STATE OF NEW YORK
________________________________________________________________________
250
2023-2024 Regular Sessions
IN SENATE
(Prefiled)
January 4, 2023
___________
Introduced by Sens. GALLIVAN, O'MARA -- read twice and ordered printed,
and when printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to bail reform;
and to repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 500.10 of the criminal procedure law is amended by
2 adding a new subdivision 23 to read as follows:
3 23. "Risk and needs assessment" means a risk and needs assessment
4 instrument, approved by the chief administrative judge of the unified
5 court system. Such approved assessment instrument shall be objective,
6 standardized and developed based on analysis of empirical data and risk
7 factors relevant to the principal's danger to the community and risk of
8 failure of a principal to appear. Such approved assessment instrument
9 shall not be discriminatory based on race, national origin, sex, any
10 other protected class or socioeconomic status.
11 § 2. Section 510.10 of the criminal procedure law, as amended by
12 section 2 of part JJJ of chapter 59 of the laws of 2019, subdivision 1
13 as amended by section 1 of subpart C of part UU of chapter 56 of the
14 laws of 2022, subdivision 4 as amended by section 2 of part UU of chap-
15 ter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4 as
16 amended and paragraph (u) of subdivision 4 as added by section 2 of
17 subpart B of part UU of chapter 56 of the laws of 2022, is amended to
18 read as follows:
19 § 510.10 Securing order; when required; alternatives available; standard
20 to be applied.
21 1. When a principal, whose future court attendance at a criminal
22 action or proceeding is or may be required, comes under the control of a
23 court, such court shall, in accordance with this title, by a securing
24 order [release the principal] request of the applicable county pre-trial
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00533-01-3
S. 250 2
1 services agency that a risk and needs assessment be conducted on the
2 eligible principal and such court shall take into account the risk and
3 needs assessment, but such assessment shall not be the sole determina-
4 tive factor, for the purpose of determining whether such principal
5 should be released on the principal's own recognizance, [release the
6 principal] released under non-monetary conditions, or, where authorized,
7 fix bail or commit the principal to the custody of the sheriff. In all
8 such cases, except where another type of securing order is shown to be
9 required by law, the court shall release the principal pending trial on
10 the principal's own recognizance, unless [it is] the risk needs assess-
11 ment has demonstrated and the court [makes an individualized determi-
12 nation] determines that the principal is a danger to the community or
13 poses a risk of flight to avoid prosecution. If such a finding specific
14 to risk of flight to avoid prosecution is made, the court must select
15 the least restrictive alternative and condition or conditions that will
16 reasonably assure the principal's return to court. The court shall
17 explain its choice of release, release with conditions, bail or remand
18 on the record or in writing. In making its determination, the court must
19 consider and take into account available information about the princi-
20 pal, including:
21 (a) The principal's activities and history;
22 (b) If the principal is a defendant, the charges facing the principal;
23 (c) The principal's criminal conviction record if any;
24 (d) The principal's record of previous adjudication as a juvenile
25 delinquent, as retained pursuant to section 354.1 of the family court
26 act, or, of pending cases where fingerprints are retained pursuant to
27 section 306.1 of such act, or a youthful offender, if any;
28 (e) The principal's previous record with respect to flight to avoid
29 criminal prosecution;
30 (f) If monetary bail is authorized, according to the restrictions set
31 forth in this title, the principal's individual financial circumstances,
32 and, in cases where bail is authorized, the principal's ability to post
33 bail without posing undue hardship, as well as his or her ability to
34 obtain a secured, unsecured, or partially secured bond;
35 (g) Any violation by the principal of an order of protection issued by
36 any court;
37 (h) The principal's history of use or possession of a firearm;
38 (i) Whether the charge is alleged to have caused serious harm to an
39 individual or group of individuals; and
40 (j) If the principal is a defendant, in the case of an application for
41 a securing order pending appeal, the merit or lack of merit of the
42 appeal.
43 2. A principal is entitled to representation by counsel under this
44 chapter in preparing an application for release, when a securing order
45 is being considered and when a securing order is being reviewed for
46 modification, revocation or termination. If the principal is financially
47 unable to obtain counsel, counsel shall be assigned to the principal.
