Bill Text: NY A05169 | 2023-2024 | General Assembly | Introduced

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Bill Title: Restores judicial discretion relating to bail reform; provides that when the defendant is charged with a felony, the court shall request of the applicable county pre-trial services agency a risk and needs assessment be conducted on the eligible defendant for the purpose of determining whether such defendant should be released on the defendant's own recognizance, released under non-monetary conditions or, where authorized, bail or commit the defendant to the custody of the sheriff; defines risks and needs assessment; makes related provisions.

Spectrum: Partisan Bill (Republican 4-0)

Status: (Introduced - Dead) 2024-01-03 - referred to codes [A05169 Detail]

Download: New_York-2023-A05169-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5169

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      March 3, 2023
                                       ___________

        Introduced  by  M.  of  A.  TANNOUSIS  --  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:

     1    Section 1. Section 500.10 of the criminal procedure law is amended  by
     2  adding a new subdivision 23 to read as follows:
     3    23.  "Risk  and  needs  assessment"  means a risk and needs assessment
     4  instrument, approved by the chief administrative judge  of  the  unified
     5  court  system.  Such  approved assessment instrument shall be objective,
     6  standardized and developed based on analysis of empirical data and  risk
     7  factors  relevant to the principal's danger to the community and risk of
     8  failure of a principal to appear. Such  approved  assessment  instrument
     9  shall  not  be  discriminatory  based on race, national origin, sex, any
    10  other protected class or socioeconomic status.
    11    § 2. Section 510.10 of the  criminal  procedure  law,  as  amended  by
    12  section  2  of part JJJ of chapter 59 of the laws of 2019, subdivision 1
    13  as amended by section 1 of subpart C of part UU of  chapter  56  of  the
    14  laws  of 2022, subdivision 4 as amended by section 2 of part UU of chap-
    15  ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision  4  as
    16  amended  and  paragraph  (u)  of  subdivision 4 as added by section 2 of
    17  subpart B of part UU of chapter 56 of the laws of 2022,  is  amended  to
    18  read as follows:
    19  § 510.10 Securing order; when required; alternatives available; standard
    20             to be applied.
    21    1.  When  a  principal,  whose  future  court attendance at a criminal
    22  action or proceeding is or may be required, comes under the control of a
    23  court, such court shall, in accordance with this title,  by  a  securing
    24  order [release the principal] request of the applicable county pre-trial
    25  services  agency  that  a  risk and needs assessment be conducted on the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00533-01-3
        A. 5169                             2

     1  eligible principal and such court shall take into account the  risk  and
     2  needs  assessment,  but such assessment shall not be the sole determina-
     3  tive factor, for the  purpose  of  determining  whether  such  principal
     4  should  be  released  on  the principal's own recognizance, [release the
     5  principal] released under non-monetary conditions, or, where authorized,
     6  fix bail or commit the principal to the custody of the sheriff.  In  all
     7  such  cases,  except where another type of securing order is shown to be
     8  required by law, the court shall release the principal pending trial  on
     9  the  principal's own recognizance, unless [it is] the risk needs assess-
    10  ment has demonstrated and the court [makes  an  individualized  determi-
    11  nation]  determines  that  the principal is a danger to the community or
    12  poses a risk of flight to avoid prosecution. If such a finding  specific
    13  to  risk  of  flight to avoid prosecution is made, the court must select
    14  the least restrictive alternative and condition or conditions that  will
    15  reasonably  assure  the  principal's  return to court.   The court shall
    16  explain its choice of release, release with conditions, bail  or  remand
    17  on the record or in writing. In making its determination, the court must
    18  consider  and  take into account available information about the princi-
    19  pal, including:
    20    (a) The principal's activities and history;
    21    (b) If the principal is a defendant, the charges facing the principal;
    22    (c) The principal's criminal conviction record if any;
    23    (d) The principal's record of  previous  adjudication  as  a  juvenile
    24  delinquent,  as  retained  pursuant to section 354.1 of the family court
    25  act, or, of pending cases where fingerprints are  retained  pursuant  to
    26  section 306.1 of such act, or a youthful offender, if any;
    27    (e)  The  principal's  previous record with respect to flight to avoid
    28  criminal prosecution;
    29    (f) If monetary bail is authorized, according to the restrictions  set
    30  forth in this title, the principal's individual financial circumstances,
    31  and,  in cases where bail is authorized, the principal's ability to post
    32  bail without posing undue hardship, as well as his  or  her  ability  to
    33  obtain a secured, unsecured, or partially secured bond;
    34    (g) Any violation by the principal of an order of protection issued by
    35  any court;
    36    (h) The principal's history of use or possession of a firearm;
    37    (i)  Whether  the  charge is alleged to have caused serious harm to an
    38  individual or group of individuals; and
    39    (j) If the principal is a defendant, in the case of an application for
    40  a securing order pending appeal, the merit  or  lack  of  merit  of  the
    41  appeal.
    42    2.  A  principal  is  entitled to representation by counsel under this
    43  chapter in preparing an application for release, when a  securing  order
    44  is  being  considered  and  when  a securing order is being reviewed for
    45  modification, revocation or termination. If the principal is financially
    46  unable to obtain counsel, counsel shall be assigned to the principal.
    47    3. [In cases other than as  described  in  subdivision  four  of  this
    48  section the court shall release the principal pending trial on the prin-
    49  cipal's  own  recognizance,  unless  the court finds on the record or in
    50  writing that release  on  the  principal's  own  recognizance  will  not
    51  reasonably  assure  the  principal's return to court. In such instances,
    52  the court shall release the  principal  under  non-monetary  conditions,
    53  selecting  the  least  restrictive  alternative and conditions that will
    54  reasonably assure the principal's  return  to  court.  The  court  shall
    55  explain  its  choice  of  alternative and conditions on the record or in
    56  writing.
        A. 5169                             3

