STATE OF NEW YORK ________________________________________________________________________ 250 2023-2024 Regular Sessions IN SENATE (Prefiled) January 4, 2023 ___________ Introduced by Sens. GALLIVAN, O'MARA -- read twice and ordered printed, and when printed to be committed 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00533-01-3
S. 250 2 1 services agency that a risk and needs assessment be conducted on the 2 eligible principal and such court shall take into account the risk and 3 needs assessment, but such assessment shall not be the sole determina- 4 tive factor, for the purpose of determining whether such principal 5 should be released on the principal's own recognizance, [release the 6 principal] released under non-monetary conditions, or, where authorized, 7 fix bail or commit the principal to the custody of the sheriff. In all 8 such cases, except where another type of securing order is shown to be 9 required by law, the court shall release the principal pending trial on 10 the principal's own recognizance, unless [it is] the risk needs assess- 11 ment has demonstrated and the court [makes an individualized determi- 12 nation] determines that the principal is a danger to the community or 13 poses a risk of flight to avoid prosecution. If such a finding specific 14 to risk of flight to avoid prosecution is made, the court must select 15 the least restrictive alternative and condition or conditions that will 16 reasonably assure the principal's return to court. The court shall 17 explain its choice of release, release with conditions, bail or remand 18 on the record or in writing. In making its determination, the court must 19 consider and take into account available information about the princi- 20 pal, including: 21 (a) The principal's activities and history; 22 (b) If the principal is a defendant, the charges facing the principal; 23 (c) The principal's criminal conviction record if any; 24 (d) The principal's record of previous adjudication as a juvenile 25 delinquent, as retained pursuant to section 354.1 of the family court 26 act, or, of pending cases where fingerprints are retained pursuant to 27 section 306.1 of such act, or a youthful offender, if any; 28 (e) The principal's previous record with respect to flight to avoid 29 criminal prosecution; 30 (f) If monetary bail is authorized, according to the restrictions set 31 forth in this title, the principal's individual financial circumstances, 32 and, in cases where bail is authorized, the principal's ability to post 33 bail without posing undue hardship, as well as his or her ability to 34 obtain a secured, unsecured, or partially secured bond; 35 (g) Any violation by the principal of an order of protection issued by 36 any court; 37 (h) The principal's history of use or possession of a firearm; 38 (i) Whether the charge is alleged to have caused serious harm to an 39 individual or group of individuals; and 40 (j) If the principal is a defendant, in the case of an application for 41 a securing order pending appeal, the merit or lack of merit of the 42 appeal. 43 2. A principal is entitled to representation by counsel under this 44 chapter in preparing an application for release, when a securing order 45 is being considered and when a securing order is being reviewed for 46 modification, revocation or termination. If the principal is financially 47 unable to obtain counsel, counsel shall be assigned to the principal. 48 3. [In cases other than as described in subdivision four of this 49 section the court shall release the principal pending trial on the prin- 50 cipal's own recognizance, unless the court finds on the record or in 51 writing that release on the principal's own recognizance will not 52 reasonably assure the principal's return to court. In such instances, 53 the court shall release the principal under non-monetary conditions, 54 selecting the least restrictive alternative and conditions that will 55 reasonably assure the principal's return to court. The court shall
S. 250 3 1 explain its choice of alternative and conditions on the record or in 2 writing. 3 4. Where the principal stands charged with a qualifying offense, the 4 court, unless otherwise prohibited by law, may in its discretion release 5 the principal pending trial on the principal's own recognizance or under 6 non-monetary conditions, fix bail, or, where the defendant is charged 7 with a qualifying offense which is a felony, the court may commit the 8 principal to the custody of the sheriff. A principal stands charged with 9 a qualifying offense for the purposes of this subdivision when he or she 10 stands charged with: 11 (a) a felony enumerated in section 70.02 of the penal law, other than 12 robbery in the second degree as defined in subdivision one of section 13 160.10 of the penal law, provided, however, that burglary in the second 14 degree as defined in subdivision two of section 140.25 of the penal law 15 shall be a qualifying offense only where the defendant is charged with 16 entering the living area of the dwelling; 17 (b) a crime involving witness intimidation under