS OF
CONDITIONS WILL REASONABLY ENSURE A PRINCIPAL'S RETURN TO COURT.
(b) The specific method of electronic monitoring of the principal's
location must be approved by the court. It must be the least restrictive
procedure and method that will reasonably assure the principal's return
to court, and unobtrusive to the greatest extent practicable.
(c) Electronic monitoring of the location of a principal may be
conducted only by a public entity under the supervision and control of a
county or municipality or a non-profit entity under contract to the
county, municipality or the state. A county or municipality shall be
authorized to enter into a contract with another county or municipality
in the state to monitor principals under non-monetary conditions of
release in its county, but counties, municipalities and the state shall
not contract with any private for-profit entity for such purposes.
(d) Electronic monitoring of a principal's location may be for a maxi-
mum period of sixty days, and may be renewed for such period, after
notice, an opportunity to be heard and a de novo, individualized deter-
mination in accordance with this subdivision, which shall be explained
on the record or in writing.
[A defendant subject to electronic location monitoring under this
subdivision shall be considered held or confined in custody for purposes
of section 180.80 of this chapter and shall be considered committed to
the custody of the sheriff for purposes of section 170.70 of the chap-
ter, as applicable.
5.] 4. If a principal is released under non-monetary conditions, the
court shall, on the record and in an individualized written document
provided to the principal, notify the principal, in plain language and a
manner sufficiently clear and specific:
(a) of any conditions to which the principal is subject, to serve as a
guide for the principal's conduct; and
(b) that the possible consequences for violation of such a condition
may include revocation of the securing order and the ordering of a more
restrictive securing order.
5. IN THE EVENT OF NONCOMPLIANCE WITH THE CONDITIONS OF RELEASE, THE
COURT, UPON MOTION BY THE PEOPLE AND ONLY AFTER AFFORDING THE DEFENDANT
AND DEFENDANT'S COUNSEL NOTICE OF THE ALLEGED NONCOMPLIANCE AND AN
OPPORTUNITY TO BE HEARD, MAY REVOKE AND MODIFY THE SECURING ORDER. IN
DETERMINING WHETHER TO REVOKE AND MODIFY THE SECURING ORDER, THE COURT
MUST CONSIDER THE FACTS, NATURE, WILLFULNESS AND THE SERIOUSNESS OF THE
NONCOMPLIANCE. THE COURT MAY ONLY SET A MORE RESTRICTIVE CONDITION OR
CONDITIONS IF IT FINDS THAT SUCH CONDITIONS ARE NECESSARY TO REASONABLY
ENSURE THE DEFENDANT'S APPEARANCE IN COURT.
§ 9. Section 510.43 of the criminal procedure law, as added by section
7 of part JJJ of chapter 59 of the laws of 2019, is amended to read as
follows:
§ 510.43 Court appearances: additional notifications.
The court or, upon direction of the court, a certified pretrial
services agency, shall notify all principals released under non-monetary
conditions and on recognizance of all court appearances in advance by
text message, telephone call, electronic mail or first class mail. The
chief administrator of the courts shall, pursuant to subdivision one of
section 10.40 of this chapter, develop a form which shall be offered to
the principal at court appearances. On such form, which upon completion
S. 7156 7
shall be retained in the court file, the principal may select one such
preferred manner of notice. IN NO INSTANCE, HOWEVER, SHALL THE PRINCI-
PAL'S FAILURE TO RECEIVE SUCH ADDITIONAL NOTIFICATIONS IN ADDITION TO
VERBAL NOTIFICATION AT COURT APPEARANCES, CONSTITUTE GROUNDS TO EXCUSE
THE PRINCIPAL'S FAILURE TO APPEAR AT COURT PROCEEDINGS.
§ 10. Article 520 of the criminal procedure law is REPEALED.
§ 11. The article heading of article 530 of the criminal procedure law
is amended to read as follows:
SECURING ORDERS [OF RECOGNIZANCE OR BAIL]
WITH RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS
AND PROCEEDINGS--WHEN AND BY WHAT
COURTS AUTHORIZED
§ 12. Section 530.10 of the criminal procedure law, as amended by
section 11 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 530.10 [Order of recognizance release under non-monetary conditions or
bail] SECURING ORDERS; in general.
Under circumstances prescribed in this article, a court, upon applica-
tion of a defendant charged with or convicted of an offense, is required
to issue a securing order for such defendant during the pendency of
either:
1. A criminal action based upon such charge; or
2. An appeal taken by the defendant from a judgment of conviction or a
sentence or from an order of an intermediate appellate court affirming
or modifying a judgment of conviction or a sentence.
§ 13. Subdivision 4 of section 530.11 of the criminal procedure law,
as amended by section 12 of part JJJ of chapter 59 of the laws of 2019,
is amended to read as follows:
4. When a person is arrested for an alleged family offense or an
alleged violation of an order of protection or temporary order of
protection or arrested pursuant to a warrant issued by the supreme or
family court, and the supreme or family court, as applicable, is not in
session, such person shall be brought before a local criminal court in
the county of arrest or in the county in which such warrant is return-
able pursuant to article one hundred twenty of this chapter. Such local
criminal court may issue any order authorized under subdivision eleven
of section 530.12 of this article, section one hundred fifty-four-d or
one hundred fifty-five of the family court act or subdivision three-b of
section two hundred forty or subdivision two-a of section two hundred
fifty-two of the domestic relations law, in addition to discharging
other arraignment responsibilities as set forth in this chapter. In
making such order, the local criminal court shall consider [de novo the
recommendation and] THE securing order, if any, made by the supreme or
family court as indicated on the warrant or certificate of warrant.