     1    4. Where the principal stands charged with a qualifying  offense,  the
     2  court, unless otherwise prohibited by law, may in its discretion release
     3  the principal pending trial on the principal's own recognizance or under
     4  non-monetary  conditions,  fix  bail, or, where the defendant is charged
     5  with  a  qualifying  offense which is a felony, the court may commit the
     6  principal to the custody of the sheriff. A principal stands charged with
     7  a qualifying offense for the purposes of this subdivision when he or she
     8  stands charged with:
     9    (a) a felony enumerated in section 70.02 of the penal law, other  than
    10  robbery  in  the  second degree as defined in subdivision one of section
    11  160.10 of the penal law, provided, however, that burglary in the  second
    12  degree  as defined in subdivision two of section 140.25 of the penal law
    13  shall be a qualifying offense only where the defendant is  charged  with
    14  entering the living area of the dwelling;
    15    (b) a crime involving witness intimidation under section 215.15 of the
    16  penal law;
    17    (c)  a  crime involving witness tampering under section 215.11, 215.12
    18  or 215.13 of the penal law;
    19    (d) a class A felony defined in the penal law, provided that for class
    20  A felonies under article two hundred twenty of the penal law, only class
    21  A-I felonies shall be a qualifying offense;
    22    (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
    23  the penal law, or a felony sex offense defined in section 70.80  of  the
    24  penal  law,  or  a  crime involving incest as defined in section 255.25,
    25  255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one
    26  hundred thirty of such law;
    27    (f)  conspiracy  in  the second degree as defined in section 105.15 of
    28  the penal law, where the underlying allegation of such  charge  is  that
    29  the  defendant  conspired  to commit a class A felony defined in article
    30  one hundred twenty-five of the penal law;
    31    (g) money laundering in support of terrorism in the  first  degree  as
    32  defined  in section 470.24 of the penal law; money laundering in support
    33  of terrorism in the second degree as defined in section  470.23  of  the
    34  penal  law; money laundering in support of terrorism in the third degree
    35  as defined in section 470.22 of  the  penal  law;  money  laundering  in
    36  support  of  terrorism in the fourth degree as defined in section 470.21
    37  of the penal law; or a felony crime of terrorism as defined  in  article
    38  four  hundred  ninety  of the penal law, other than the crime defined in
    39  section 490.20 of such law;
    40    (h) criminal contempt in the second degree as defined  in  subdivision
    41  three of section 215.50 of the penal law, criminal contempt in the first
    42  degree  as  defined  in subdivision (b), (c) or (d) of section 215.51 of
    43  the penal law or aggravated criminal  contempt  as  defined  in  section
    44  215.52 of the penal law, and the underlying allegation of such charge of
    45  criminal  contempt  in the second degree, criminal contempt in the first
    46  degree or aggravated criminal contempt is that the defendant violated  a
    47  duly served order of protection where the protected party is a member of
    48  the  defendant's  same family or household as defined in subdivision one
    49  of section 530.11 of this title;
    50    (i) facilitating a sexual performance by a  child  with  a  controlled
    51  substance  or alcohol as defined in section 263.30 of the penal law, use
    52  of a child in a sexual performance as defined in section 263.05  of  the
    53  penal  law  or  luring  a child as defined in subdivision one of section
    54  120.70 of the penal law, promoting an obscene sexual  performance  by  a
    55  child as defined in section 263.10 of the penal law or promoting a sexu-
    56  al performance by a child as defined in section 263.15 of the penal law;
        A. 5169                             4

