Under the new bail law there will be a system of “qualifying” and “non-qualifying” offenses for money bail. Non-qualifying offenses are charges where the court cannot set money at a person’s criminal court arraignment, the first time they are in front of a judge. That means the only options available to the court is to release on own recognizance or to release with non-monetary conditions. Qualifying offenses are charges where the court can set money bail at arraignment. The court still has the option to not set money bail but that is discretionary.
Come January 1, everyone charged with a non-qualifying offense must be either released on their own recognizance or released with conditions. People charged with qualifying offenses, may be released at the court’s discretion, but it is not mandatory. Those people are entitled to other rights, including: a third form of bail, either unsecured surety bond or a partially surety bond; bail conditions that is the least restrictive to ensure they will return to court; and an assessment of their ability to pay bail without undue hardship. See below for a summary of the law.
The police must give appearance tickets in lieu of arrests for most misdemeanors and class E felonies, with the exception of certain sex offenses, escape or bail jumping. However the police are not required to issue an appearance ticket if the arrestee:
- Has one or more outstanding criminal or superior court warrants
- Has prior court warrant in the last two years
- Is unable or unwilling to make their identity verifiable and contact info known
- Is charged with a DV crime
- Is charged with a sex crime
- Is charged with a crime where the court may issue an order of protection
- Is charged with a crime where the court may suspend or revoke their drivers license
- Or, where based on observable behavior the officer believes that the person may benefit from medical or mental health care
The police must also inform the arrestee that they may provide their contact information for the purpose of receiving court reminder notifications. The police must transmit that contact information to the local criminal court within 24 hours of issuance. Appearance tickets must be returnable as soon as possible but no longer than 20 days from issuance.
Can Bail Be Set?
Non-qualifying offenses are charges where the court cannot set money at a person’s criminal court arraignment, the first time they are in front of a judge. That means the only options available to the court is to release on own recognizance or to release with non-monetary conditions. The non-qualifying offenses are:
- Misdemeanors except sex crimes (P.L. 130) and contempt in domestic violence cases (P.L. 215.50)
- Robbery in the second degree (robbery aided by another- P.L. 160.10(1))
- Burglary in the second degree (entering or remaining in a dwelling- P.L. 140.25(2))
- Non-violent felonies (except the tampering charges listed below)
People charged with non-qualifiying offenses must be released on their own recognizance unless it is demonstrated and the court makes a determination that they pose a risk of flight to avoid prosecution. The conditions must be the least restrictive conditions that will reasonably assure they return to court. The court must explain its choice of alternative and conditions on the record or in writing. Non-monetary conditions may include:
- To be in contact with pretrial service agency
- Restrictions on travel reasonably related to an actual risk of flight
- To refrain from possessing a firearm, destructive device, or other dangerous weapon
- Pretrial supervision, but only after a showing that no other realistic monetary condition or set of non-monetary conditions will suffice to reasonably assure the person’s return
- Electronic monitoring, but only after a showing that no other realistic non-monetary condition or set of non-monetary conditions will suffice to reasonably assure the person’s return. The court must make its findings on the record or in writing, approve the method of monitoring and ensure that it is the least restrictive and unobtrusive to the greatest extent practicable. EM is allowed for a maximum of 60 days and may only be renewed after a hearing. EM is considered being in custody for the purposes of getting an indictment or corroborating a misdemeanor complaint (CPL 180.80 and 170.70). EM is only available in the following cases:
- All felonies
- Misdemeanor DV
- Misdemeanor sex offense
- Any misdemeanor where the principal was convicted of a violent felony in the last five years. The five years excludes periods of incarceration
- Circumstances in 530.60 (b): see below changes in securing order
No one will be required to pay for any cost of conditions of release. The court may lessen conditions based on compliance, but may not impose additional conditions based on non-compliance without a finding by clear and convincing evidence that the principal violated a condition of release in an important respect.
Can Money Bail Be Set?
Qualifying offenses are charges where the court can set money bail at arraignment. The court still has the option to not set money bail but that is discretionary. Qualifying offenses are:
- Violent felony offenses except robbery in the second and burglary in the second (P.L. 160.10(1) and P.L. 140.25(2))
- Felony witness intimidation under P.L. 215.15
- Felony witness tampering under P.L. 215.11, 215.12, or 215.13
- Class A felonies other than drugs (P.L. article 220, except for 220.77 is bail eligible)
- Felony sex offense under P.L. 70.80 and crimes involving incest under P.L. 255.25,
- Misdemeanor sex offenses under P.L. 130
- Conspiracy in the second where underlying allegation is that principal conspired to
commit class A felony under P.L. 125
- Money laundering in support of terrorism in the first (P.L. 470.24) and second (P.L.
23); felony terrorism under P.L. 490 (except 490.20)
- Felony and misdemeanor contempt in DV cases (P.L. 215.50(3), 215.51(b)(c)(d), 215.52)
- Sex offenses involving children (P.L. 263.30, 263.06, 120.70)
When charged with a qualifying offense the court may release the person on their own recognizance or under non-monetary conditions, fix bail, or if the offense is a qualifying felony, the court may remand the person. If monetary bail is set, the court must set it in three forms including either unsecured or partially secured security bond. Partially Secured Surety Bond is a bond that requires a partial up-front payment to the court (not to the insurance company bail bondsman). The judge picks the % down up to 10%. An Unsecured Surety Bond is a promise to pay the court if someone does not return to court. In the event the court does not approved the bail posted, they must put their reason in writing.
The above misdemeanors (sex offenses and contempt) are not eligible for remand.
Can The Defense Request Bail?
A person may request nominal bail (e.g. $1 bail for jail credit) in any case which the court must set if the court is satisfied that the request is voluntary.
What Can The Court Consider When Determining Bail Or Non-Monetary Conditions?
The court may consider information that is relevant to the person’s return to court. Notable changes to the bail factors the court may consider now read:
- The principle’s activities and history
- The current charges
- Criminal conviction record
- Record with respect to flight to avoid criminal prosecution
- Where money bail is authorized, the principal’s financial circumstances, ability to post bail without posing undue hardship, and their ability to obtain a secured, unsecured or partially secured bond
When Can Bail or Non-Monetary Conditions Be Changed?
For all of the charges, qualifying and non-qualifying, money bail may be set or conditions may be changed after the first court appearance if the court finds by clear and convincing evidence one of the following circumstances:
- Persistently and willfully failing to appear after notice of scheduled appearance in the case before the court
- Violating an order of protection under P.L. 215.51(b)(c) or (d)
- Intimidating a victim or witness (P.L. 215.15, 215.16, 215.17) or tampering with a witness (P.L. 215.11, 215.12, 215.13)
- Is charged with a felony and commits another felony
People who would not otherwise be eligible for monetary bail may have bail fixed if they meet the above criteria.
The court or a designated pretrial service agency will notify all people released on their own recognizance or released with non-monetary conditions of all court appearances in advance by text messages, telephone call, email or first class mail.
Prior to issuing a bench warrant for a failure to appear for a scheduled court date, the court will provide 48 hours notice to the person or their attorney that they are required to appear in order to give them the opportunity to voluntarily appear. This does not apply in cases where the person is charged with a new crime while at liberty.
Effective January 1, 2020.