Unless the petitioner or complainant requests otherwise, the court, in
addition to scheduling further criminal proceedings, if any, regarding
such alleged family offense or violation allegation, shall make such
matter returnable in the supreme or family court, as applicable, on the
next day such court is in session.
§ 14. Subdivisions 9 and 11 of section 530.12 of the criminal proce-
dure law, subdivision 9 as amended by section 81 of subpart B of part C
of chapter 62 of the laws of 2011, subdivision 11 as amended by section
15 of part JJJ of chapter 59 of the laws of 2019, are amended to read as
follows:
9. If no warrant, order or temporary order of protection has been
issued by the court, and an act alleged to be a family offense as
S. 7156 8
defined in section 530.11 of this [chapter] ARTICLE is the basis of the
arrest, the magistrate shall permit the complainant to file a petition,
information or accusatory instrument and for reasonable cause shown,
shall thereupon hold such respondent or defendant, [admit to, fix or
accept bail,] ESTABLISH A SECURING ORDER or parole him or her for hear-
ing before the family court or appropriate criminal court as the
complainant shall choose in accordance with the provisions of section
530.11 of this [chapter] ARTICLE.
11. If a defendant is brought before the court for failure to obey any
lawful order issued under this section, or an order of protection issued
by a court of competent jurisdiction in another state, territorial or
tribal jurisdiction, and if, after hearing, the court is satisfied by
competent proof that the defendant has willfully failed to obey any such
order, the court may:
(a) revoke an order of recognizance or release under non-monetary
conditions or [revoke an order of bail or order forfeiture of such bail]
SECURING ORDER and commit the defendant to custody; or
(b) restore the case to the calendar when there has been an adjourn-
ment in contemplation of dismissal and commit the defendant to custody;
or
(c) revoke a conditional discharge in accordance with section 410.70
of this chapter and impose probation supervision or impose a sentence of
imprisonment in accordance with the penal law based on the original
conviction; or
(d) revoke probation in accordance with section 410.70 of this chapter
and impose a sentence of imprisonment in accordance with the penal law
based on the original conviction. In addition, if the act which consti-
tutes the violation of the order of protection or temporary order of
protection is a crime or a violation the defendant may be charged with
and tried for that crime or violation.
§ 15. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
procedure law, as amended by section 13 of part JJJ of chapter 59 of the
laws of 2019, is amended to read as follows:
(a) revoke an order of recognizance, release under non-monetary condi-
tions [or bail] and commit the defendant to custody; or
§ 16. 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:
§ 530.20 Securing order by local criminal court when action is pending
therein.
When a criminal action is pending in a local criminal court, such
court, upon application of a defendant, shall proceed as follows:
1. (a) In cases other than as described in paragraph (b) of this
subdivision 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,
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.
(b) [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
S. 7156 9
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 when
he or she stands charged with:
(i) 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;
(ii) a crime involving witness intimidation under section 215.15 of
the penal law;
(iii) a crime involving witness tampering under section 215.11, 215.12
or 215.13 of the penal law;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) criminal contempt in the second degree as defined in subdivi-
sion 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
(ix) 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.
(d) Notwithstanding the provisions of paragraphs (a) and (b) of this
subdivision, 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.
2. When the defendant is charged, by felony complaint, with a felony,
the court may, in its discretion, order recognizance, release under
non-monetary conditions, or, where authorized, bail or commit the
S. 7156 10
defendant to the custody of the sheriff except as otherwise provided in
subdivision one of this section or this subdivision:
(a) A city court, a town court or a village court may not order recog-
nizance or bail when (i) the defendant is charged with a class A felony,
or (ii) the defendant has two previous felony convictions;
(b)] NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, IN CASES WHERE
THE PEOPLE INDICATE THAT THEY INTEND TO MOVE FOR PRETRIAL DETENTION AS
SET FORTH IN ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE, THE COURT
MAY COMMIT THE DEFENDANT TO THE CUSTODY OF THE SHERIFF OR ISSUE A SECUR-
ING ORDER IN ACCORDANCE WITH ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS
TITLE.
2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, IN CASES WHERE THE
DEFENDANT IS FACING A CHARGE OF A CLASS A FELONY, OR IT APPEARS THAT THE
DEFENDANT HAS TWO PREVIOUS FELONY CONVICTIONS WITHIN THE MEANING OF
SUBDIVISION ONE OF SECTION 70.08 OR SECTION 70.10 OF THE PENAL LAW; THE
COURT SHALL COMMIT THE DEFENDANT TO THE CUSTODY OF THE SHERIFF FOR THE
COUNTY OR SUPERIOR COURT TO MAKE A DETERMINATION ABOUT A SECURING ORDER
WITHIN THREE DAYS.
3. No local criminal court may order recognizance, release under non-
monetary conditions [or bail] with respect to a defendant charged with a
felony unless and until[:
(i) The district attorney has been heard in the matter or, after know-
ledge or notice of the application and reasonable opportunity to be
heard, has failed to appear at the proceeding or has otherwise waived
his right to do so; and
(ii) The] THE court and counsel for the defendant have been furnished
with a report of the division of criminal justice services concerning
the defendant's criminal record, if any, or with a police department
report with respect to the defendant's prior arrest and conviction
record, if any. If neither report is available, the court, with the
consent of the district attorney, may dispense with this requirement;
provided, however, that in an emergency, including but not limited to a
substantial impairment in the ability of such division or police depart-
ment to timely furnish such report, such consent shall not be required
if, for reasons stated on the record, the court deems it unnecessary.