section 215.15 of the 18 penal law; 19 (c) a crime involving witness tampering under section 215.11, 215.12 20 or 215.13 of the penal law; 21 (d) a class A felony defined in the penal law, provided that for class 22 A felonies under article two hundred twenty of the penal law, only class 23 A-I felonies shall be a qualifying offense; 24 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of 25 the penal law, or a felony sex offense defined in section 70.80 of the 26 penal law, or a crime involving incest as defined in section 255.25, 27 255.26 or 255.27 of such law, or a misdemeanor defined in article one 28 hundred thirty of such law; 29 (f) conspiracy in the second degree as defined in section 105.15 of 30 the penal law, where the underlying allegation of such charge is that 31 the defendant conspired to commit a class A felony defined in article 32 one hundred twenty-five of the penal law; 33 (g) money laundering in support of terrorism in the first degree as 34 defined in section 470.24 of the penal law; money laundering in support 35 of terrorism in the second degree as defined in section 470.23 of the 36 penal law; money laundering in support of terrorism in the third degree 37 as defined in section 470.22 of the penal law; money laundering in 38 support of terrorism in the fourth degree as defined in section 470.21 39 of the penal law; or a felony crime of terrorism as defined in article 40 four hundred ninety of the penal law, other than the crime defined in 41 section 490.20 of such law; 42 (h) criminal contempt in the second degree as defined in subdivision 43 three of section 215.50 of the penal law, criminal contempt in the first 44 degree as defined in subdivision (b), (c) or (d) of section 215.51 of 45 the penal law or aggravated criminal contempt as defined in section 46 215.52 of the penal law, and the underlying allegation of such charge of 47 criminal contempt in the second degree, criminal contempt in the first 48 degree or aggravated criminal contempt is that the defendant violated a 49 duly served order of protection where the protected party is a member of 50 the defendant's same family or household as defined in subdivision one 51 of section 530.11 of this title; 52 (i) facilitating a sexual performance by a child with a controlled 53 substance or alcohol as defined in section 263.30 of the penal law, use 54 of a child in a sexual performance as defined in section 263.05 of the 55 penal law or luring a child as defined in subdivision one of section 56 120.70 of the penal law, promoting an obscene sexual performance by a
S. 250 4 1 child as defined in section 263.10 of the penal law or promoting a sexu- 2 al performance by a child as defined in section 263.15 of the penal law; 3 (j) any crime that is alleged to have caused the death of another 4 person; 5 (k) criminal obstruction of breathing or blood circulation as defined 6 in section 121.11 of the penal law, strangulation in the second degree 7 as defined in section 121.12 of the penal law or unlawful imprisonment 8 in the first degree as defined in section 135.10 of the penal law, and 9 is alleged to have committed the offense against a member of the defend- 10 ant's same family or household as defined in subdivision one of section 11 530.11 of this title; 12 (l) aggravated vehicular assault as defined in section 120.04-a of the 13 penal law or vehicular assault in the first degree as defined in section 14 120.04 of the penal law; 15 (m) assault in the third degree as defined in section 120.00 of the 16 penal law or arson in the third degree as defined in section 150.10 of 17 the penal law, when such crime is charged as a hate crime as defined in 18 section 485.05 of the penal law; 19 (n) aggravated assault upon a person less than eleven years old as 20 defined in section 120.12 of the penal law or criminal possession of a 21 weapon on school grounds as defined in section 265.01-a of the penal 22 law; 23 (o) grand larceny in the first degree as defined in section 155.42 of 24 the penal law, enterprise corruption as defined in section 460.20 of the 25 penal law, or money laundering in the first degree as defined in section 26 470.20 of the penal law; 27 (p) failure to register as a sex offender pursuant to section one 28 hundred sixty-eight-t of the correction law or endangering the welfare 29 of a child as defined in subdivision one of section 260.10 of the penal 30 law, where the defendant is required to maintain registration under 31 article six-C of the correction law and designated a level three offen- 32 der pursuant to subdivision six of section one hundred sixty-eight-l of 33 the correction law; 34 (q) a crime involving bail jumping under section 215.55, 215.56 or 35 215.57 of the penal law, or a crime involving escaping from custody 36 under section 205.05, 205.10 or 205.15 of the penal law; 37 (r) any felony offense committed by the principal while serving a 38 sentence of probation or while released to post release supervision; 39 (s) a felony, where the defendant qualifies for sentencing on such 40 charge as a persistent felony offender