BILL NUMBER: S5118
SPONSOR: BORRELLO
 
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to providing
judges more discretion regarding securing orders and limiting the
lengths of certain orders; and to repeal certain provisions of the crim-
inal procedure law, the judiciary law and the executive law relating
thereto
 
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this legislation is to restore judicial discretion in
setting appropriate bail for criminal defendants to ensure their timely
appearance for trial, taking into account the defendant's risk of flight
to avoid prosecution, the risk of failing to appear based on the defend-
ant's record of prior criminal convictions or prior failures to appear
for court, the danger the defendant poses to the safety of other persons
or the community. These criteria track the federal standards that have
been used successful in federal criminal proceedings across the nation.
In addition, this legislation would require judges to review the Status
of every defendant that is being held pending bail on a regular basis to
ensure that defendants are not incarcerated for an extended time period
simply because of an inability to post bail. These scheduled reviews
would occur every 4 weeks for Class A misdemeanors, every 6 weeks for
Class E felonies, every 8 weeks for Class D Felonies, every 10 weeks for
Class C felonies, and every 12 weeks for Class B Felonies.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 repeals section 150.10 of the Criminal Procedure Law.
Section 2 amends section 1.20(1) of the Criminal Procedure Law to
restore the language that existed prior to the adoption of chapter 450
of the laws of 2019.
Section 3 amends section 150.20(1) of the Criminal Procedure Law to
restore the language that existed prior to the adoption of part JJJ of
chapter 59 of the laws of 2019.
Section 4 amends section 150.30 of the Criminal Procedure Law regarding
the issuance of appearance tickets.
Section 5 amends section 150.40 of the Criminal Procedure Law to restore
the language that existed prior to the adoption of part UU of chapter 56
of the laws of 2020.
Section 6 amends section 150,50 of the Criminal Procedure Law to restore
the language that existed prior to the adoption of chapter 450 of the
laws of 2019.
Section 7 repeals section 150.80 of the Criminal Procedure Law.
Section 8 repeals sections 500.10(3-a), 500.10(3-b), 500.10(21), and
500.10(22) of the Criminal Procedure Law.
Section 9 amends section 500.10 subdivisions 5, 6, 7, and 9 to restore
the language that existed prior to the adoption of part JJJ of chapter
59 of the laws of 2019.
Section 10 amends section 510.10 of the Criminal Procedure Law to repeal
the changes made by part JJJ of chapter 59 of the laws of 2019 and part
UU of chapter 56 of the laws of 2020. provide that a court shall release
a criminal defendant on personal recognizance unless the court makes an
individualized determination that the defendant poses a risk of flight
to avoid prosecution, poses a risk of failing to appear in court based
on prior criminal convictions or prior failures to appear, or poses a
risk of endangering the safety of any other person or the community.
If the court determines that the criminal defendant poses a risk of
flight to avoid prosecution or poses a risk of failing to appear in
court based on prior criminal convictions or prior failures to appear,
but does not pose a risk of endangering the safety of any other person
or the community, then the court shall release the defendant subject to
the lowest reasonable bail and/or least restrictive further conditions
that will reasonable ensure the appearance of the defendant at trial
after considering the seriousness of the charges, the weight of the
evidence, the history and characteristics of the defendant, and the
nature and seriousness of the danger posed by the defendant's release.
If the court determines that no condition or combination of conditions
will reasonably assure the appearance of the defendant for trial and the
safety of other persons or the community, the court shall order
detention without bail.
If a defendant is arrested while out on bail, the court shall revoke the
bail for the first arrest and reconsider the amount of bail, the terms
and conditions for any release, or whether bail should be revoked.
All bail orders would be reviewed every 4 weeks for Class A misdemea-
nors, every 6 weeks for Class E felonies, every 8 weeks for Class D
Felonies, every 10 weeks for Class C felonies, and every 12 weeks for
Class B Felonies to ensure that the bail order should be changed in the
best interest of justice, taking into consideration the length of time
the defendant has been in jail awaiting trial, the likely sentence if
the defendant is convicted, the nature and circumstances of the alleged
offense, the weight of evidence, the history and characteristics of the