[When the court has been furnished with any such report or record, it
shall furnish a copy thereof to counsel for the defendant or, if the
defendant is not represented by counsel, to the defendant.]
§ 17. The section heading and subdivisions 1 and 2 of section 530.30
of the criminal procedure law, as amended by section 17 of part JJJ of
chapter 59 of the laws of 2019, are amended to read as follows:
Order of recognizance, release under non-monetary conditions [or
bail]; by superior court judge when action is pending in local criminal
court.
1. When a criminal action is pending in a local criminal court, other
than one consisting of a superior court judge sitting as such, a judge
of a superior court holding a term thereof in the county, upon applica-
tion of a defendant, may order recognizance, release under non-monetary
conditions or, [where authorized, bail] A SECURING ORDER when such local
criminal court:
(a) Lacks authority to issue such an order, pursuant to the relevant
provisions of section 530.20 of this article; or
(b) [Has denied an application for recognizance, release under non-
monetary conditions or bail; or
(c) Has fixed bail, where authorized, which is excessive; or
S. 7156 11
(d)] Has set a securing order of release under non-monetary conditions
which are more restrictive than necessary to reasonably assure the
defendant's return to court.
In such case, such superior court judge may vacate the order of such
local criminal court and release the defendant on recognizance or under
non-monetary conditions, [or where authorized, fix bail in a lesser
amount or in a less burdensome form,] whichever are the least restric-
tive alternative and conditions that will reasonably assure the defend-
ant's return to court. The court shall explain its choice of alternative
and conditions on the record or in writing.
2. Notwithstanding the provisions of subdivision one of this section,
when the defendant is charged with a felony in a local criminal court, a
superior court judge may not order recognizance, release under non-mone-
tary conditions or[, where authorized, bail unless and] ISSUE A SECURING
ORDER until the district attorney has had an opportunity to be heard in
the matter and such judge and counsel for the defendant have been
furnished with a report as described in [subparagraph (ii) of paragraph
(b) of] subdivision [two] THREE of section 530.20 of this article.
§ 18. 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 there-
in.
When a criminal action is pending in a superior court, such court,
upon application of a defendant, must or may order recognizance or
[bail] A SECURING ORDER as follows:
1. [When the defendant is charged with an offense or offenses of less
than felony grade only, the court must, unless otherwise provided by
law, order recognizance or release under non-monetary conditions in
accordance with this section.
2. When the defendant is charged with a felony, the court may, unless
otherwise provided by law in its discretion, order recognizance, release
under non-monetary conditions or, where authorized, bail. 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 recogni-
zance, release under non-monetary conditions or, where authorized, 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
S. 7156 12
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;
(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 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.] RELEASE THE PRINCIPAL PENDING TRIAL ON THE PRINCIPAL'S PERSONAL
RECOGNIZANCE, UNLESS THE COURT FINDS ON THE RECORD THAT RELEASE ON
RECOGNIZANCE WILL NOT REASONABLY ENSURE THE INDIVIDUAL'S COURT ATTEND-
S. 7156 13
ANCE. IN SUCH INSTANCES, THE COURT SHALL RELEASE THE INDIVIDUAL UNDER
NONMONETARY CONDITIONS, SELECTING THE LEAST RESTRICTIVE ALTERNATIVE THAT
WILL SUPPORT ITS CHOICE OF ALTERNATIVE ON THE RECORD.
2. NOTWITHSTANDING SUBDIVISION ONE OF THIS SECTION, IN CASES WHERE THE
PEOPLE INDICATE THAT THEY INTEND TO MOVE FOR PRETRIAL DETENTION AS SET
OUT IN ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE, THE COURT MAY
COMMIT THE DEFENDANT TO CUSTODY OF THE SHERIFF OR ISSUE A SECURING ORDER
IN ACCORDANCE WITH ARTICLE FIVE HUNDRED FORTY-FIVE OF THIS TITLE.
3. Notwithstanding the provisions of [subdivisions two, three and
four] SUBDIVISION ONE of this section, a superior court may not [order
recognizance, release under non-monetary conditions or, where author-
ized, bail,] ISSUE A SECURING ORDER 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 article one hundred thirty of the penal law commit-
ted 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.] 4. Notwithstanding the provisions of [subdivisions two, three and
four] SUBDIVISION ONE of this section, a superior court may not [order
recognizance, release under non-monetary conditions or, where author-
ized, bail] ISSUE A SECURING ORDER 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 para-
graph (b) of] subdivision [two] THREE of section 530.20 of this article.
§ 19. Subdivision 1 of section 530.45 of the criminal procedure law,
as amended by section 19 of part JJJ of chapter 59 of the laws of 2019,
is amended to read as follows:
1. When the defendant is at liberty in the course of a criminal action
as a result of a prior SECURING order [of recognizance, release under
non-monetary conditions or bail] and the court revokes such order [and
then, where authorized, fixes no bail or fixes bail in a greater amount
or in a more burdensome form than was previously fixed and remands or
commits defendant to the custody of the sheriff, or issues a more
restrictive securing order, a judge designated in subdivision two of
this section, upon application of the defendant following conviction of
an offense other than a class A felony or a class B or class C felony
offense as defined in article 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, and before
sentencing, may issue a securing order and release the defendant on the
defendant's own recognizance, release the defendant under non-monetary
conditions, or, where authorized, fix bail or fix bail in a lesser
amount or in a less burdensome form, or issue] THE COURT MAY ISSUE A
MORE RESTRICTIVE SECURING ORDER IN a less restrictive [securing order,]
FORM than fixed by the court in which the conviction was entered.