pursuant to section 70.10 of the 41 penal law; 42 (t) any felony or class A misdemeanor involving harm to an identifi- 43 able person or property, or any charge of criminal possession of a 44 firearm as defined in section 265.01-b of the penal law, where such 45 charge arose from conduct occurring while the defendant was released on 46 his or her own recognizance, released under conditions, or had yet to be 47 arraigned after the issuance of a desk appearance ticket for a separate 48 felony or class A misdemeanor involving harm to an identifiable person 49 or property, or any charge of criminal possession of a firearm as 50 defined in section 265.01-b of the penal law, provided, however, that 51 the prosecutor must show reasonable cause to believe that the defendant 52 committed the instant crime and any underlying crime. For the purposes 53 of this subparagraph, any of the underlying crimes need not be a quali- 54 fying offense as defined in this subdivision. For the purposes of this 55 paragraph, "harm to an identifiable person or property" shall include 56 but not be limited to theft of or damage to property. However, based
S. 250 5 1 upon a review of the facts alleged in the accusatory instrument, if the 2 court determines that such theft is negligible and does not appear to be 3 in furtherance of other criminal activity, the principal shall be 4 released on his or her own recognizance or under appropriate non-mone- 5 tary conditions; or 6 (u) criminal possession of a weapon in the third degree as defined in 7 subdivision three of section 265.02 of the penal law or criminal sale of 8 a firearm to a minor as defined in section 265.16 of the penal law. 9 5. Notwithstanding the provisions of subdivisions three and four of 10 this section, with] With respect to any charge for which bail or remand 11 is not ordered, and for which the court would not [or could not] other- 12 wise require bail or remand, a defendant may, at any time, request that 13 the court set bail in a nominal amount requested by the defendant in the 14 form specified in paragraph (a) of subdivision one of section 520.10 of 15 this title; if the court is satisfied that the request is voluntary, the 16 court shall set such bail in such amount. 17 [6.] 4. When a securing order is revoked or otherwise terminated in 18 the course of an uncompleted action or proceeding but the principal's 19 future court attendance still is or may be required and the principal is 20 still under the control of a court, a new securing order must be issued. 21 When the court revokes or otherwise terminates a securing order which 22 committed the principal to the custody of the sheriff, the court shall 23 give written notification to the sheriff of such revocation or termi- 24 nation of the securing order. 25 § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as 26 amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is 27 amended to read as follows: 28 1. Upon any occasion when a court has issued a securing order with 29 respect to a principal and the principal is confined in the custody of 30 the sheriff as a result of the securing order or a previously issued 31 securing order, the principal may make an application for recognizance, 32 release under non-monetary conditions or bail. Any such decision by the 33 court for a change in a securing order with respect to a principal shall 34 take into account the risk and needs assessment conducted by the appli- 35 cable county pre-trial services agency, but such assessment shall not be 36 the sole determinative factor. 37 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as 38 amended by section 2 of subpart C of part UU of chapter 56 of the laws 39 of 2022, is amended to read as follows: 40 1. With respect to any principal, the court in all cases, unless 41 otherwise provided by law, must impose the least restrictive kind and 42 degree of control or restriction that is necessary to secure the princi- 43 pal's return to court when required unless such principal poses a danger 44 to the community. In determining that matter, the court [must], in addi- 45 tion to taking into account the risk and needs assessment conducted by 46 the applicable county pre-trial services agency, on the basis of avail- 47 able information, consider and take into account information about the 48 principal that is relevant to the principal's return to court, includ- 49 ing: 50 (a) The principal's activities and history; 51 (b) If the principal is a defendant, the charges facing the principal; 52 (c) The principal's criminal conviction record if any; 53 (d) The principal's record of previous adjudication as a juvenile 54 delinquent, as retained pursuant to section 354.2 of the family court 55 act, or, of pending cases where fingerprints are retained pursuant to 56 section 306.1 of such act, or a youthful offender, if any;
