N.Y. Criminal Procedure Law § 530.40: Order of recognizance, release under non-monetary conditions or bail; by superior court when action is pending therein

§ 530.40 Order of recognizance, release under non-monetary conditions or

bail; by superior court when action is pending therein.

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

upon application of a defendant, must or may order recognizance or bail

as follows:

1. When the defendant is charged with an offense or offenses of less

than felony grade only, the court must, unless otherwise provided by

law, order recognizance or release under non-monetary conditions in

accordance with this section.

2. When the defendant is charged with a felony, the court may, unless

otherwise provided by law in its discretion, order recognizance, release

under non-monetary conditions or, where authorized, bail. In any such

case in which an indictment (a) has resulted from an order of a local

criminal court holding the defendant for the action of the grand jury,

or (b) was filed at a time when a felony complaint charging the same

conduct was pending in a local criminal court, and in which such local

criminal court or a superior court judge has issued an order of

recognizance, release under non-monetary conditions or, where

authorized, bail which is still effective, the superior court's order

may be in the form of a direction continuing the effectiveness of the

previous order.

3. In cases other than as described in subdivision four of this

section 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 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.

4. Where the principal stands charged with a qualifying offense, the

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

accordance with section 510.10 of this title, release the principal

pending trial on the principal's own recognizance or under non-monetary

conditions, fix bail, or 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 the basis for its

determination and its choice of securing order on the record or in

writing. A principal stands charged with a qualifying offense for the

purposes of this subdivision when he or she stands charged with:

(a) 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;

(b) a crime involving witness intimidation under section 215.15 of the

penal law;

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

or 215.13 of the penal law;

(d) 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;

(e) 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;

(f) 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;

(g) 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;

(h) 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;

(i) 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;

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

person;

(k) 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;

(l) 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;

(m) 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;

(n) 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;

(o) 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;

(p) 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;

(q) 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;

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

sentence of probation or while released to post release supervision;

(s) 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;

(t) 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, or any charge of criminal possession of a firearm as

defined in section 265.01-b of the penal law, 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

(u) 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.

5. Notwithstanding the provisions of subdivisions three and four of

this section, 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.

6. Notwithstanding the provisions of subdivisions two, three and four

of this section, a superior court may not order recognizance, release

under non-monetary conditions or, where authorized, bail, or permit a

defendant to remain at liberty pursuant to an existing order, after the

defendant has been convicted of either: (a) a class A felony or (b) any

class B or class C felony as defined in article one hundred thirty of

the penal law committed or attempted to be committed by a person

eighteen years of age or older against a person less than eighteen years

of age. In either case the court must commit or remand the defendant to

the custody of the sheriff.

7. Notwithstanding the provisions of subdivisions two, three and four

of this section, a superior court may not order recognizance, release

under non-monetary conditions or, where authorized, bail when the

defendant is charged with a felony unless and until the district

attorney has had an opportunity to be heard in the matter and such court

and counsel for the defendant have been furnished with a report as

described in subparagraph (ii) of paragraph (b) of subdivision two of

section 530.20 of this article.