§ 20. Section 530.60 of the criminal procedure law is REPEALED.
§ 21. The criminal procedure law is amended by adding a new article
545 to read as follows:
ARTICLE 545 -- PRETRIAL DETENTION
SECTION 545.10 PRETRIAL DETENTION; WHEN ORDERED.
545.20 ELIGIBILITY FOR A PRETRIAL DETENTION HEARING.
545.30 PRETRIAL DETENTION HEARING.
545.40 ORDER FOR PRETRIAL DETENTION.
S. 7156 14
545.50 REOPENING OF PRETRIAL HEARING.
545.60 LENGTH OF DETENTION FOR DEFENDANT HELD UNDER A PRETRIAL
DETENTION ORDER.
545.70 OVERSIGHT BOARD FOR PRETRIAL DETENTION.
§ 545.10 PRETRIAL DETENTION; WHEN ORDERED.
A COUNTY OR SUPERIOR COURT MAY ORDER, BEFORE TRIAL, THE DETENTION OF A
DEFENDANT IF THE PEOPLE SEEK DETENTION OF THE DEFENDANT UNDER SECTION
545.20 OF THIS ARTICLE, AND, AFTER A HEARING PURSUANT TO SECTION 545.30
OF THIS ARTICLE, THE COURT FINDS CLEAR AND CONVINCING EVIDENCE THAT THE
DEFENDANT POSES A HIGH RISK OF FLIGHT BEFORE TRIAL, OR THAT THE DEFEND-
ANT POSES A CURRENT THREAT TO THE PHYSICAL SAFETY OF A REASONABLY IDEN-
TIFIABLE PERSON OR PERSONS, AND THAT NO CONDITIONS OR COMBINATION OF
CONDITIONS IN THE COMMUNITY WILL SUFFICE TO CONTAIN THE AFORESAID RISK
OR THREAT. THERE SHALL BE A REBUTTABLE PRESUMPTION, EXCEPT IN THE
CIRCUMSTANCES OUTLINED IN SUBDIVISION FOUR OF SECTION 545.30 OF THIS
ARTICLE THAT SOME CONDITION OR CONDITIONS IN THE COMMUNITY WILL REASON-
ABLY CONTAIN A HIGH RISK OF FLIGHT OR A CURRENT THREAT TO THE PHYSICAL
SAFETY OF A REASONABLY IDENTIFIABLE PERSON OR PERSONS. THAT PRESUMPTION
MAY ONLY BE OVERCOME BY CLEAR AND CONVINCING EVIDENCE.
§ 545.20 ELIGIBILITY FOR A PRETRIAL DETENTION HEARING.
1. THE PEOPLE MAY MAKE A MOTION TO THE COURT AT ANY TIME SEEKING THE
PRETRIAL DETENTION OF A DEFENDANT.
2. UPON SUCH MOTION BY THE PEOPLE, THE DEFENDANT MAY BE COMMITTED TO
THE CUSTODY OF THE SHERIFF PENDING A HEARING ON THE PEOPLE'S MOTION, OR
THE COURT MAY ISSUE A SECURING ORDER. THE COURT SHALL SUPPORT ITS CHOICE
OF AN ALTERNATIVE ON THE RECORD. IF THE PERSON IS AT LIBERTY, A WARRANT
SHALL BE ISSUED AND THE DEFENDANT BROUGHT INTO CUSTODY OF THE SHERIFF.
§ 545.30 PRETRIAL DETENTION HEARING.
1. A HEARING SHALL BE HELD WITHIN THREE WORKING DAYS FROM THE PEOPLE'S
MOTION. AT THE HEARING, THE DEFENDANT SHALL HAVE THE RIGHT TO BE REPRES-
ENTED BY COUNSEL, AND, IF FINANCIALLY UNABLE TO OBTAIN COUNSEL, TO HAVE
COUNSEL ASSIGNED. THE DEFENDANT SHALL BE AFFORDED AN OPPORTUNITY TO
TESTIFY, TO PRESENT WITNESSES, TO CROSS-EXAMINE WITNESSES WHO APPEAR AT
THE HEARING, AND TO PRESENT INFORMATION BY PROFFER OR OTHERWISE. THE
RULES CONCERNING THE ADMISSIBILITY OF EVIDENCE IN CRIMINAL TRIALS DO NOT
APPLY TO THE PRESENTATION AND CONSIDERATION OF INFORMATION DURING THE
HEARING.
2. (A) WITHIN AT LEAST TWENTY-FOUR HOURS OF THE HEARING, THE PEOPLE
SHALL DISCLOSE TO THE DEFENDANT AND PERMIT THE DEFENDANT TO INSPECT,
COPY OR PHOTOGRAPH ALL STATEMENTS AND REPORTS THAT ARE IN THE
POSSESSION, CUSTODY OR CONTROL OF THE PEOPLE, OR PERSONS UNDER THE
PEOPLE'S DIRECTION AND CONTROL THAT:
(I) THE PEOPLE RELY UPON TO ESTABLISH REASONABLE CAUSE THAT THE
DEFENDANT COMMITTED THE ALLEGED CRIME OR CRIMES; AND
(II) RELATE TO THE PEOPLE'S BASIS FOR THE PRETRIAL DETENTION MOTION
THAT EITHER THE DEFENDANT PRESENTS A HIGH RISK OF FLIGHT OR A CURRENT
THREAT TO THE PHYSICAL SAFETY OF A REASONABLY IDENTIFIABLE PERSON OR
PERSONS.