S. 250 6 1 (e) The principal's previous record with respect to flight to avoid 2 criminal prosecution; 3 (f) If monetary bail is authorized, according to the restrictions set 4 forth in this title, the principal's individual financial circumstances, 5 and, in cases where bail is authorized, the principal's ability to post 6 bail without posing undue hardship, as well as his or her ability to 7 obtain a secured, unsecured, or partially secured bond; 8 (g) any violation by the principal of an order of protection issued by 9 any court; 10 (h) the principal's history of use or possession of a firearm; 11 (i) whether the charge is alleged to have caused serious harm to an 12 individual or group of individuals; and 13 (j) If the principal is a defendant, in the case of an application for 14 a securing order pending appeal, the merit or lack of merit of the 15 appeal. 16 § 5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal 17 procedure law, as added by section 8 of part JJJ of chapter 59 of the 18 laws of 2019, is amended to read as follows: 19 [(a) Any questionnaire, instrument or tool] The risk and needs assess- 20 ment instrument used with a principal in the process of considering or 21 determining the principal's possible release on recognizance, release 22 under non-monetary conditions or on bail, or used with a principal in 23 the process of considering or determining a condition or conditions of 24 release or monitoring by a pretrial services agency, shall be promptly 25 made available to the principal and the principal's counsel upon [writ- 26 ten] request. [Any such blank form questionnaire, instrument or tool] 27 Any such blank risk and needs assessment instrument regularly used in 28 the county for such purpose or a related purpose shall be made available 29 to any person promptly upon written request. 30 § 6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal 31 procedure law is REPEALED. 32 § 7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal 33 procedure law, as amended by section 3 of subpart C of part UU of chap- 34 ter 56 of the laws of 2022, is amended to read as follows: 35 (a) [In cases other than as described in paragraph (b) of this subdi- 36 vision] When the principal is charged with an offense or offenses of 37 less than felony grade only, the court shall [release the] request of 38 the applicable county pre-trial services agency a risk and needs assess- 39 ment be conducted on the eligible principal and the court shall take 40 into account the risk and needs assessment, but such assessment shall 41 not be the sole determinative factor, for the purpose of determining 42 whether such principal should be released pending trial on the princi- 43 pal's own recognizance, [unless the court finds on the record or in 44 writing that release on the principal's own recognizance will not 45 reasonably assure the principal's return to court. In such instances, 46 the court shall release the principal under non-monetary conditions, 47 selecting the least restrictive alternative and conditions that will 48 reasonably assure the principal's return to court] released under non- 49 monetary conditions, or where authorized, fix bail or commit the princi- 50 pal to the custody of the sheriff. The court shall explain its choice of 51 [alternative and] release, release with conditions, bail or remand on 52 the record or in writing. In making its determination, the court must 53 consider and take into account available information about the princi- 54 pal, including: 55 (i) the principal's activities and history;
S. 250 7 1 (ii) if the principal is a defendant, the charges facing the princi- 2 pal; 3 (iii) the principal's criminal conviction record if any; 4 (iv) the principal's record of previous adjudication as a juvenile 5 delinquent, as retained pursuant to section 354.1 of the family court 6 act, or of pending cases where fingerprints are retained pursuant to 7 section 306.1 of such act, or a youthful offender, if any; 8 (v) the principal's previous record with respect to flight to avoid 9 criminal prosecution; 10 (vi) if monetary bail is authorized, according to the restrictions set 11 forth in this title, the principal's individual financial circumstances, 12 and, in cases where bail is authorized, the principal's ability to post 13 bail without posing undue hardship, as well as his or her ability to 14 obtain a secured, unsecured, or partially secured bond; 15 (vii) any violation by the principal of an order of protection issued 16 by any court; 17 (viii) the principal's history and use or possession of a firearm; 18 (ix) whether the charge is alleged to have caused serious harm to an 19 individual or group of individuals; and 20 (x) if the principal is a defendant, in the case of an application for 21 a securing order pending appeal, the merit or lack of merit of the 22 appeal. 23 § 8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal 24 procedure law is REPEALED. 