     1    (j)  any  crime  that  is  alleged to have caused the death of another
     2  person;
     3    (k)  criminal obstruction of breathing or blood circulation as defined
     4  in section 121.11 of the penal law, strangulation in the  second  degree
     5  as  defined  in section 121.12 of the penal law or unlawful imprisonment
     6  in the first degree as defined in section 135.10 of the penal  law,  and
     7  is alleged to have committed the offense against a member of the defend-
     8  ant's  same family or household as defined in subdivision one of section
     9  530.11 of this title;
    10    (l) aggravated vehicular assault as defined in section 120.04-a of the
    11  penal law or vehicular assault in the first degree as defined in section
    12  120.04 of the penal law;
    13    (m) assault in the third degree as defined in section  120.00  of  the
    14  penal  law  or arson in the third degree as defined in section 150.10 of
    15  the penal law, when such crime is charged as a hate crime as defined  in
    16  section 485.05 of the penal law;
    17    (n)  aggravated  assault  upon  a person less than eleven years old as
    18  defined in section 120.12 of the penal law or criminal possession  of  a
    19  weapon  on  school  grounds  as defined in section 265.01-a of the penal
    20  law;
    21    (o) grand larceny in the first degree as defined in section 155.42  of
    22  the penal law, enterprise corruption as defined in section 460.20 of the
    23  penal law, or money laundering in the first degree as defined in section
    24  470.20 of the penal law;
    25    (p)  failure  to  register  as  a sex offender pursuant to section one
    26  hundred sixty-eight-t of the correction law or endangering  the  welfare
    27  of  a child as defined in subdivision one of section 260.10 of the penal
    28  law, where the defendant is  required  to  maintain  registration  under
    29  article  six-C of the correction law and designated a level three offen-
    30  der pursuant to subdivision six of section one hundred sixty-eight-l  of
    31  the correction law;
    32    (q)  a  crime  involving  bail jumping under section 215.55, 215.56 or
    33  215.57 of the penal law, or a  crime  involving  escaping  from  custody
    34  under section 205.05, 205.10 or 205.15 of the penal law;
    35    (r)  any  felony  offense  committed  by the principal while serving a
    36  sentence of probation or while released to post release supervision;
    37    (s) a felony, where the defendant qualifies  for  sentencing  on  such
    38  charge  as a persistent felony offender pursuant to section 70.10 of the
    39  penal law;
    40    (t) any felony or class A misdemeanor involving harm to  an  identifi-
    41  able  person  or  property,  or  any  charge of criminal possession of a
    42  firearm as defined in section 265.01-b of  the  penal  law,  where  such
    43  charge  arose from conduct occurring while the defendant was released on
    44  his or her own recognizance, released under conditions, or had yet to be
    45  arraigned after the issuance of a desk appearance ticket for a  separate
    46  felony  or  class A misdemeanor involving harm to an identifiable person
    47  or property, or any charge  of  criminal  possession  of  a  firearm  as
    48  defined  in  section  265.01-b of the penal law, provided, however, that
    49  the prosecutor must show reasonable cause to believe that the  defendant
    50  committed  the  instant crime and any underlying crime. For the purposes
    51  of this subparagraph, any of the underlying crimes need not be a  quali-
    52  fying  offense as defined in this subdivision.  For the purposes of this
    53  paragraph, "harm to an identifiable person or  property"  shall  include
    54  but  not  be  limited to theft of or damage to property.  However, based
    55  upon a review of the facts alleged in the accusatory instrument, if  the
    56  court determines that such theft is negligible and does not appear to be
        A. 5169                             5