(B) IN ADDITION, THE PEOPLE WILL PRODUCE ANY STATEMENTS THAT ARE
EXCULPATORY IN NATURE.
(C) PORTIONS OF MATERIALS CLAIMED TO BE NON-DISCOVERABLE MAY BE WITH-
HELD PENDING A DETERMINATION AND RULING OF THE COURT UNDER SECTION
245.70 OF THIS CHAPTER; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING
THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED UNDER A PARTICULAR SUBDIVI-
SION OF SUCH SECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE.
S. 7156 15
3. IN HEARINGS IN CASES FOR WHICH THERE IS NO INDICTMENT, THE PEOPLE
SHALL ESTABLISH REASONABLE CAUSE THAT THE ELIGIBLE DEFENDANT COMMITTED
THE CHARGED OFFENSE. THE PEOPLE MUST ESTABLISH BY CLEAR AND CONVINCING
EVIDENCE THAT THE DEFENDANT POSES A HIGH RISK OF FLIGHT OR A CURRENT
THREAT OF PHYSICAL DANGER TO A REASONABLY IDENTIFIABLE PERSON OR PERSONS
AND THAT NO CONDITIONS OR COMBINATION OF CONDITIONS IN THE COMMUNITY
WILL SUFFICE TO CONTAIN THE AFORESAID RISK OR THREAT.
4. THERE SHALL BE A REBUTTABLE PRESUMPTION, WHICH THE DEFENDANT MAY
OVERCOME BY A PREPONDERANCE OF THE EVIDENCE, THAT NO CONDITIONS OR
COMBINATION OF CONDITIONS IN THE COMMUNITY WILL SUFFICE TO CONTAIN A
CURRENT THREAT TO THE PHYSICAL SAFETY OF A REASONABLY IDENTIFIABLE
PERSON OR PERSONS IF THE COURT FINDS REASONABLE CAUSE THAT THE DEFEND-
ANT:
(A) COMMITTED A CRIME FOR WHICH THE DEFENDANT WOULD BE SUBJECT TO A
TERM OF LIFE IMPRISONMENT;
(B) COMMITTED A CRIME INVOLVING SERIOUS PHYSICAL INJURY OR THREAT OF
SERIOUS PHYSICAL INJURY, OR ATTEMPT THEREIN, WHILE THE DEFENDANT WAS IN
THE COMMUNITY ON RECOGNIZANCE OR UNDER NON-MONETARY CONDITIONS FOR A
CRIME INVOLVING SERIOUS PHYSICAL INJURY OR THE THREAT OF SERIOUS PHYS-
ICAL INJURY; OR
(C) THREATENED, INJURED, INTIMIDATED, OR ATTEMPTED TO THREATEN, INJURE
OR INTIMIDATE A PROSPECTIVE WITNESS OR JUROR IN A CRIMINAL INVESTIGATION
OR JUDICIAL PROCEEDING.
5. IN DETERMINING WHETHER THE DEFENDANT PRESENTS A HIGH RISK OF FLIGHT
OR A CURRENT THREAT OF PHYSICAL DANGER TO A REASONABLY IDENTIFIABLE
PERSON OR PERSONS AND WHETHER NO CONDITIONS OR COMBINATIONS OF CONDI-
TIONS IN THE COMMUNITY WILL SUFFICE TO CONTAIN SUCH RISK OR THREAT, THE
COURT MAY TAKE INTO ACCOUNT THE FOLLOWING INFORMATION:
(A) THE NATURE AND CIRCUMSTANCES OF THE CHARGED OFFENSE;
(B) THE WEIGHT OF THE EVIDENCE AGAINST THE DEFENDANT, EXCEPT THAT THE
COURT MAY CONSIDER THE ADMISSIBILITY OF ANY EVIDENCE SOUGHT TO BE
EXCLUDED;
(C) THE DEFENDANT'S CURRENT AND PRIOR HISTORY OF FAILURE TO APPEAR IN
COURT WHETHER SUCH FAILURES TO APPEAR WERE WILLFUL;
(D) THE NATURE AND THE CREDIBILITY OF THE THREAT TO THE PHYSICAL
DANGER OF A REASONABLY IDENTIFIABLE PERSON OR PERSONS, IF APPLICABLE;
AND
(E) WHETHER, AT THE TIME OF THE CURRENT OFFENSE OR ARREST, THE DEFEND-
ANT WAS ON PROBATION, PAROLE, OR ON RELEASE PENDING TRIAL, SENTENCING OR
COMPLETION OF A SENTENCE IN THIS STATE OR OTHER JURISDICTIONS.
§ 545.40 ORDER FOR PRETRIAL DETENTION.
IN A PRETRIAL DETENTION ORDER ISSUED PURSUANT TO SECTION 545.10 OF
THIS ARTICLE, THE COURT SHALL:
1. INCLUDE WRITTEN FINDINGS OF FACT AND A WRITTEN STATEMENT OF THE
REASONS FOR THE DETENTION; AND
2. DIRECT THAT THE ELIGIBLE DEFENDANT BE AFFORDED REASONABLE OPPORTU-
NITY FOR PRIVATE CONSULTATION WITH COUNSEL.