48 3. [In cases other than as described in subdivision four of this
49 section the court shall release the principal pending trial on the prin-
50 cipal's own recognizance, unless the court finds on the record or in
51 writing that release on the principal's own recognizance will not
52 reasonably assure the principal's return to court. In such instances,
53 the court shall release the principal under non-monetary conditions,
54 selecting the least restrictive alternative and conditions that will
55 reasonably assure the principal's return to court. The court shall
S. 250 3
1 explain its choice of alternative and conditions on the record or in
2 writing.
3 4. Where the principal stands charged with a qualifying offense, the
4 court, unless otherwise prohibited by law, may in its discretion release
5 the principal pending trial on the principal's own recognizance or under
6 non-monetary conditions, fix bail, or, where the defendant is charged
7 with a qualifying offense which is a felony, the court may commit the
8 principal to the custody of the sheriff. A principal stands charged with
9 a qualifying offense for the purposes of this subdivision when he or she
10 stands charged with:
11 (a) a felony enumerated in section 70.02 of the penal law, other than
12 robbery in the second degree as defined in subdivision one of section
13 160.10 of the penal law, provided, however, that burglary in the second
14 degree as defined in subdivision two of section 140.25 of the penal law
15 shall be a qualifying offense only where the defendant is charged with
16 entering the living area of the dwelling;
17 (b) a crime involving witness intimidation under section 215.15 of the
18 penal law;
19 (c) a crime involving witness tampering under section 215.11, 215.12
20 or 215.13 of the penal law;
21 (d) a class A felony defined in the penal law, provided that for class
22 A felonies under article two hundred twenty of the penal law, only class
23 A-I felonies shall be a qualifying offense;
24 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
25 the penal law, or a felony sex offense defined in section 70.80 of the
26 penal law, or a crime involving incest as defined in section 255.25,
27 255.26 or 255.27 of such law, or a misdemeanor defined in article one
28 hundred thirty of such law;
29 (f) conspiracy in the second degree as defined in section 105.15 of
30 the penal law, where the underlying allegation of such charge is that
31 the defendant conspired to commit a class A felony defined in article
32 one hundred twenty-five of the penal law;
33 (g) money laundering in support of terrorism in the first degree as
34 defined in section 470.24 of the penal law; money laundering in support
35 of terrorism in the second degree as defined in section 470.23 of the
36 penal law; money laundering in support of terrorism in the third degree
37 as defined in section 470.22 of the penal law; money laundering in
38 support of terrorism in the fourth degree as defined in section 470.21
39 of the penal law; or a felony crime of terrorism as defined in article
40 four hundred ninety of the penal law, other than the crime defined in
41 section 490.20 of such law;
42 (h) criminal contempt in the second degree as defined in subdivision
43 three of section 215.50 of the penal law, criminal contempt in the first
44 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
45 the penal law or aggravated criminal contempt as defined in section
46 215.52 of the penal law, and the underlying allegation of such charge of
47 criminal contempt in the second degree, criminal contempt in the first
48 degree or aggravated criminal contempt is that the defendant violated a
49 duly served order of protection where the protected party is a member of
50 the defendant's same family or household as defined in subdivision one
51 of section 530.11 of this title;
52 (i) facilitating a sexual performance by a child with a controlled
53 substance or alcohol as defined in section 263.30 of the penal law, use
54 of a child in a sexual performance as defined in section 263.05 of the
55 penal law or luring a child as defined in subdivision one of section
56 120.70 of the penal law, promoting an obscene sexual performance by a
S. 250 4
1 child as defined in section 263.10 of the penal law or promoting a sexu-
2 al performance by a child as defined in section 263.15 of the penal law;
3 (j) any crime that is alleged to have caused the death of another
4 person;
5 (k) criminal obstruction of breathing or blood circulation as defined
6 in section 121.11 of the penal law, strangulation in the second degree
7 as defined in section 121.12 of the penal law or unlawful imprisonment
8 in the first degree as defined in section 135.10 of the penal law, and
9 is alleged to have committed the offense against a member of the defend-
10 ant's same family or household as defined in subdivision one of section
11 530.11 of this title;
12 (l) aggravated vehicular assault as defined in section 120.04-a of the