     1  in  furtherance  of  other  criminal  activity,  the  principal shall be
     2  released on his or her own recognizance or under  appropriate  non-mone-
     3  tary conditions; or
     4    (u)  criminal possession of a weapon in the third degree as defined in
     5  subdivision three of section 265.02 of the penal law or criminal sale of
     6  a firearm to a minor as defined in section 265.16 of the penal law.
     7    5. Notwithstanding the provisions of subdivisions three  and  four  of
     8  this  section, with] With respect to any charge for which bail or remand
     9  is not ordered, and for which the court would not [or could not]  other-
    10  wise  require bail or remand, a defendant may, at any time, request that
    11  the court set bail in a nominal amount requested by the defendant in the
    12  form specified in paragraph (a) of subdivision one of section 520.10  of
    13  this title; if the court is satisfied that the request is voluntary, the
    14  court shall set such bail in such amount.
    15    [6.]  4.  When  a securing order is revoked or otherwise terminated in
    16  the course of an uncompleted action or proceeding  but  the  principal's
    17  future court attendance still is or may be required and the principal is
    18  still under the control of a court, a new securing order must be issued.
    19  When  the  court  revokes or otherwise terminates a securing order which
    20  committed the principal to the custody of the sheriff, the  court  shall
    21  give  written  notification  to the sheriff of such revocation or termi-
    22  nation of the securing order.
    23    § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
    24  amended by section 3 of part JJJ of chapter 59 of the laws of  2019,  is
    25  amended to read as follows:
    26    1.  Upon  any  occasion  when a court has issued a securing order with
    27  respect to a principal and the principal is confined in the  custody  of
    28  the  sheriff  as  a  result of the securing order or a previously issued
    29  securing order, the principal may make an application for  recognizance,
    30  release  under non-monetary conditions or bail. Any such decision by the
    31  court for a change in a securing order with respect to a principal shall
    32  take into account the risk and needs assessment conducted by the  appli-
    33  cable county pre-trial services agency, but such assessment shall not be
    34  the sole determinative factor.
    35    § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
    36  amended  by  section 2 of subpart C of part UU of chapter 56 of the laws
    37  of 2022, is amended to read as follows:
    38    1. With respect to any principal,  the  court  in  all  cases,  unless
    39  otherwise  provided  by  law, must impose the least restrictive kind and
    40  degree of control or restriction that is necessary to secure the princi-
    41  pal's return to court when required unless such principal poses a danger
    42  to the community. In determining that matter, the court [must], in addi-
    43  tion to taking into account the risk and needs assessment  conducted  by
    44  the  applicable county pre-trial services agency, on the basis of avail-
    45  able information, consider and take into account information  about  the
    46  principal  that  is relevant to the principal's return to court, includ-
    47  ing:
    48    (a) The principal's activities and history;
    49    (b) If the principal is a defendant, the charges facing the principal;
    50    (c) The principal's criminal conviction record if any;
    51    (d) The principal's record of  previous  adjudication  as  a  juvenile
    52  delinquent,  as  retained  pursuant to section 354.2 of the family court
    53  act, or, of pending cases where fingerprints are  retained  pursuant  to
    54  section 306.1 of such act, or a youthful offender, if any;
    55    (e)  The  principal's  previous record with respect to flight to avoid
    56  criminal prosecution;
        A. 5169                             6

     1    (f) If monetary bail is authorized, according to the restrictions  set
     2  forth in this title, the principal's individual financial circumstances,
     3  and,  in cases where bail is authorized, the principal's ability to post
     4  bail without posing undue hardship, as well as his  or  her  ability  to
     5  obtain a secured, unsecured, or partially secured bond;
     6    (g) any violation by the principal of an order of protection issued by
     7  any court;
     8    (h) the principal's history of use or possession of a firearm;
     9    (i)  whether  the  charge is alleged to have caused serious harm to an
    10  individual or group of individuals; and
    11    (j) If the principal is a defendant, in the case of an application for
    12  a securing order pending appeal, the merit  or  lack  of  merit  of  the
    13  appeal.
    14    §  5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal
    15  procedure law, as added by section 8 of part JJJ of chapter  59  of  the
    16  laws of 2019, is amended to read as follows:
    17    [(a) Any questionnaire, instrument or tool] The risk and needs assess-
    18  ment  instrument  used with a principal in the process of considering or
    19  determining the principal's possible release  on  recognizance,  release
    20  under  non-monetary  conditions  or on bail, or used with a principal in
    21  the process of considering or determining a condition or  conditions  of
    22  release  or  monitoring by a pretrial services agency, shall be promptly
    23  made available to the principal and the principal's counsel upon  [writ-
    24  ten]  request.  [Any  such blank form questionnaire, instrument or tool]
    25  Any such blank risk and needs assessment instrument  regularly  used  in
    26  the county for such purpose or a related purpose shall be made available
    27  to any person promptly upon written request.
    28    §  6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal
    29  procedure law is REPEALED.
    30    § 7. Paragraph (a) of subdivision 1 of section 530.20 of the  criminal
    31  procedure  law, as amended by section 3 of subpart C of part UU of chap-
    32  ter 56 of the laws of 2022, is amended to read as follows:
    33    (a) [In cases other than as described in paragraph (b) of this  subdi-
    34  vision]  When  the  principal  is charged with an offense or offenses of
    35  less than felony grade only, the court shall [release  the]  request  of
    36  the applicable county pre-trial services agency a risk and needs assess-
    37  ment  be  conducted  on  the eligible principal and the court shall take
    38  into account the risk and needs assessment, but  such  assessment  shall
    39  not  be  the  sole  determinative factor, for the purpose of determining
    40  whether such principal should be released pending trial on  the  princi-
    41  pal's  own  recognizance,  [unless  the  court finds on the record or in
    42  writing that release  on  the  principal's  own  recognizance  will  not
    43  reasonably  assure  the  principal's return to court. In such instances,
    44  the court shall release the  principal  under  non-monetary  conditions,
    45  selecting  the  least  restrictive  alternative and conditions that will
    46  reasonably assure the principal's return to court] released  under  non-
    47  monetary conditions, or where authorized, fix bail or commit the princi-
    48  pal to the custody of the sheriff. The court shall explain its choice of
    49  [alternative  and]  release,  release with conditions, bail or remand on
    50  the record or in writing. In making its determination,  the  court  must
    51  consider  and  take into account available information about the princi-
    52  pal, including:
    53    (i) the principal's activities and history;
    54    (ii) if the principal is a defendant, the charges facing  the  princi-
    55  pal;
    56    (iii) the principal's criminal conviction record if any;
        A. 5169                             7

