N.Y. Criminal Procedure Law § 530.20: Securing order by local criminal court when action is pending therein

§ 530.20 Securing order by local criminal court when action is pending

therein.

When a criminal action is pending in a local criminal court, such

court, upon application of a defendant, shall proceed as follows:

1. (a) In cases other than as described in paragraph (b) of this

subdivision, the court shall release the principal pending trial on the

principal's own recognizance or release the principal pending trial

under non-monetary conditions, the determination for which shall be made

in accordance with subdivision one of section 510.10 of this title. The

court shall explain the basis for its determination and choice of

securing order on the record or in writing.

(b) Where the principal stands charged with a qualifying offense, the

court, unless otherwise prohibited by law, may in its discretion release

the principal pending trial on the principal's own recognizance or under

non-monetary conditions, fix bail, order non-monetary conditions in

conjunction with fixing bail, or, where the defendant is charged with a

qualifying offense which is a felony, the court may commit the principal

to the custody of the sheriff. The court shall explain its choice of

securing order on the record or in writing. A principal stands charged

with a qualifying offense when he or she stands charged with:

(i) a felony enumerated in section 70.02 of the penal law, other than

robbery in the second degree as defined in subdivision one of section

160.10 of the penal law, provided, however, that burglary in the second

degree as defined in subdivision two of section 140.25 of the penal law

shall be a qualifying offense only where the defendant is charged with

entering the living area of the dwelling;

(ii) a crime involving witness intimidation under section 215.15 of

the penal law;

(iii) a crime involving witness tampering under section 215.11, 215.12

or 215.13 of the penal law;

(iv) a class A felony defined in the penal law, provided, that for

class A felonies under article two hundred twenty of such law, only

class A-I felonies shall be a qualifying offense;

(v) a sex trafficking offense defined in section 230.34 or 230.34-a of

the penal law, or a felony sex offense defined in section 70.80 of the

penal law or a crime involving incest as defined in section 255.25,

255.26 or 255.27 of such law, or a misdemeanor defined in article one

hundred thirty of such law;

(vi) conspiracy in the second degree as defined in section 105.15 of

the penal law, where the underlying allegation of such charge is that

the defendant conspired to commit a class A felony defined in article

one hundred twenty-five of the penal law;

(vii) money laundering in support of terrorism in the first degree as

defined in section 470.24 of the penal law; money laundering in support

of terrorism in the second degree as defined in section 470.23 of the

penal law; money laundering in support of terrorism in the third degree

as defined in section 470.22 of the penal law; money laundering in

support of terrorism in the fourth degree as defined in section 470.21

of the penal law; or a felony crime of terrorism as defined in article

four hundred ninety of the penal law, other than the crime defined in

section 490.20 of such law;

(viii) criminal contempt in the second degree as defined in

subdivision three of section 215.50 of the penal law, criminal contempt

in the first degree as defined in subdivision (b), (c) or (d) of section

215.51 of the penal law or aggravated criminal contempt as defined in

section 215.52 of the penal law, and the underlying allegation of such

charge of criminal contempt in the second degree, criminal contempt in

the first degree or aggravated criminal contempt is that the defendant

violated a duly served order of protection where the protected party is

a member of the defendant's same family or household as defined in

subdivision one of section 530.11 of this article;

(ix) facilitating a sexual performance by a child with a controlled

substance or alcohol as defined in section 263.30 of the penal law, use

of a child in a sexual performance as defined in section 263.05 of the

penal law or luring a child as defined in subdivision one of section

120.70 of the penal law, promoting an obscene sexual performance by a

child as defined in section 263.10 of the penal law or promoting a

sexual performance by a child as defined in section 263.15 of the penal

law;

(x) any crime that is alleged to have caused the death of another

person;

(xi) criminal obstruction of breathing or blood circulation as defined

in section 121.11 of the penal law, strangulation in the second degree

as defined in section 121.12 of the penal law or unlawful imprisonment

in the first degree as defined in section 135.10 of the penal law, and

is alleged to have committed the offense against a member of the

defendant's same family or household as defined in subdivision one of

section 530.11 of this article;

(xii) aggravated vehicular assault as defined in section 120.04-a of

the penal law or vehicular assault in the first degree as defined in

section 120.04 of the penal law;

(xiii) assault in the third degree as defined in section 120.00 of the

penal law or arson in the third degree as defined in section 150.10 of

the penal law, when such crime is charged as a hate crime as defined in

section 485.05 of the penal law;