§ 545.50 REOPENING OF PRETRIAL HEARING.
A PRETRIAL DETENTION HEARING MAY BE OPENED, BEFORE OR AFTER ISSUANCE
OF A PRETRIAL DETENTION ORDER BY THE COURT, BY MOTION OF THE PEOPLE OR
THE DEFENDANT, AT ANY TIME BEFORE TRIAL, IF THE COURT FINDS EITHER A
CHANGE OF CIRCUMSTANCES OR THAT INFORMATION EXISTS THAT WAS NOT KNOWN TO
THE PEOPLE OR TO THE DEFENDANT AT THE TIME OF THE HEARING, THAT HAS A
MATERIAL BEARING ON THE ISSUE OF WHETHER THE DEFENDANT PRESENTS A HIGH
RISK OR FAILURE TO APPEAR OR A CURRENT THREAT TO THE PHYSICAL SAFETY OF
S. 7156 16
A REASONABLY IDENTIFIABLE PERSON OR PERSONS AND WHETHER NO CONDITIONS OR
COMBINATION OF CONDITIONS WILL SUFFICE TO CONTAIN SUCH RISK OR THREAT.
§ 545.60 LENGTH OF DETENTION FOR DEFENDANT HELD UNDER A PRETRIAL
DETENTION ORDER.
1. IF A PRETRIAL DETENTION ORDER IS ISSUED, A DEFENDANT SHALL NOT
REMAIN DETAINED IN JAIL FOR MORE THAN ONE HUNDRED EIGHTY DAYS AFTER THE
RETURN OF THE INDICTMENT, IF APPLICABLE, UNTIL THE START OF TRIAL. IN
CASES WHERE NO INDICTMENT IS REQUIRED, THE DEFENDANT SHALL NOT REMAIN
DETAINED IN JAIL FOR MORE THAN NINETY DAYS FROM THE DATE OF THE PRETRIAL
DETENTION MOTION UNTIL THE START OF TRIAL.
2. (A) THE TIME WITHIN WHICH THE TRIAL OF THE CASE COMMENCES MAY BE
EXTENDED FOR ONE OR MORE ADDITIONAL PERIODS NOT TO EXCEED TWENTY DAYS
EACH ON THE BASIS OF A MOTION SUBMITTED BY THE PEOPLE AND APPROVED BY
THE COURT. THE ADDITIONAL PERIOD OR PERIODS OF DETENTION MAY BE GRANTED
ONLY ON THE BASIS OF GOOD CAUSE SHOWN, AND SHALL BE GRANTED ONLY FOR THE
ADDITIONAL TIME REQUIRED TO PREPARE FOR THE TRIAL OF THE PERSON. GOOD
CAUSE MAY INCLUDE, BUT NOT BE LIMITED TO, THE UNAVAILABILITY OF AN
ESSENTIAL WITNESS, THE NECESSITY FOR FORENSIC ANALYSIS OF EVIDENCE, THE
ABILITY TO CONDUCT A JOINT TRIAL WITH A CO-DEFENDANT OR CO-DEFENDANTS,
SEVERANCE OF CO-DEFENDANTS WHICH PERMITS ONLY ONE TRIAL TO COMMENCE
WITHIN THE TIME PERIOD, COMPLEX OR MAJOR INVESTIGATIONS, SCHEDULING
CONFLICTS WHICH ARISE SHORTLY BEFORE THE TRIAL DATE, THE INABILITY TO
PROCEED TO TRIAL BECAUSE OF ACTION TAKEN BY OR AT THE BEHEST OF THE
DEFENDANT, THE BREAKDOWN OF A PLEA AGREEMENT ON OR IMMEDIATELY BEFORE
THE TRIAL DATE, AND ALLOWING REASONABLE TIME TO PREPARE FOR A TRIAL
AFTER THE CIRCUMSTANCES GIVING RISE TO A TOLLING OR EXTENSION OF THE
TIME PERIOD NO LONG EXISTS.
(B) IN COMPUTING THE ONE HUNDRED EIGHTY DAYS FROM INDICTMENT, IF
APPLICABLE, OR IF NO INDICTMENT IS REQUIRED, NINETY DAYS FROM THE DATE
OF THE PRETRIAL ORDER, TO COMMENCEMENT OF TRIAL, THE FOLLOWING PERIODS
SHALL BE EXCLUDED:
(I) ANY PERIOD FROM THE FILING OF THE NOTICE OF APPEAL TO THE ISSUANCE
OF THE MANDATE IN AN INTERLOCUTORY APPEAL;
(II) ANY PERIOD ATTRIBUTABLE TO ANY EXAMINATION TO DETERMINE THE
DEFENDANT'S SANITY OR LACK THEREOF OR HIS OR HER MENTAL OR PHYSICAL
COMPETENCY TO STAND TRIAL;
(III) ANY PERIOD ATTRIBUTABLE TO THE INABILITY OF THE DEFENDANT TO
PARTICIPATE IN THE DEFENDANT'S DEFENSE BECAUSE OF MENTAL INCOMPETENCY OR
PHYSICAL INCAPACITY; AND
(IV) ANY PERIOD IN WHICH THE DEFENDANT IS OTHERWISE UNAVAILABLE FOR
TRIAL.