     1    (iv)  the  principal's  record  of previous adjudication as a juvenile
     2  delinquent, as retained pursuant to section 354.1 of  the  family  court
     3  act,  or  of  pending  cases where fingerprints are retained pursuant to
     4  section 306.1 of such act, or a youthful offender, if any;
     5    (v)  the  principal's  previous record with respect to flight to avoid
     6  criminal prosecution;
     7    (vi) if monetary bail is authorized, according to the restrictions set
     8  forth in this title, the principal's individual financial circumstances,
     9  and, in cases where bail is authorized, the principal's ability to  post
    10  bail  without  posing  undue  hardship, as well as his or her ability to
    11  obtain a secured, unsecured, or partially secured bond;
    12    (vii) any violation by the principal of an order of protection  issued
    13  by any court;
    14    (viii) the principal's history and use or possession of a firearm;
    15    (ix)  whether  the charge is alleged to have caused serious harm to an
    16  individual or group of individuals; and
    17    (x) if the principal is a defendant, in the case of an application for
    18  a securing order pending appeal, the merit  or  lack  of  merit  of  the
    19  appeal.
    20    §  8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal
    21  procedure law is REPEALED.
    22    § 9. Paragraph (d) of subdivision 1 of section 530.20 of the  criminal
    23  procedure  law,  as added by section 16 of part JJJ of chapter 59 of the
    24  laws of 2019, is  relettered  paragraph  (b)  and  amended  to  read  as
    25  follows:
    26    (b)  [Notwithstanding the provisions of paragraphs (a) and (b) of this
    27  subdivision, with] With respect to any charge for which bail  or  remand
    28  is  not ordered, and for which the court would not [or could not] other-
    29  wise require bail or remand, a defendant may, at any time, request  that
    30  the court set bail in a nominal amount requested by the defendant in the
    31  form  specified in paragraph (a) of subdivision one of section 520.10 of
    32  this title; if the court is satisfied that the request is voluntary, the
    33  court shall set such bail in such amount.
    34    § 10. The opening paragraph of subdivision 2 of section 530.20 of  the
    35  criminal  procedure law, as amended by section 16 of part JJJ of chapter
    36  59 of the laws of 2019, is amended to read as follows:
    37    When the defendant is charged, by felony complaint, with a felony, the
    38  court [may, in its discretion, order] shall, request of  the  applicable
    39  county  pre-trial  services  agency  a  risk  and  needs  assessment  be
    40  conducted on the eligible  defendant  and  the  court  shall  take  into
    41  account  the risk and needs assessment, but such assessment shall not be
    42  the sole determinative factor, for the purpose  of  determining  whether
    43  such  defendant  should be released on the defendant's own recognizance,
    44  [release] released under non-monetary conditions, or, where  authorized,
    45  bail  or  commit  the  defendant to the custody of the sheriff except as
    46  otherwise provided in [subdivision one of this section or] this subdivi-
    47  sion:
    48    § 11. Section 530.40 of the criminal  procedure  law,  as  amended  by
    49  section  18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
    50  as amended by section 3 of subpart B of part UU of  chapter  56  of  the
    51  laws  of  2022,  and subdivision 4 as amended by section 4 of part UU of
    52  chapter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision  4
    53  as  amended  and paragraph (u) of subdivision 4 as added by section 4 of
    54  subpart B of part UU of chapter 56 of the laws of 2022,  is  amended  to
    55  read as follows:
        A. 5169                             8

