N.Y. Criminal Procedure Law § 530.60: Certain modifications of a securing order

§ 530.60 Certain modifications of a securing order.

1. Whenever in the course of a criminal action or proceeding a

defendant is at liberty as a result of an order of recognizance, release

under non-monetary conditions or bail issued pursuant to this chapter,

and the court considers it necessary to review such order, whether due

to a motion by the people or otherwise, the court may, and except as

provided in subdivision two of section 510.50 of this title concerning a

failure to appear in court, by a bench warrant if necessary, require the

defendant to appear before the court. Upon such appearance, the court,

for good cause shown, may revoke the order of recognizance, release

under non-monetary conditions, or bail. If the defendant is entitled to

recognizance, release under non-monetary conditions, or bail as a matter

of right, the court must issue another such order. If the defendant is

not, the court may either issue such an order or commit the defendant to

the custody of the sheriff in accordance with this section.

Where the defendant is committed to the custody of the sheriff and is

held on a felony complaint, a new period as provided in section 180.80

of this chapter shall commence to run from the time of the defendant's

commitment under this subdivision.

2. (a) Whenever in the course of a criminal action or proceeding a

defendant charged with the commission of a felony is at liberty as a

result of an order of recognizance, release under non-monetary

conditions or bail issued pursuant to this article it shall be grounds

for revoking such order that the court finds reasonable cause to believe

the defendant committed one or more specified class A or violent felony

offenses or intimidated a victim or witness in violation of section

215.15, 215.16 or 215.17 of the penal law while at liberty.

(b) Except as provided in paragraph (a) of this subdivision or any

other law, whenever in the course of a criminal action or proceeding a

defendant charged with the commission of an offense is at liberty as a

result of a securing order issued pursuant to this article it shall be

grounds for revoking such order and imposing a new securing order in

accordance with paragraph (d) of this subdivision, the basis for which

shall be made on the record or in writing, in such criminal action or

proceeding when the court has found, by clear and convincing evidence,

that the defendant:

(i) persistently and willfully failed to appear after notice of

scheduled appearances in the case before the court; or

(ii) violated an order of protection in the manner prohibited by

subdivision (b), (c) or (d) of section 215.51 of the penal law while at

liberty; or

(iii) stands charged in such criminal action or proceeding with a

misdemeanor or violation and, after being so charged, intimidated a

victim or witness in violation of section 215.15, 215.16 or 215.17 of

the penal law or tampered with a witness in violation of section 215.11,

215.12 or 215.13 of the penal law, law while at liberty; or

(iv) stands charged in such action or proceeding with a felony and,

after being so charged, committed a felony while at liberty.

(c) Before revoking an order of recognizance, release under

non-monetary conditions, or bail pursuant to this subdivision, the court

must hold a hearing and shall receive any relevant, admissible evidence

not legally privileged. The defendant may cross-examine witnesses and

may present relevant, admissible evidence on his own behalf. Such

hearing may be consolidated with, and conducted at the same time as, a

felony hearing conducted pursuant to article one hundred eighty of this

chapter. A transcript of testimony taken before the grand jury upon

presentation of the subsequent offense shall be admissible as evidence

during the hearing. The district attorney may move to introduce grand

jury testimony of a witness in lieu of that witness' appearance at the

hearing.

(d) Revocation of an order of recognizance, release under non-monetary

conditions or bail and a new securing order fixing bail or commitment,

as specified in this paragraph and pursuant to this subdivision shall be

for the following periods:

(i) Under paragraph (a) of this subdivision, revocation of the order

of recognizance, release under non-monetary conditions or, as the case

may be, bail, and a new securing order fixing bail or committing the

defendant to the custody of the sheriff shall be as follows:

(A) For a period not to exceed ninety days exclusive of any periods of

adjournment requested by the defendant; or

(B) Until the charges contained within the accusatory instrument have

been reduced or dismissed such that no count remains which charges the

defendant with commission of a felony; or

(C) Until reduction or dismissal of the charges contained within the

accusatory instrument charging the subsequent offense such that no count

remains which charges the defendant with commission of a class A or

violent felony offense.

Upon expiration of any of the three periods specified within this

subparagraph, whichever is shortest, the court may grant or deny release

upon an order of bail or recognizance in accordance with the provisions

of this article. Upon conviction to an offense the provisions of article

five hundred thirty of this chapter shall apply;

(ii) Under subparagraph (i) of paragraph (b) of this subdivision,

revocation of a previously issued securing order shall result in the

issuance of a new securing order which may, if otherwise authorized by

law, permit the principal's release on recognizance or release under

non-monetary conditions, but shall also render the defendant eligible

for an order fixing bail, or ordering non-monetary conditions in

conjunction with fixing bail, provided, however, that in accordance with

the principles in this title the court must impose a new securing order

in accordance with subdivision one of section 510.10 of this title, and

in imposing such order, may consider the circumstances warranting such

revocation. Nothing in this subparagraph shall be interpreted as

shortening the period of detention, or requiring or authorizing any less

restrictive form of a securing order, which may be imposed pursuant to

any other law; and

(iii) Under subparagraphs (ii), (iii), and (iv) of paragraph (b) of

this subdivision, revocation of a previously issued securing order shall

result in the issuance of a new securing order which may, if otherwise

authorized by law, permit the principal's release on recognizance or

release under non-monetary conditions, but shall also render the

defendant eligible for an order fixing bail or ordering non-monetary

conditions in conjunction with fixing bail. In issuing the new securing

order, the court shall consider the kind and degree of control or

restriction necessary to reasonably assure the principal's return to

court and compliance with court conditions, and select a securing order

consistent with its determination, taking into account the factors

required to be considered under subdivision one of section 510.10 of

this title, the circumstances warranting such revocation, and the nature

and extent of the principal's noncompliance with previously ordered

non-monetary conditions of the securing order subject to revocation

under this subdivision. Nothing in this subparagraph shall be

interpreted as shortening the period of detention, or requiring or

authorizing any less restrictive form of a securing order, which may be

imposed pursuant to any other law.

(e) Notwithstanding the provisions of paragraph (a) or (b) of this

subdivision a defendant, against whom a felony complaint has been filed

which charges the defendant with commission of a class A or violent

felony offense or violation of section 215.15, 215.16 or 215.17 of the

penal law committed while he was at liberty as specified therein, may be

committed to the custody of the sheriff pending a revocation hearing for

a period not to exceed seventy-two hours. An additional period not to

exceed seventy-two hours may be granted by the court upon application of

the district attorney upon a showing of good cause or where the failure

to commence the hearing was due to the defendant's request or occurred

with his consent. Such good cause must consist of some compelling fact

or circumstance which precluded conducting the hearing within the

initial prescribed period.