3. IF A TRIAL HAS NOT COMMENCED WITHIN ONE HUNDRED EIGHTY DAYS FROM
INDICTMENT, IF APPLICABLE, OR NINETY DAYS FROM THE PRETRIAL DETENTION
ORDER IF NO INDICTMENT IS REQUIRED, AS CALCULATED ABOVE, AND THE DEFEND-
ANT REMAINS IN CUSTODY, THE DEFENDANT SHALL BE RELEASED ON RECOGNIZANCE
OR UNDER NON-MONETARY CONDITIONS OF RELEASE PENDING TRIAL ON THE UNDER-
LYING CHARGE, UNLESS:
(A) THE TRIAL IS IN PROGRESS;
(B) THE TRIAL HAS BEEN DELAYED BY THE TIMELY FILING OF MOTIONS,
EXCLUDING MOTIONS FOR CONTINUANCES;
(C) THE TRIAL HAS BEEN DELAYED AT THE REQUEST OF THE DEFENDANT; OR
(D) UPON MOTION OF THE PEOPLE, THE COURT FINDS THAT A CURRENT SUBSTAN-
TIAL AND UNJUSTIFIABLE RISK TO THE PHYSICAL SAFETY OF A REASONABLY IDEN-
TIFIABLE PERSON WOULD RESULT FROM THE DEFENDANT'S RELEASE FROM CUSTODY,
AND THAT NO APPROPRIATE CONDITIONS FOR THE DEFENDANT'S RELEASE WOULD
REASONABLY ADDRESS THAT RISK, AND ALSO FINDS THAT THE FAILURE TO
S. 7156 17
COMMENCE TRIAL IN ACCORDANCE WITH THE TIME REQUIREMENTS SET FORTH IN
THIS SECTION WAS NOT DUE TO UNREASONABLE DELAY BY THE PEOPLE. IF THE
COURT MAKES SUCH A FINDING, THE COURT MUST SET AN ADDITIONAL PERIOD OF
TIME, NOT TO EXCEED THIRTY DAYS, IN WHICH THE DEFENDANT'S TRIAL MUST
COMMENCE. IF THE TRIAL DOES NOT COMMENCE WITHIN THIS PERIOD, THE DEFEND-
ANT MUST BE RELEASED ON RECOGNIZANCE OR UNDER NON-MONETARY CONDITIONS.
§ 545.70 OVERSIGHT BOARD FOR PRETRIAL DETENTION.
THE DEFENDANT OR THE PEOPLE MAY MAKE A MOTION TO APPEAL TO AN OVER-
SIGHT BOARD FOR PRETRIAL DETENTION. THE PRETRIAL DETENTION OVERSIGHT
BOARD SHALL BE COMPRISED OF FIVE MEMBERS AND INCLUDE THE FOLLOWING: TWO
SITTING JUDGES, TWO ASSISTANT DISTRICT ATTORNEYS, AND ONE DEFENSE ATTOR-
NEY, TO BE APPOINTED BY THE GOVERNOR AND CONFIRMED BY THE SENATE. THE
MEMBERS SHALL SERVE FOR A PERIOD OF TWO YEARS. IN THE EVENT OF A VACANCY
OCCURRING DURING A TERM OF APPOINTMENT BY REASON OF DEATH, RESIGNATION,
DISQUALIFICATION OR OTHERWISE SUCH VACANCY SHALL BE FILLED FOR THE UNEX-
PIRED TERM IN THE SAME MANNER AS THE ORIGINAL APPOINTMENT. THE MEMBERS
OF THE BOARD SHALL SERVE WITHOUT COMPENSATION, EXCEPT THAT EACH MEMBER
SHALL BE ALLOWED THEIR NECESSARY AND ACTUAL EXPENSES INCURRED IN THE
PERFORMANCE OF HIS OR HER DUTIES PURSUANT TO THIS SECTION. THE OVERSIGHT
BOARD WILL BE AUTHORIZED TO OVERRULE ANY FINDING FOR OR AGAINST PRETRIAL
DETENTION.
§ 22. Article 68 of the insurance law is REPEALED.
§ 23. Paragraphs (a) and (c) of subdivision 9 of section 216.05 of the
criminal procedure law, paragraph (a) as amended by section 21 of part
JJJ of chapter 59 of the laws of 2019, and paragraph (c) as added by
section 4 of part AAA of chapter 56 of the laws of 2009, are amended to
read as follows:
(a) If at any time during the defendant's participation in the judi-
cial diversion program, the court has reasonable grounds to believe that
the defendant has violated a release condition in an important respect
or has willfully failed to appear before the court as requested, the
court except as provided in subdivision two of section 510.50 of this
chapter regarding a failure to appear, shall direct the defendant to
appear or issue a bench warrant to a police officer or an appropriate
peace officer directing him or her to take the defendant into custody
and bring the defendant before the court without unnecessary delay;
provided, however, that under no circumstances shall a defendant who
requires treatment for opioid abuse or dependence be deemed to have
violated a release condition on the basis of his or her participation in
medically prescribed drug treatments under the care of a health care
professional licensed or certified under title eight of the education
law, acting within his or her lawful scope of practice. The relevant
provisions of section [530.60] 530.10 of this chapter relating to issu-
ance of securing orders shall apply to such proceedings under this
subdivision.