     1  § 530.40 Order of recognizance, release under non-monetary conditions or
     2             bail; by superior court when action is pending therein.
     3    When  a  criminal  action  is pending in a superior court, such court,
     4  upon application of a defendant, must or may order recognizance or  bail
     5  as follows:
     6    1.  When  the defendant is charged with an offense or offenses of less
     7  than felony grade only, the court must, request of the applicable county
     8  pre-trial services agency a risk and needs assessment  be  conducted  on
     9  the  eligible  defendant  and the court shall take into account the risk
    10  and needs assessment, but such assessment shall not be the sole determi-
    11  native factor, for the purpose of determining  whether  such  defendant,
    12  unless  otherwise  provided  by  law,  should be released on an order of
    13  recognizance or  bail  or  release  under  non-monetary  conditions  [in
    14  accordance  with this section] or commit the defendant to the custody of
    15  the sheriff.
    16    2. When the defendant is charged with a felony, the court [may, unless
    17  otherwise provided by law in its discretion, order]   shall  request  of
    18  the applicable county pre-trial services agency a risk and needs assess-
    19  ment  be  conducted  on  the eligible defendant and the court shall take
    20  into account the risk and needs assessment, but  such  assessment  shall
    21  not  be  the  sole  determinative factor, for the purpose of determining
    22  whether such defendant should be released on the defendant's own  recog-
    23  nizance,  [release]  released  under  non-monetary  conditions or, where
    24  authorized, bail or commit the defendant to the custody of the  sheriff.
    25  In  any  such case in which an indictment (a) has resulted from an order
    26  of a local criminal court holding the defendant for the  action  of  the
    27  grand  jury, or (b) was filed at a time when a felony complaint charging
    28  the same conduct was pending in a local criminal  court,  and  in  which
    29  such  local criminal court or a superior court judge has issued an order
    30  of recognizance, release under non-monetary conditions or, where author-
    31  ized, bail which is still effective, the superior court's order  may  be
    32  in  the form of a direction continuing the effectiveness of the previous
    33  order.
    34    3. [In cases other than as  described  in  subdivision  four  of  this
    35  section the court shall release the principal pending trial on the prin-
    36  cipal's  own  recognizance,  unless  the court finds on the record or in
    37  writing that release  on  the  principal's  own  recognizance  will  not
    38  reasonably  assure  the  principal's return to court. In such instances,
    39  the court shall release the  principal  under  non-monetary  conditions,
    40  selecting  the  least  restrictive  alternative and conditions that will
    41  reasonably assure the principal's  return  to  court.  The  court  shall
    42  explain  its  choice  of  alternative and conditions on the record or in
    43  writing. In making its determination, the court must consider  and  take
    44  into account available information about the principal, including:
    45    (a) the principal's activities and history;
    46    (b) if the principal is a defendant, the charges facing the principal;
    47    (c) the principal's criminal conviction record if any;
    48    (d)  the  principal's  record  of  previous adjudication as a juvenile
    49  delinquent, as retained pursuant to section 354.1 of  the  family  court
    50  act,  or  of  pending  cases where fingerprints are retained pursuant to
    51  section 306.1 of such act, or a youthful offender, if any;
    52    (e) the principal's previous record with respect to  flight  to  avoid
    53  criminal prosecution;
    54    (f)  if monetary bail is authorized, according to the restrictions set
    55  forth in this title, the principal's individual financial circumstances,
    56  and, in cases where bail is authorized, the principal's ability to  post
        A. 5169                             9

