S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5984
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 4, 2021
                                ___________
 
 Introduced  by  M.  of  A.  WALKER,  SIMON,  PERRY,  TAYLOR,  GOTTFRIED,
   L. ROSENTHAL,  JEAN-PIERRE,  SEAWRIGHT,  WEPRIN,  PICHARDO,  WILLIAMS,
   COOK,  DICKENS,  DAVILA,  PRETLOW  --  read  once  and referred to the
   Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to the  issuance
   of securing orders and in relation to making conforming changes
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The criminal procedure law  is  amended  by  adding  a  new
 section 510.25 to read as follows:
 § 510.25 REHEARING AFTER FIVE DAYS IN CUSTODY.
   1.  IN ADDITION TO ANY OTHER AVAILABLE PRE-CONVICTION MOTION OR PROCE-
 DURE, A PRINCIPAL FOR WHOM BAIL IS AUTHORIZED AND WAS FIXED, OR WHO  WAS
 REMANDED  TO  THE  CUSTODY  OF  THE  SHERIFF BUT IS LEGALLY ELIGIBLE FOR
 RELEASE, AND WHO IS IN CUSTODY FIVE DAYS THEREAFTER,  SHALL  BE  BROUGHT
 BEFORE  THE  COURT  THE  NEXT BUSINESS DAY FOR A HEARING ON THE SECURING
 ORDER.
   2. THE PEOPLE MUST ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT THE
 PRINCIPAL POSES A SIGNIFICANT RISK OF INTENTIONAL FLIGHT TO AVOID PROSE-
 CUTION, AND THAT NO CONDITION OR COMBINATION OF CONDITIONS WILL  REASON-
 ABLY ASSURE THE PRINCIPAL'S RETURN TO COURT. WHERE THE PRINCIPAL HAS NOT
 BEEN  INDICTED, AND REASONABLE CAUSE HAS NOT PREVIOUSLY BEEN ESTABLISHED
 PURSUANT TO THE RELEVANT PROVISIONS OF SECTIONS 180.60,  180.70,  180.75
 AND  180.80 OF THIS CHAPTER OR THIS SECTION, THE PEOPLE MUST ALSO ESTAB-
 LISH PROBABLE CAUSE THAT THE PRINCIPAL COMMITTED THE CHARGED OFFENSE.
   3. IF THE PEOPLE FAIL PURSUANT TO SUBDIVISION TWO OF THIS  SECTION  TO
 ESTABLISH  THAT  THE  PRINCIPAL  POSES A SIGNIFICANT RISK OF INTENTIONAL
 FLIGHT TO AVOID PROSECUTION AND THAT NO OTHER CONDITION  OR  COMBINATION
 OF CONDITIONS WILL REASONABLY ASSURE THE PRINCIPAL'S RETURN TO COURT, OR
 IN  A CASE WHERE THERE IS NO INDICTMENT AND NO PREVIOUS FINDING PURSUANT
 TO SECTIONS 180.60, 180.70, 180.75 AND 180.80 OR THIS  SECTION  AND  THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08045-01-1

