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.