Commencing at the stroke of midnight on January 1, 2020, New York Bail Reform, as it is commonly referred, takes discretion and authority from both judges and prosecutors and shifts power to far more strict and specifically outlined statutory guidelines. Codified throughout New York Criminal Procedure Law 500, a judge’s ability to set bail in the tens or hundreds of thousands of dollars at the request of the District Attorney is limited and replaced with legislated standards. In fact, the language of CPL 510.10(1) is quite clear. “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 risk of flight to avoid prosecution. 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.”
Although this blog entry is no substitute for understanding bail or the advocacy of your criminal lawyer at your arraignment, the following provides some basic principles and provisions that now govern the criminal justice system.
Qualified vs Non-Qualified Offense
Before a judge can set monetary bail and potentially hold you in custody, you must be charged with a Qualifying Offense, pursuant to CPL 510.10(4), as opposed to a Non-Qualifying Offense. Although the full list of Qualifying Offenses is available through the respective link, the most common of these crimes will likely be those defined as Violent Felonies in violation of CPL 70.02 other than two specific subsections of Second Degree Robbery as it relates to being assisted by another person and Second Degree Burglary where the property unlawfully entered is a legal dwelling.
Assuming you are not charged at your arraignment with one of the above type crimes, then CPL 510.10(3) mandates that the judge ROR you pending your trial. That said, the judge can overcome this rule by finding in writing and on the record that releasing you on your own recognizance would not reasonably assure your return to court. Even if the judge satisfies this requirement, he or she must nonetheless set your conditions in the least restrictive manner.
Types of Securing Orders and Monetary Bail
While cash bail is still allowable, CPL 520.10(2)(b) requires that courts permit at least three different types of securing orders of which one or more of those must be either a partially secured security bond or an unsecured one. As such, a judge could not require that you solely post cash bail.
Bench Warrants and Failing to Appear in Court
Another provision of New York Bail Reform is found in the laws allowing for the issuance of bench warrants. According to CPL 530.60(2)(b), not only must you willfully and persistently fail to appear on your court dates before your bail status is modified to a more restrictive condition, and a judge must find clear and convincing evidence at a hearing that you in fact acted as such, but baring an exception, before a bench warrant is even ordered you or your attorney must be put on notice and the court must allow you forty-eight (48) hours to return. CPL 510.50(2).
Revoking or Modifying Bail Conditions
Merely because judges must now follow specific statutory provisions does not mean they no longer have the ability revoke bail or other securing orders. While the caveat is that whatever they implement must still be the least restrictive to ensure your return to court even if more severe than before, a judge, after a mandatory bail modification hearing, does have recourse for your non-compliance.
If, for example, you are not in jail as your case winds through the system and you are arrested for a Violent Felony Offense pursuant to CPL 70.02, a judge can order these new conditions as long as he or she finds reasonable cause to believe you committed this new offense. CPL 530.60(2)(a). Similarly, if you are charged with any crime and while “out,” arrested for violating an Order of Protection, charged with a non-violent felony or you willfully and persistently don’t show up at your scheduled court appearances, a judge can alter your conditions on a finding of clear and convincing evidence you committed one of these infractions. CPL 530.60(2)(b).
A mere “quick hit” analysis of some of the major components of the new bail laws in New York that go into effect on January 1, 2020, do not misinterpret reforms in securing orders as an easing up of prosecutorial discretion to pursue criminal charges, hold defendants accountable, and seek incarceration for an accused at the end of a case. Take the time to educate yourself about the crimes you face, the applicable laws and the practical realities of an arrest or indictment. Should you find yourself sucked into the churning turbines of the criminal justice system, a failure to properly protect yourself will have grave and permanent consequences.
Crotty Saland PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents clients throughout the New York City and Hudson Valley region as well as throughout other counties and municipalities in the state.