 A. 5984                             2
 
 PEOPLE FAIL TO ESTABLISH PROBABLE CAUSE THAT THE DEFENDANT COMMITTED THE
 CHARGED  OFFENSE,  THE COURT SHALL, BY A NEW SECURING ORDER, RELEASE THE
 PRINCIPAL ON THE  PRINCIPAL'S  OWN  RECOGNIZANCE  OR,  WHERE  AUTHORIZED
 PURSUANT  TO THIS TITLE AND ARTICLES ONE HUNDRED SEVENTY AND ONE HUNDRED
 EIGHTY OF THIS CHAPTER,  UNDER  NON-MONETARY  CONDITIONS,  EXCEPT  WHERE
 ANOTHER TYPE OF SECURING ORDER IS SHOWN TO BE REQUIRED BY LAW.
   4.  AT  THE  HEARING, THE PRINCIPAL SHALL HAVE THE RIGHT TO BE REPRES-
 ENTED BY COUNSEL AND, IF FINANCIALLY UNABLE TO OBTAIN COUNSEL,  TO  HAVE
 COUNSEL  ASSIGNED.  THE  PRINCIPAL  SHALL  BE AFFORDED AN OPPORTUNITY TO
 TESTIFY, PRESENT WITNESSES, CROSS-EXAMINE WITNESSES WHO  APPEAR  AT  THE
 HEARING  AND  PRESENT  INFORMATION  BY PROFFER OR OTHERWISE.  THE PROSE-
 CUTION MUST PRESENT COMPETENT, RELIABLE EVIDENCE AND  MAY  NOT  RELY  ON
 HEARSAY EVIDENCE TO SATISFY ITS BURDEN.
   5.  PRIOR  TO  THE  HEARING,  IN ADDITION TO THE DISCOVERY REQUIRED BY
 SECTION 240.44 OF THIS CHAPTER, AND SUBJECT TO A PROTECTIVE  ORDER,  THE
 PROSECUTION SHALL DISCLOSE TO THE PRINCIPAL, AND PERMIT THE PRINCIPAL TO
 DISCOVER,  INSPECT,  COPY  OR PHOTOGRAPH, ON AN ONGOING BASIS CONTINUING
 AFTER SUCH HEARING, ALL STATEMENTS AND REPORTS THAT RELATE OR RELATED TO
 THE PROSECUTION'S REQUEST FOR  CONTINUED  DETENTION  WHICH  ARE  IN  THE
 POSSESSION,  CUSTODY OR CONTROL OF THE PROSECUTION, OR PERSONS UNDER THE
 PROSECUTION'S DIRECTION AND CONTROL, INCLUDING:
   A. THE CHARGING DOCUMENTS, SUCH AS THE COMPLAINT AND ANY  INFORMATION,
 AND THE DOCUMENTS AND MATERIALS SUPPORTING THE CHARGING DOCUMENTS;
   B. POLICE AND LAW ENFORCEMENT REPORTS;
   C. ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR
 RECORDING, AND THE SUBSTANCE OF ALL ORAL STATEMENTS, MADE BY THE PRINCI-
 PAL OR A CO-DEFENDANT;
   D. ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR
 RECORDING, MADE BY PERSONS WHOM THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR
 INFORMATION  THAT  RELATES TO THE SUBJECT MATTER OF THE CASE OR PROCEED-
 ING;
   E. ALL STATEMENTS OR REPORTS ON WHICH, AS APPLICABLE, THE  PROSECUTION
 INTENDS TO RELY OR RELIED AT THE HEARING; AND
   F.  ALL  FACTS,  EVIDENCE  AND INFORMATION FAVORABLE TO THE PRINCIPAL,
 INCLUDING BUT NOT LIMITED TO INFORMATION THAT TENDS TO  NEGATE  RISK  OF
 FLIGHT  OR  THE  PRINCIPAL'S GUILT OR THAT TENDS TO MITIGATE THE PRINCI-
 PAL'S CULPABILITY AS TO A CHARGED OFFENSE, OR THAT TENDS  TO  SUPPORT  A
 POTENTIAL DEFENSE THERETO, OR THAT TENDS TO SUPPORT A MOTION TO SUPPRESS
 EVIDENCE  ON CONSTITUTIONAL OR STATUTORY GROUNDS, OR THAT IS RELEVANT TO
 A WITNESS'S CREDIBILITY, WITHOUT REGARD TO THE MATERIALITY OF THE INFOR-
 MATION, OR THAT WOULD TEND TO MITIGATE OR REDUCE PUNISHMENT IF THE PRIN-
 CIPAL WERE CONVICTED.
   6. THIS  PROCESS  SHALL  CONTINUE  WITH  ADDITIONAL  REHEARINGS,  HELD
 PROMPTLY  ON  REASONABLE  WRITTEN  REQUEST  OF  DEFENSE COUNSEL, MADE ON
 NOTICE TO THE PEOPLE.
   § 2. Paragraphs (c), (d) and (e) of subdivision 1 of section 510.30 of
 the criminal procedure law, as amended by section 5 of part JJJ of chap-
 ter 59 of the laws of 2019, are amended to read as follows:
   (c) The principal's criminal conviction record if  any  PROVIDED  THAT
 THE  COURT    MUST ALSO CONSIDER AND TAKE INTO ACCOUNT THE TIME THAT HAS
 ELAPSED SINCE THE OCCURRENCE OF SUCH CRIME OR CRIMES AND THE AGE OF  THE
 PRINCIPAL AT THE TIME OF THE OCCURRENCE OF SUCH CRIME OR CRIMES;
   (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 PROVIDED  THAT

 A. 5984                             3

 THE   COURT   MUST ALSO CONSIDER AND TAKE INTO ACCOUNT THE TIME THAT HAS
 ELAPSED SINCE THE OCCURRENCE OF SUCH DELINQUENCY OR YOUTHFUL    OFFENDER
 CONDUCT  AND THE AGE OF THE PRINCIPAL AT THE TIME OF SUCH DELINQUENCY OR
 YOUTHFUL OFFENDER CONDUCT;
   (e) The principal's previous record with respect to INTENTIONAL flight
 to avoid criminal prosecution;
   §  3.  Subparagraph  (i)  of paragraph (b) 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:
   (i)  designed  and  implemented  in a way that ensures the results are
 free from discrimination AND ANY  DISPARATE  IMPACTS  ON  DETENTION  AND
 OTHER OUTCOMES on the basis of race, CREED, COLOR, national origin, sex,
 SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR  EXPRESSION, MILITARY STATUS,
 DISABILITY, or an other protected class, REGARDING THE USE THEREOF; and
   § 4. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.