(c) If the court determines that the defendant has violated a condi-
tion of his or her release under the judicial diversion program, the
court may modify the conditions thereof, reconsider the order of recog-
nizance or [bail] A SECURING ORDER pursuant to subdivision two of
section 510.30 of this chapter, or terminate the defendant's partic-
ipation in the judicial diversion program; and when applicable proceed
with the defendant's sentencing in accordance with the agreement.
Notwithstanding any provision of law to the contrary, the court may
impose any sentence authorized for the crime of conviction in accordance
with the plea agreement, or any lesser sentence authorized to be imposed
on a felony drug offender pursuant to paragraph (b) or (c) of subdivi-
S. 7156 18
sion two of section 70.70 of the penal law taking into account the
length of time the defendant spent in residential treatment and how best
to continue treatment while the defendant is serving that sentence. In
determining what action to take for a violation of a release condition,
the court shall consider all relevant circumstances, including the views
of the prosecutor, the defense and the alcohol or substance abuse treat-
ment provider, and the extent to which persons who ultimately success-
fully complete a drug treatment regimen sometimes relapse by not
abstaining from alcohol or substance abuse or by failing to comply fully
with all requirements imposed by a treatment program. The court shall
also consider using a system of graduated and appropriate responses or
sanctions designed to address such inappropriate behaviors, protect
public safety and facilitate, where possible, successful completion of
the alcohol or substance abuse treatment program.
§ 24. Section 410.60 of the criminal procedure law, as amended by
section 23 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 410.60 Appearance before court.
A person who has been taken into custody pursuant to section 410.40 or
section 410.50 of this article for violation of a condition of a
sentence of probation or a sentence of conditional discharge must forth-
with be brought before the court that imposed the sentence. Where a
violation of probation petition and report has been filed and the person
has not been taken into custody nor has a warrant been issued, an
initial court appearance shall occur within ten business days of the
court's issuance of a notice to appear. If the court has reasonable
cause to believe that such person has violated a condition of the
sentence, it may commit such person to the custody of the sheriff, [fix
bail,] release such person under non-monetary conditions or release such
person on such person's own recognizance for future appearance at a
hearing to be held in accordance with section 410.70 of this article. If
the court does not have reasonable cause to believe that such person has
violated a condition of the sentence, it must direct that such person be
released.
§ 25. Subdivisions 2 and 3 of section 620.50 of the criminal proce-
dure law, subdivision 3 as amended by section 24 of part JJJ of chapter
59 of the laws of 2019, are amended to read as follows:
2. If the court is satisfied after such hearing that there is reason-
able cause to believe that the prospective witness (a) possesses infor-
mation material to the pending action or proceeding, and (b) will not be
amenable or respond to a subpoena at a time when [his] THE WITNESS'
attendance will be sought, it may issue a material witness order,
adjudging [him] THE INDIVIDUAL a material witness [and fixing bail to
secure his] AND RELEASING THE INDIVIDUAL ON THE INDIVIDUAL'S OWN RECOG-
NIZANCE UNLESS THE COURT FINDS ON THE RECORD THAT RELEASE ON RECOGNI-
ZANCE WILL NOT REASONABLY ENSURE THE INDIVIDUAL'S COURT ATTENDANCE. IN
SUCH INSTANCES THE COURT WILL RELEASE THE INDIVIDUAL UNDER NON-MONETARY
CONDITIONS, SELECTING THE LEAST RESTRICTIVE ALTERNATIVE THAT WILL
REASONABLY ENSURE THAT INDIVIDUAL'S future attendance.
3. [A] WHEN A material witness order [must be] IS executed [as
follows:
(a) If the bail is posted and approved by the court,] the witness
must[, as provided in subdivision two of section 510.40 of this part,]
be released and be permitted to remain at liberty[; provided that, where
the bail is posted by a person other than the witness himself, he may
not be so released except upon his signed written consent thereto;
S. 7156 19
(b) If the bail is not posted, or if though posted it is not approved
by the court, the witness must, as provided in subdivision two of
section 510.40 of this part, be committed to the custody of the sher-
iff].
§ 26. Section 216 of the judiciary law is amended by adding a new
subdivision 5 to read as follows:
5. (A) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL COLLECT DATA AT
ARRAIGNMENT ON ALL PRETRIAL RELEASE AND DETENTION DECISIONS, INCLUDING
INFORMATION ON SEX, RACE, CRIMINAL CHARGE, THE PRETRIAL RELEASE DECISION
OUTCOME, WHETHER THE INDIVIDUAL WAS DETAINED, WHETHER ELECTRONIC MONI-
TORING WAS IMPOSED, AND INFORMATION ON ANY PRETRIAL MOTIONS MADE, AND
MOTIONS GRANTED.
(B) THE OFFICE OF COURT ADMINISTRATION SHALL PROVIDE DATA AND INFORMA-
TION TO THE DIVISION OF CRIMINAL JUSTICE SERVICES WHICH WILL PREPARE AN
ANNUAL REPORT ON PRETRIAL RELEASE AND DETENTION OUTCOMES, AND INCLUDE
INFORMATION ON THE SEX, RACE, CRIMINAL CHARGE, PRETRIAL DECISION
OUTCOMES, THE USE OF ELECTRONIC MONITORING, PRETRIAL MOTIONS, RATES OF
FAILURE TO APPEAR AND RATES OF REARREST FOR INDIVIDUALS RELEASED BEFORE
TRIAL. THE REPORT SHALL ALSO INCLUDE INFORMATION ON PRETRIAL SERVICE
AGENCY ACTIVITY.
§ 27. This act shall take effect January 1, 2021.
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