defendant, the danger the defendant poses to others, and whether there
are any other conditions that would justify a change in the bail.
Section 11 amends section 510.20 of the Criminal Procedure Law to
restore the language that existed prior to the adoption of part JJJ of
chapter 59 of the laws of 2019.
Section 12 makes conforming amendments to section 510.30 of the Criminal
Procedure Law to specify, inter alia, that a bail determination must
take into consideration the defendants' character, reputation, habits
and mental condition; employment and financial resources; family ties
and length of residence in the community; previous record of responding
to court appearances; history of use of a firearm; weight of the
evidence; the possible sentence that could be imposed.
Section 13 makes conforming changes to section 510.40 of the Criminal
Procedure Law.
Section 14 repeals section 510.43 and section 510.45 of the Criminal
Procedure Law.
Section 15 amends section 510.50 of the Criminal Procedure Law to delete
subsection 2 thereof.
Section 16 amends section 520.10 of the Criminal Procedure Law to make
conforming changes.
Section 17 amends section 530.10 of the Criminal Procedure Law to allow
either bail or lease on recognizance of a defendant.
Section 18 amends section 530.11(4) of the Criminal Procedure Law to
allow a judge to order bail for a defendant charged with committing a
family offense and may consider the bail previously set by the supreme
or family court.
Section 19 amends section 530.12(11) of the Criminal Procedure Law spec-
ify that a court may revoke an order of recognizance, restore a case to
the calendar when there was an adjournment in contemplation of dismiss-
al, revoke a conditional discharge, or revoke probation if a defendant
violates an order issued under section 530.12 of the Criminal. Procedure
Law.
Section 20 amends section 530.13 of the Criminal Procedure Law to
authorize a court to issue a temporary order of protection in connection
with a bail determination or as a condition for pre-trial release.
Section 21 amends section 530.13(8)(a) of the Criminal Procedure Law to
authorize a court to revoke an order of recognizance.
Section 22 repeals section 530.20 of the Criminal Procedure Law replaces
section 530.20 of the Criminal Procedure Law to specify the authority of
a local criminal court to order recognizance or bail after considering
the factors specified in section 10 of this Bill (see above).
Section 23 amends section 530.30(1) and section 530(2) of the Criminal.
Procedure Law to specify that a superior court judge may order release
on recognizance or bail where the local criminal lacks authority to make
such an order, has denied an application for release on recognizance,
has fixed bail in an excessive amount, or has imposed non-monetary
conditions that are unnecessarily restrictive.
Section 24 repeals section 530.40 of the Criminal Procedure Law and adds
a new section 530.40 of the Criminal Procedure Law to make conforming
changes consistent with Section 10 of this bill (see above).
Section 25 amends section 530.45(1) of the Criminal Procedure Law to
authorize a review of any bail determination by a higher court judge.
Section 26 repeals section 530.45(2-a) of the Criminal Procedure Law.
Section 27 amends section 530.50 of the Criminal Procedure Law to make
conforming changes.
Section 28 amends section 530.60 of the Criminal Procedure Law to speci-
fy the procedures for a review and possible revocation of an order
setting bail or release on recognizance during the course of a criminal
action or proceeding where the defendant is at liberty, including situ-
ations where the defendant has persistently and willfully failed to
appear for court proceedings, violated an order of protection, intim-
idated a witness or victim, or committed another felony.
Section 29 amends section 216.05(a) of the Criminal Procedure Law to
specify the procedures for a review and possible revocation of an order
setting bail or release on recognizance during the course of a criminal
action or proceeding where the defendant is at liberty pursuant .to a
judicial diversion program where the defendant has failed to appear
before the court or has violated a condition of their release, such as
refusing to participate in court-ordered drug abuse treatment.
Section 30 amends section 420.60 of the Criminal Procedure Law to
provide for the possible imposition of bail or revocation of release
where the defendant violates the terms of probation or conditional
discharge.
Section 31 amends section 620.50 of the Criminal Procedure Law to make
conforming changes for a material witnesses who are subject to bail.
Section 32 repeals section 216 of the Judiciary Law. Section 33 repeals
section 837-u of the Executive Law.
Section 34 provides that this bill shall take effect immediately upon
its enactment.
 