     1  bail  without  posing  undue  hardship, as well as his or her ability to
     2  obtain a secured, unsecured, or partially secured bond;
     3    (g) any violation by the principal of an order of protection issued by
     4  any court;
     5    (h) the principal's history and use or possession of a firearm;
     6    (i)  whether  the  charge is alleged to have caused serious harm to an
     7  individual or group of individuals; and
     8    (j) if the principal is a defendant, in the case of an application for
     9  a securing order pending appeal, the merit  or  lack  of  merit  of  the
    10  appeal.
    11    4.  Where  the principal stands charged with a qualifying offense, the
    12  court, unless otherwise prohibited by law, may in its discretion release
    13  the principal pending trial on the principal's own recognizance or under
    14  non-monetary conditions, fix bail, or, where the  defendant  is  charged
    15  with  a  qualifying  offense which is a felony, the court may commit the
    16  principal to the custody of the sheriff. The  court  shall  explain  its
    17  choice of release, release with conditions, bail or remand on the record
    18  or  in writing. A principal stands charged with a qualifying offense for
    19  the purposes of this subdivision when he or she stands charged with:
    20    (a) a felony enumerated in section 70.02 of the penal law, other  than
    21  robbery  in  the  second degree as defined in subdivision one of section
    22  160.10 of the penal law, provided, however, that burglary in the  second
    23  degree  as defined in subdivision two of section 140.25 of the penal law
    24  shall be a qualifying offense only where the defendant is  charged  with
    25  entering the living area of the dwelling;
    26    (b) a crime involving witness intimidation under section 215.15 of the
    27  penal law;
    28    (c)  a  crime involving witness tampering under section 215.11, 215.12
    29  or 215.13 of the penal law;
    30    (d) a class A felony defined in the penal law, provided that for class
    31  A felonies under article two hundred twenty of such law, only class  A-I
    32  felonies shall be a qualifying offense;
    33    (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
    34  the  penal  law, or a felony sex offense defined in section 70.80 of the
    35  penal law or a crime involving incest  as  defined  in  section  255.25,
    36  255.26  or  255.27  of such law, or a misdemeanor defined in article one
    37  hundred thirty of such law;
    38    (f) conspiracy in the second degree as defined in  section  105.15  of
    39  the  penal  law,  where the underlying allegation of such charge is that
    40  the defendant conspired to commit a class A felony  defined  in  article
    41  one hundred twenty-five of the penal law;
    42    (g)  money  laundering  in support of terrorism in the first degree as
    43  defined in section 470.24 of the penal law; money laundering in  support
    44  of  terrorism  in  the second degree as defined in section 470.23 of the
    45  penal law; money laundering in support of terrorism in the third  degree
    46  as  defined  in  section  470.22  of  the penal law; money laundering in
    47  support of terrorism in the fourth degree as defined in  section  470.21
    48  of  the  penal law; or a felony crime of terrorism as defined in article
    49  four hundred ninety of the penal law, other than the  crime  defined  in
    50  section 490.20 of such law;
    51    (h)  criminal  contempt in the second degree as defined in subdivision
    52  three of section 215.50 of the penal law, criminal contempt in the first
    53  degree as defined in subdivision (b), (c) or (d) of  section  215.51  of
    54  the  penal  law  or  aggravated  criminal contempt as defined in section
    55  215.52 of the penal law, and the underlying allegation of such charge of
    56  criminal contempt in the second degree, criminal contempt in  the  first
        A. 5169                            10

     1  degree  or aggravated criminal contempt is that the defendant violated a
     2  duly served order of protection where the protected party is a member of
     3  the defendant's same family or household as defined in  subdivision  one
     4  of section 530.11 of this article;
     5    (i)  facilitating  a  sexual  performance by a child with a controlled
     6  substance or alcohol as defined in section 263.30 of the penal law,  use
     7  of  a  child in a sexual performance as defined in section 263.05 of the
     8  penal law or luring a child as defined in  subdivision  one  of  section
     9  120.70  of  the  penal law, promoting an obscene sexual performance by a
    10  child as defined in section 263.10 of the penal law or promoting a sexu-
    11  al performance by a child as defined in section 263.15 of the penal law;
    12    (j) any crime that is alleged to have  caused  the  death  of  another
    13  person;
    14    (k)  criminal obstruction of breathing or blood circulation as defined
    15  in section 121.11 of the penal law, strangulation in the  second  degree
    16  as  defined  in section 121.12 of the penal law or unlawful imprisonment
    17  in the first degree as defined in section 135.10 of the penal  law,  and
    18  is alleged to have committed the offense against a member of the defend-
    19  ant's  same family or household as defined in subdivision one of section
    20  530.11 of this article;
    21    (l) aggravated vehicular assault as defined in section 120.04-a of the
    22  penal law or vehicular assault in the first degree as defined in section
    23  120.04 of the penal law;
    24    (m) assault in the third degree as defined in section  120.00  of  the
    25  penal  law  or arson in the third degree as defined in section 150.10 of
    26  the penal law, when such crime is charged as a hate crime as defined  in
    27  section 485.05 of the penal law;
    28    (n)  aggravated  assault  upon  a person less than eleven years old as
    29  defined in section 120.12 of the penal law or criminal possession  of  a
    30  weapon  on  school  grounds  as defined in section 265.01-a of the penal
    31  law;
    32    (o) grand larceny in the first degree as defined in section 155.42  of
    33  the penal law, enterprise corruption as defined in section 460.20 of the
    34  penal law, or money laundering in the first degree as defined in section
    35  470.20 of the penal law;
    36    (p)  failure  to  register  as  a sex offender pursuant to section one
    37  hundred sixty-eight-t of the correction law or endangering  the  welfare
    38  of  a child as defined in subdivision one of section 260.10 of the penal
    39  law, where the defendant is  required  to  maintain  registration  under
    40  article  six-C of the correction law and designated a level three offen-
    41  der pursuant to subdivision six of section one hundred sixty-eight-l  of
    42  the correction law;
    43    (q)  a  crime  involving  bail jumping under section 215.55, 215.56 or
    44  215.57 of the penal law, or a  crime  involving  escaping  from  custody
    45  under section 205.05, 205.10 or 205.15 of the penal law;
    46    (r)  any  felony  offense  committed  by the principal while serving a
    47  sentence of probation or while released to post release supervision;
    48    (s) a felony, where the defendant qualifies  for  sentencing  on  such
    49  charge  as a persistent felony offender pursuant to section 70.10 of the
    50  penal law;
    51    (t) any felony or class A misdemeanor involving harm to  an  identifi-
    52  able  person  or  property,  or  any  charge of criminal possession of a
    53  firearm as defined in section 265.01-b of  the  penal  law,  where  such
    54  charge  arose from conduct occurring while the defendant was released on
    55  his or her own recognizance, released under conditions, or had yet to be
    56  arraigned after the issuance of a desk appearance ticket for a  separate
        A. 5169                            11

