New York Bail Reform

Jason Goldman
July 3, 2024
Bail Reform

Table of Contents

The New York State Bail statute is expansive, complex, and at times confusing to not only defendants but also to judges and prosecutors alike. Indeed, recent reforms and rollbacks of those reforms have only added to the many layers which encompass the statute.

Ultimately, bail comes into play where an individual has been arrested and will be arraigned on either a criminal court complaint or on an indictment. Generally speaking, the current iterations of the laws governing securing orders (bail) mandates that “the court, in all cases unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure [your] return to court…” See CPL 510.30(1). As such, it is critical during an arraignment that your defense attorney be well-versed with not only the allegations but also your financial status, warrant status, and criminal history. 

Is New York Bail Reform Still in Effect?

Yes, bail reforms which were enacted in 2019 are still in effect. However, there were certain rollbacks made thereafter which have limited, to some extent, the reforms that were put in place. The reforms led to particular concern over the idea of “repeat offenders.” In response, the Legislature agreed to add more than 30 additional misdemeanors and nonviolent felonies to the list of bail-eligible “qualifying offenses,” including:

  • Any crime that allegedly caused the death of another person.
  • Vehicular assault, strangulation or unlawful imprisonment related to domestic violence.
  • A hate crime involving third-degree assault or third-degree arson.
  • Criminal possession of a weapon on school grounds.
  • Grand larceny and money laundering (even not in support of terrorism).
  • Failure to register as a sex offender.
  • Skipping bail or fleeing from custody.

In addition to making specific charges bail-eligible, the 2020 modifications to the bail law also made it easier for judges to set cash bail for so-called “repeat offenders.” A judge could set cash bail for a defendant accused of any felony – even one that would ordinarily not be bail-eligible – if the defendant was classified as a “persistent felony offender,” which meant that they had previously served prison time for felonies on at least two occasions. The same was true of any defendant accused of a felony while out on parole. In addition, judges were allowed to impose cash bail for any defendant who was accused of a felony or Class A misdemeanor that involved “harm to an identifiable person or property,” released after arraignment and then later accused of another felony or Class A misdemeanor involving harm to a person or property.

Factors to Consider

If charged with a crime that is not eligible for custodial detention or a similar securing order, your arraignment lawyer must argue that bail is not allowable as a matter of law. Therefore, before setting a monetary condition such as bail, as opposed to those that are non-monetary or releasing you on your own recognizance, aka. ROR, the District Attorney or other law enforcement agency must charge you with what is known now as a qualified offense. Even assuming you face such a crime, the court does not have free reign in setting securing orders. Instead, judges must follow guidelines codified in CPL 510.30(1)(a-g).

These factors include, but are not limited to:

  • Your activities and history.
  • The criminal offense(s) and charge(s) you face.
  • Your criminal record solely as it relates to convictions as opposed to arrests.
  • Whether you have previously been adjudicated a Juvenile Delinquent or Youthful Offender.
  • Your previous record with respect to flight to avoid prosecution and not merely warrants for failing to comply with plea conditions such as community service.
  • Your individual financial circumstances in the event monetary bail is set and whether posting bond would be an undue hardship. The court may consider your ability to obtain a secured, unsecured or partially secured bond.
  • If the charge is one of Domestic Violence, whether there are any prior convictions for violating an Order of Protection or a “history of use or possession of firearms.”

Different Forms of Bail

An important development in the bail statute has centered upon the different ways in which a judge must set bail if he or she elects to do so. Depending on the offense charged, CPL 500.10 defines the differing types of securing order, both monetary and non-monetary, while CPL 520.10(1) establishes how these bail options can be affixed by a court. These include cash, credit card, secured surety bond, partially secured surety bond, unsecured surety bond, secured appearance bond, partially secured appearance bond, and unsecured appearance bond. Additionally, electronic monitoring is permitted and, should it be granted as a condition of your release, you, the accused, are not required to pay for this service.

According to CPL 520.10(2)(b), a court is required that “bail be posted in any one of three or more of the forms specified in subdivision one of this section, designated in the alternative, and may designate different amounts varying with the forms, except that one of the forms shall be either an unsecured or partially secured surety bond, as selected by the court.”

As mentioned above, a more recent development has been the option to pay a partially-secured bond. Generally speaking, this amount is 10% of the overall bail ordered by the Court, and the money itself is returnable to the suretors at the disposition of a case. Hence, a $100,000 partially secured bond only requires that $10,000 be paid to the Court, which will later be exonerated and refunded.

Arraignments and Desk-Appearance Tickets

As mentioned above, it is crucial that you are represented at your criminal court or supreme court arraignment by an experienced and well-versed defense attorney. Arraignments are critical – as discussed further below, it is difficult to undo an initial appearance, and if the arraigning judge remands a client or sets an unattainable bail amount, the individual will most likely have to fight the case from the inside (ie. Rikers Island or another holding facility). Needless to say, this can create extra stress on mounting a defense and will have significant collateral consequences.

Even with desk-appearances tickets (DAT), it is favorable to appear with a defense lawyer who is prepared and able to make a successful argument for release at the arraignment date. Recently – New York has permitted desk appearance tickets to be written for serious charges, from misdemeanor assaults to class-E felonies. Given the seriousness of these cases, the DAT appearance should be treated with the same care and attention as any other arraignment.

Bail Modification and Revocation

Although a judge can set bail or a condition of release in one manner at your arraignment, should you commit, for example, a violent felony while you are out of custody on your original felony case a judge can set more restrictive terms of your release pursuant to CPL 530.60(2)(a)

Even if you are not charged with a felony, but while out commit a new felony crime, willfully and persistently don’t go to court as required, or violate an Order of Protection, a judge can also change your status. In order to do so, however, your attorney, as a matter of law, has a right to a bail modification hearing where the court is required to find that you committed the acts necessary to revoke your current conditions based on the respective legal standards of reasonable cause to believe or clear and convincing evidence.

However, even if the prosecution is successful in convincing the court that new and more restrictive measures are necessary, the judge must still use “the least restrictive condition or conditions that will reasonably assure [your] return to court.” See CPL 510.40(3).

Equally important, assuming you are compliant and appear as scheduled, your defense attorney can seek the withdrawal of all conditions, your release under non-monetary terms or even a change in bail at any future court date after your arraignment. Judges must consider these applications and cannot summarily deny them nor ignore their duty even if they disagree with your application in the end. See CPL 510.40(3). In fact, you have a statutory right to be heard and present evidence that you are deserving of a less or the least restrictive means to ensure your return to court. See CPL 510.20.

Recent Result from The Law Offices of Jason Goldman

Recently, The Law Offices of Jason Goldman achieved a very significant arraignment and bail result on a highly publicized case. In this matter, our client was charged with a homicide following a deadly encounter on a subway train. At the arraignment proceeding, the government requested that the client be held in jail on either remand (no bail) or a significant bail amount ($1,000,000). During this hearing, our office put forth various arguments which ultimately persuaded a criminal court judge to outright release our client without any bail being set, despite the severity of the charged crime.

This outcome represented perhaps the only release on own recognizance (ROR) on a New York murder case in the last several years, if not decades.

Contact The Law Offices of Jason Goldman

If you are facing a desk-appearance ticket, a criminal court arraignment, or a supreme court arraignment on an indictment, it is crucial that you have a defense attorney that is well-versed with the latest New York state bail laws. As mentioned, oftentimes, the remand, bail, or release decision made by a court during a first appearance arraignment will remain throughout the pendency of a case. Please contact The Law Offices of Jason Goldman to discuss your matter today.