25 § 9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal 26 procedure law, as added by section 16 of part JJJ of chapter 59 of the 27 laws of 2019, is relettered paragraph (b) and amended to read as 28 follows: 29 (b) [Notwithstanding the provisions of paragraphs (a) and (b) of this 30 subdivision, with] With respect to any charge for which bail or remand 31 is not ordered, and for which the court would not [or could not] other- 32 wise require bail or remand, a defendant may, at any time, request that 33 the court set bail in a nominal amount requested by the defendant in the 34 form specified in paragraph (a) of subdivision one of section 520.10 of 35 this title; if the court is satisfied that the request is voluntary, the 36 court shall set such bail in such amount. 37 § 10. The opening paragraph of subdivision 2 of section 530.20 of the 38 criminal procedure law, as amended by section 16 of part JJJ of chapter 39 59 of the laws of 2019, is amended to read as follows: 40 When the defendant is charged, by felony complaint, with a felony, the 41 court [may, in its discretion, order] shall, request of the applicable 42 county pre-trial services agency a risk and needs assessment be 43 conducted on the eligible defendant and the court shall take into 44 account the risk and needs assessment, but such assessment shall not be 45 the sole determinative factor, for the purpose of determining whether 46 such defendant should be released on the defendant's own recognizance, 47 [release] released under non-monetary conditions, or, where authorized, 48 bail or commit the defendant to the custody of the sheriff except as 49 otherwise provided in [subdivision one of this section or] this subdivi- 50 sion: 51 § 11. Section 530.40 of the criminal procedure law, as amended by 52 section 18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3 53 as amended by section 3 of subpart B of part UU of chapter 56 of the 54 laws of 2022, and subdivision 4 as amended by section 4 of part UU of 55 chapter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4 56 as amended and paragraph (u) of subdivision 4 as added by section 4 of
S. 250 8 1 subpart B of part UU of chapter 56 of the laws of 2022, is amended to 2 read as follows: 3 § 530.40 Order of recognizance, release under non-monetary conditions or 4 bail; by superior court when action is pending therein. 5 When a criminal action is pending in a superior court, such court, 6 upon application of a defendant, must or may order recognizance or bail 7 as follows: 8 1. When the defendant is charged with an offense or offenses of less 9 than felony grade only, the court must, request of the applicable county 10 pre-trial services agency a risk and needs assessment be conducted on 11 the eligible defendant and the court shall take into account the risk 12 and needs assessment, but such assessment shall not be the sole determi- 13 native factor, for the purpose of determining whether such defendant, 14 unless otherwise provided by law, should be released on an order of 15 recognizance or bail or release under non-monetary conditions [in 16 accordance with this section] or commit the defendant to the custody of 17 the sheriff. 18 2. When the defendant is charged with a felony, the court [may, unless 19 otherwise provided by law in its discretion, order] shall request of 20 the applicable county pre-trial services agency a risk and needs assess- 21 ment be conducted on the eligible defendant and the court shall take 22 into account the risk and needs assessment, but such assessment shall 23 not be the sole determinative factor, for the purpose of determining 24 whether such defendant should be released on the defendant's own recog- 25 nizance, [release] released under non-monetary conditions or, where 26 authorized, bail or commit the defendant to the custody of the sheriff. 27 In any such case in which an indictment (a) has resulted from an order 28 of a local criminal court holding the defendant for the action of the 29 grand jury, or (b) was filed at a time when a felony complaint charging 30 the same conduct was pending in a local criminal court, and in which 31 such local criminal court or a superior court judge has issued an order 32 of recognizance, release under non-monetary conditions or, where author- 33 ized, bail which is still effective, the superior court's order may be 34 in the form of a direction continuing the effectiveness of the previous 35 order. 36 3. [In cases other than as described in subdivision four of this 37 section the court shall release the principal pending trial on the prin- 38 cipal's own recognizance, unless the court finds on the record or in 39 writing that release on the principal's own recognizance will not 40 reasonably assure the principal's return to court. In such instances, 41 the court shall release the principal under non-monetary conditions, 42 selecting the least restrictive alternative and conditions that will 43 reasonably assure the principal's return to court. The court shall 44 explain its choice of alternative and conditions on the record or in 45 writing. In making its determination, the court must consider and take 46 into account available information about the principal, including: 47 (a) the principal's activities and history; 48 (b) if the principal is a defendant, the charges facing the principal; 49 (c) the principal's criminal conviction record if any; 50 (d) the principal's record of previous adjudication as a juvenile 51 delinquent, as retained pursuant to section 354.1 of the family court 52 act, or of pending cases where fingerprints are retained pursuant to 53 section 306.1 of such act, or a youthful offender, if any; 54 (e) the principal's previous record with respect to flight to avoid 55 criminal prosecution;