JUSTIFICATION:
Part JJJ of chapter 59 of the laws of 2019 eliminated the availability
of bail for over 400 crimes, including many serious felonies. Part UU of
chapter 56 of the laws of 2020 expanded the list of offenses for which
bail could be required, but still prohibited any bail for many serious
criminal offenses. Other bail amendments were made by chapter 450 of the
laws of 2019.
As a result of these changes, New York judges cannot impose bail on the
initial arrest of a defendant for crimes such as robbery 2P-1, burglary
2nd, making a terroristic threat, criminal drug sales in the 2rd, drug
sale on school grounds, grand larceny 2nd, assault 3rd, reckless assault
of a child, stalking 2nd, menacing, reckless endangerment, criminal
obstruction of breathing, unlawful imprisonment, labor trafficking,
criminal trespass, coercion, criminal tampering, cemetery desecration,
arson 3rd, petit larceny, auto stripping, forgery, falsifying business
records, health insurance fraud, residential mortgage fraud, perjury,
killing a police dog, promoting prison contraband, bribing a witness,
tampering with a juror, promoting prostitution in a school zone, harass-
ment, endangering the welfare of a child, and many other serious crimes.
By eliminating all bail for hundreds of serious crimes, many dangerous
criminals are released back onto the streets within hours after being
arrested. The stories abound of these criminals then committing other
crimes while awaiting trial. Without any bail to ensure that they return
to court, many criminals simply skip their court appearances.. Not
surprisingly, the number and severity of criminal activity has exploded
across New York State, with double digit increases in violent crime.
This legislation would reinstate judicial discretion in imposing bail
after considering the defendant's flight risk, the seriousness of the
crime, and the danger to others and the community. These standards are
similar to the bail standards used successful in federal criminal courts
for many years.
Allowing New York courts to consider the dangerousness of a criminal
would bring New York State in line with the rest of the nation. New York
is current the only state in the nation that does not allow judges to
consider public safety when releasing dangerous criminals. The Supreme
Court has repeatedly ruled that pretrial detention on public safety
grounds is constitutionally permitted.
To ensure that the defendants are not held in jail pending bail for an
unreasonable amount of time, this legislation also requires courts to
routinely review the status of any pre-trial detainees to ensure that
they should remain in jail pending trial. Thus, the legislation balances
the need to protect the public with the need to ensure that poor defend-
ants do not remain in jail for extended time periods while awaiting
trial.
 
PRIOR LEGISLATIVE HISTORY:
2024: S1266 Referred to Codes
2023: S1266 Referred to Codes
2022: S.1802 Referred to Codes
2020: S.8987/A.11047 Referred to Rules
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This Act would take effect immediately.

Statutes affected:
S5118: 150.10 criminal procedure law, 150.10(3) criminal procedure law, 1.20 criminal procedure law, 1.20(1) criminal procedure law, 150.40 criminal procedure law, 150.40(1) criminal procedure law, 150.50 criminal procedure law, 150.50(1) criminal procedure law, 150.80 criminal procedure law, 510.50 criminal procedure law, 520.10 criminal procedure law, 520.10(2) criminal procedure law, 530.10 criminal procedure law, 530.11 criminal procedure law, 530.11(4) criminal procedure law, 530.12 criminal procedure law, 530.12(11) criminal procedure law, 530.13 criminal procedure law, 530.13(1) criminal procedure law, 530.13(8) criminal procedure law, 530.20 criminal procedure law, 530.40 criminal procedure law, 530.45 criminal procedure law, 530.45(1) criminal procedure law, 530.45(2-a) criminal procedure law, 216.05 criminal procedure law, 216.05(9) criminal procedure law, 410.60 criminal procedure law, 620.50 criminal procedure law, 620.50(3) criminal procedure law, 216 judiciary law, 216(5) judiciary law, 837-u executive law