(xiv) aggravated assault upon a person less than eleven years old as

defined in section 120.12 of the penal law or criminal possession of a

weapon on school grounds as defined in section 265.01-a of the penal

law;

(xv) grand larceny in the first degree as defined in section 155.42 of

the penal law, enterprise corruption as defined in section 460.20 of the

penal law, or money laundering in the first degree as defined in section

470.20 of the penal law;

(xvi) failure to register as a sex offender pursuant to section one

hundred sixty-eight-t of the correction law or endangering the welfare

of a child as defined in subdivision one of section 260.10 of the penal

law, where the defendant is required to maintain registration under

article six-C of the correction law and designated a level three

offender pursuant to subdivision six of section one hundred

sixty-eight-l of the correction law;

(xvii) a crime involving bail jumping under section 215.55, 215.56 or

215.57 of the penal law, or a crime involving escaping from custody

under section 205.05, 205.10 or 205.15 of the penal law;

(xviii) any felony offense committed by the principal while serving a

sentence of probation or while released to post release supervision;

(xix) a felony, where the defendant qualifies for sentencing on such

charge as a persistent felony offender pursuant to section 70.10 of the

penal law;

(xx) any felony or class A misdemeanor involving harm to an

identifiable person or property, or any charge of criminal possession of

a firearm as defined in section 265.01-b of the penal law where such

charge arose from conduct occurring while the defendant was released on

his or her own recognizance, released under conditions, or had yet to be

arraigned after the issuance of a desk appearance ticket for a separate

felony or class A misdemeanor involving harm to an identifiable person

or property, provided, however, that the prosecutor must show reasonable

cause to believe that the defendant committed the instant crime and any

underlying crime. For the purposes of this subparagraph, any of the

underlying crimes need not be a qualifying offense as defined in this

subdivision. For the purposes of this paragraph, "harm to an

identifiable person or property" shall include but not be limited to

theft of or damage to property. However, based upon a review of the

facts alleged in the accusatory instrument, if the court determines that

such theft is negligible and does not appear to be in furtherance of

other criminal activity, the principal shall be released on his or her

own recognizance or under appropriate non-monetary conditions; or

(xxi) criminal possession of a weapon in the third degree as defined

in subdivision three of section 265.02 of the penal law or criminal sale

of a firearm to a minor as defined in section 265.16 of the penal law.

(d) Notwithstanding the provisions of paragraphs (a) and (b) of this

subdivision, with respect to any charge for which bail or remand is not

ordered, and for which the court would not or could not otherwise

require bail or remand, a defendant may, at any time, request that the

court set bail in a nominal amount requested by the defendant in the

form specified in paragraph (a) of subdivision one of section 520.10 of

this title; if the court is satisfied that the request is voluntary, the

court shall set such bail in such amount.

2. When the defendant is charged, by felony complaint, with a felony,

the court may, in its discretion, and in accordance with section 510.10

of this title, order recognizance, release under non-monetary

conditions, or, where authorized, fix bail, or order non-monetary

conditions in conjunction with fixing bail, or commit the defendant to

the custody of the sheriff except as otherwise provided in subdivision

one of this section or this subdivision:

(a) A city court, a town court or a village court may not order

recognizance or bail when (i) the defendant is charged with a class A

felony, or (ii) the defendant has two previous felony convictions;

(b) No local criminal court may order recognizance, release under

non-monetary conditions or bail with respect to a defendant charged with

a felony unless and until:

(i) The district attorney has been heard in the matter or, after

knowledge or notice of the application and reasonable opportunity to be

heard, has failed to appear at the proceeding or has otherwise waived

his right to do so; and

(ii) The court and counsel for the defendant have been furnished with

a report of the division of criminal justice services concerning the

defendant's criminal record, if any, or with a police department report

with respect to the defendant's prior arrest and conviction record, if

any. If neither report is available, the court, with the consent of the

district attorney, may dispense with this requirement; provided,

however, that in an emergency, including but not limited to a

substantial impairment in the ability of such division or police

department to timely furnish such report, such consent shall not be

required if, for reasons stated on the record, the court deems it

unnecessary. When the court has been furnished with any such report or

record, it shall furnish a copy thereof to counsel for the defendant or,

if the defendant is not represented by counsel, to the defendant.