S. 250 9 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 and 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 4. Where the principal stands charged with a qualifying offense, the 15 court, unless otherwise prohibited by law, may in its discretion release 16 the principal pending trial on the principal's own recognizance or under 17 non-monetary conditions, fix bail, or, where the defendant is charged 18 with a qualifying offense which is a felony, the court may commit the 19 principal to the custody of the sheriff. The court shall explain its 20 choice of release, release with conditions, bail or remand on the record 21 or in writing. A principal stands charged with a qualifying offense for 22 the purposes of this subdivision when he or she stands charged with: 23 (a) a felony enumerated in section 70.02 of the penal law, other than 24 robbery in the second degree as defined in subdivision one of section 25 160.10 of the penal law, provided, however, that burglary in the second 26 degree as defined in subdivision two of section 140.25 of the penal law 27 shall be a qualifying offense only where the defendant is charged with 28 entering the living area of the dwelling; 29 (b) a crime involving witness intimidation under section 215.15 of the 30 penal law; 31 (c) a crime involving witness tampering under section 215.11, 215.12 32 or 215.13 of the penal law; 33 (d) a class A felony defined in the penal law, provided that for class 34 A felonies under article two hundred twenty of such law, only class A-I 35 felonies shall be a qualifying offense; 36 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of 37 the penal law, or a felony sex offense defined in section 70.80 of the 38 penal law or a crime involving incest as defined in section 255.25, 39 255.26 or 255.27 of such law, or a misdemeanor defined in article one 40 hundred thirty of such law; 41 (f) conspiracy in the second degree as defined in section 105.15 of 42 the penal law, where the underlying allegation of such charge is that 43 the defendant conspired to commit a class A felony defined in article 44 one hundred twenty-five of the penal law; 45 (g) money laundering in support of terrorism in the first degree as 46 defined in section 470.24 of the penal law; money laundering in support 47 of terrorism in the second degree as defined in section 470.23 of the 48 penal law; money laundering in support of terrorism in the third degree 49 as defined in section 470.22 of the penal law; money laundering in 50 support of terrorism in the fourth degree as defined in section 470.21 51 of the penal law; or a felony crime of terrorism as defined in article 52 four hundred ninety of the penal law, other than the crime defined in 53 section 490.20 of such law; 54 (h) criminal contempt in the second degree as defined in subdivision 55 three of section 215.50 of the penal law, criminal contempt in the first 56 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
S. 250 10 1 the penal law or aggravated criminal contempt as defined in section 2 215.52 of the penal law, and the underlying allegation of such charge of 3 criminal contempt in the second degree, criminal contempt in the first 4 degree or aggravated criminal contempt is that the defendant violated a 5 duly served order of protection where the protected party is a member of 6 the defendant's same family or household as defined in subdivision one 7 of section 530.11 of this article; 8 (i) facilitating a sexual performance by a child with a controlled 9 substance or alcohol as defined in section 263.30 of the penal law, use 10 of a child in a sexual performance as defined in section 263.05 of the 11 penal law or luring a child as defined in subdivision one of section 12 120.70 of the penal law, promoting an obscene sexual performance by a 13 child as defined in section 263.10 of the penal law or promoting a sexu- 14 al performance by a child as defined in section 263.15 of the penal law; 15 (j) any crime that is alleged to have caused the death of another 16 person; 17 (k) criminal obstruction of breathing or blood circulation as defined 18 in section 121.11 of the penal law, strangulation in the second degree 19 as defined in section 121.12 of the penal law or unlawful imprisonment 20 in the first degree as defined in section 135.10 of the penal law, and 21 is alleged to have committed the offense against a member of the defend- 22 ant's same family or household as defined in subdivision one of section 23 530.11 of this article; 24 (l) aggravated vehicular assault as defined in section 120.04-a of the 25 penal law or vehicular assault in the first degree as defined in section 26 120.04 of the penal law; 27 (m) assault in the third degree as defined in section 120.00 of the 28 penal law or arson in the third