     1  felony  or  class A misdemeanor involving harm to an identifiable person
     2  or property, or any charge  of  criminal  possession  of  a  firearm  as
     3  defined  in  section  265.01-b of the penal law, provided, however, that
     4  the  prosecutor must show reasonable cause to believe that the defendant
     5  committed the instant crime and any underlying crime. For  the  purposes
     6  of  this subparagraph, any of the underlying crimes need not be a quali-
     7  fying offense as defined in this subdivision. For the purposes  of  this
     8  paragraph,  "harm  to  an identifiable person or property" shall include
     9  but not be limited to theft of or damage  to  property.  However,  based
    10  upon  a review of the facts alleged in the accusatory instrument, if the
    11  court determines that such theft is negligible and does not appear to be
    12  in furtherance of  other  criminal  activity,  the  principal  shall  be
    13  released  on  his or her own recognizance or under appropriate non-mone-
    14  tary conditions; or
    15    (u) criminal possession of a weapon in the third degree as defined  in
    16  subdivision three of section 265.02 of the penal law or criminal sale of
    17  a firearm to a minor as defined in section 265.16 of the penal law.
    18    5.  Notwithstanding  the  provisions of subdivisions three and four of
    19  this section, with] With respect to any charge for which bail or  remand
    20  is  not ordered, and for which the court would not [or could not] other-
    21  wise require bail or remand, a defendant may, at any time, request  that
    22  the court set bail in a nominal amount requested by the defendant in the
    23  form  specified in paragraph (a) of subdivision one of section 520.10 of
    24  this title; if the court is satisfied that the request is voluntary, the
    25  court shall set such bail in such amount.
    26    [6.] 4. Notwithstanding the provisions of  [subdivisions]  subdivision
    27  two[,  three  and  four] of this section, a superior court may not order
    28  recognizance, release under non-monetary conditions  or,  where  author-
    29  ized,  bail,  or  permit a defendant to remain at liberty pursuant to an
    30  existing order, after the defendant has been convicted of either: (a)  a
    31  class  A felony or (b) any class B or class C felony as defined in arti-
    32  cle one hundred thirty of the penal law committed  or  attempted  to  be
    33  committed  by  a  person eighteen years of age or older against a person
    34  less than eighteen years of age. In either case the court must commit or
    35  remand the defendant to the custody of the sheriff.
    36    [7.] 5. Notwithstanding the provisions of  [subdivisions]  subdivision
    37  two[,  three  and  four] of this section, a superior court may not order
    38  recognizance, release under non-monetary conditions  or,  where  author-
    39  ized,  bail when the defendant is charged with a felony unless and until
    40  the district attorney has had an opportunity to be heard in  the  matter
    41  and  such court and counsel for the defendant have been furnished with a
    42  report as described in subparagraph (ii) of paragraph (b) of subdivision
    43  two of section 530.20 of this article.
    44    § 12. This act shall take effect immediately.