degree as defined in section 150.10 of 29 the penal law, when such crime is charged as a hate crime as defined in 30 section 485.05 of the penal law; 31 (n) aggravated assault upon a person less than eleven years old as 32 defined in section 120.12 of the penal law or criminal possession of a 33 weapon on school grounds as defined in section 265.01-a of the penal 34 law; 35 (o) grand larceny in the first degree as defined in section 155.42 of 36 the penal law, enterprise corruption as defined in section 460.20 of the 37 penal law, or money laundering in the first degree as defined in section 38 470.20 of the penal law; 39 (p) failure to register as a sex offender pursuant to section one 40 hundred sixty-eight-t of the correction law or endangering the welfare 41 of a child as defined in subdivision one of section 260.10 of the penal 42 law, where the defendant is required to maintain registration under 43 article six-C of the correction law and designated a level three offen- 44 der pursuant to subdivision six of section one hundred sixty-eight-l of 45 the correction law; 46 (q) a crime involving bail jumping under section 215.55, 215.56 or 47 215.57 of the penal law, or a crime involving escaping from custody 48 under section 205.05, 205.10 or 205.15 of the penal law; 49 (r) any felony offense committed by the principal while serving a 50 sentence of probation or while released to post release supervision; 51 (s) a felony, where the defendant qualifies for sentencing on such 52 charge as a persistent felony offender pursuant to section 70.10 of the 53 penal law; 54 (t) any felony or class A misdemeanor involving harm to an identifi- 55 able person or property, or any charge of criminal possession of a 56 firearm as defined in section 265.01-b of the penal law, where such
S. 250 11 1 charge arose from conduct occurring while the defendant was released on 2 his or her own recognizance, released under conditions, or had yet to be 3 arraigned after the issuance of a desk appearance ticket for a separate 4 felony or class A misdemeanor involving harm to an identifiable person 5 or property, or any charge of criminal possession of a firearm as 6 defined in section 265.01-b of the penal law, provided, however, that 7 the prosecutor must show reasonable cause to believe that the defendant 8 committed the instant crime and any underlying crime. For the purposes 9 of this subparagraph, any of the underlying crimes need not be a quali- 10 fying offense as defined in this subdivision. For the purposes of this 11 paragraph, "harm to an identifiable person or property" shall include 12 but not be limited to theft of or damage to property. However, based 13 upon a review of the facts alleged in the accusatory instrument, if the 14 court determines that such theft is negligible and does not appear to be 15 in furtherance of other criminal activity, the principal shall be 16 released on his or her own recognizance or under appropriate non-mone- 17 tary conditions; or 18 (u) criminal possession of a weapon in the third degree as defined in 19 subdivision three of section 265.02 of the penal law or criminal sale of 20 a firearm to a minor as defined in section 265.16 of the penal law. 21 5. Notwithstanding the provisions of subdivisions three and four of 22 this section, with] With respect to any charge for which bail or remand 23 is not ordered, and for which the court would not [or could not] other- 24 wise require bail or remand, a defendant may, at any time, request that 25 the court set bail in a nominal amount requested by the defendant in the 26 form specified in paragraph (a) of subdivision one of section 520.10 of 27 this title; if the court is satisfied that the request is voluntary, the 28 court shall set such bail in such amount. 29 [6.] 4. Notwithstanding the provisions of [subdivisions] subdivision 30 two[, three and four] of this section, a superior court may not order 31 recognizance, release under non-monetary conditions or, where author- 32 ized, bail, or permit a defendant to remain at liberty pursuant to an 33 existing order, after the defendant has been convicted of either: (a) a 34 class A felony or (b) any class B or class C felony as defined in arti- 35 cle one hundred thirty of the penal law committed or attempted to be 36 committed by a person eighteen years of age or older against a person 37 less than eighteen years of age. In either case the court must commit or 38 remand the defendant to the custody of the sheriff. 39 [7.] 5. Notwithstanding the provisions of [subdivisions] subdivision 40 two[, three and four] of this section, a superior court may not order 41 recognizance, release under non-monetary conditions or, where author- 42 ized, bail when the defendant is charged with a felony unless and until 43 the district attorney has had an opportunity to be heard in the matter 44 and such court and counsel for the defendant have been furnished with a 45 report as described in subparagraph (ii) of paragraph (b) of subdivision 46 two of section 530.20 of this article. 47 § 12. This act shall take effect immediately.