13 penal law or vehicular assault in the first degree as defined in section
14 120.04 of the penal law;
15 (m) assault in the third degree as defined in section 120.00 of the
16 penal law or arson in the third degree as defined in section 150.10 of
17 the penal law, when such crime is charged as a hate crime as defined in
18 section 485.05 of the penal law;
19 (n) aggravated assault upon a person less than eleven years old as
20 defined in section 120.12 of the penal law or criminal possession of a
21 weapon on school grounds as defined in section 265.01-a of the penal
22 law;
23 (o) grand larceny in the first degree as defined in section 155.42 of
24 the penal law, enterprise corruption as defined in section 460.20 of the
25 penal law, or money laundering in the first degree as defined in section
26 470.20 of the penal law;
27 (p) failure to register as a sex offender pursuant to section one
28 hundred sixty-eight-t of the correction law or endangering the welfare
29 of a child as defined in subdivision one of section 260.10 of the penal
30 law, where the defendant is required to maintain registration under
31 article six-C of the correction law and designated a level three offen-
32 der pursuant to subdivision six of section one hundred sixty-eight-l of
33 the correction law;
34 (q) a crime involving bail jumping under section 215.55, 215.56 or
35 215.57 of the penal law, or a crime involving escaping from custody
36 under section 205.05, 205.10 or 205.15 of the penal law;
37 (r) any felony offense committed by the principal while serving a
38 sentence of probation or while released to post release supervision;
39 (s) a felony, where the defendant qualifies for sentencing on such
40 charge as a persistent felony offender pursuant to section 70.10 of the
41 penal law;
42 (t) any felony or class A misdemeanor involving harm to an identifi-
43 able person or property, or any charge of criminal possession of a
44 firearm as defined in section 265.01-b of the penal law, where such
45 charge arose from conduct occurring while the defendant was released on
46 his or her own recognizance, released under conditions, or had yet to be
47 arraigned after the issuance of a desk appearance ticket for a separate
48 felony or class A misdemeanor involving harm to an identifiable person
49 or property, or any charge of criminal possession of a firearm as
50 defined in section 265.01-b of the penal law, provided, however, that
51 the prosecutor must show reasonable cause to believe that the defendant
52 committed the instant crime and any underlying crime. For the purposes
53 of this subparagraph, any of the underlying crimes need not be a quali-
54 fying offense as defined in this subdivision. For the purposes of this
55 paragraph, "harm to an identifiable person or property" shall include
56 but not be limited to theft of or damage to property. However, based
S. 250 5
1 upon a review of the facts alleged in the accusatory instrument, if the
2 court determines that such theft is negligible and does not appear to be
3 in furtherance of other criminal activity, the principal shall be
4 released on his or her own recognizance or under appropriate non-mone-
5 tary conditions; or
6 (u) criminal possession of a weapon in the third degree as defined in
7 subdivision three of section 265.02 of the penal law or criminal sale of
8 a firearm to a minor as defined in section 265.16 of the penal law.
9 5. Notwithstanding the provisions of subdivisions three and four of
10 this section, with] With respect to any charge for which bail or remand
11 is not ordered, and for which the court would not [or could not] other-
12 wise require bail or remand, a defendant may, at any time, request that
13 the court set bail in a nominal amount requested by the defendant in the
14 form specified in paragraph (a) of subdivision one of section 520.10 of
15 this title; if the court is satisfied that the request is voluntary, the
16 court shall set such bail in such amount.
17 [6.] 4. When a securing order is revoked or otherwise terminated in
18 the course of an uncompleted action or proceeding but the principal's
19 future court attendance still is or may be required and the principal is
20 still under the control of a court, a new securing order must be issued.
21 When the court revokes or otherwise terminates a securing order which
22 committed the principal to the custody of the sheriff, the court shall
23 give written notification to the sheriff of such revocation or termi-
24 nation of the securing order.
25 § 3. Subdivision 1 of section 510.20 of the criminal procedure law, as
26 amended by section 3 of part JJJ of chapter 59 of the laws of 2019, is
27 amended to read as follows:
28 1. Upon any occasion when a court has issued a securing order with
29 respect to a principal and the principal is confined in the custody of
30 the sheriff as a result of the securing order or a previously issued
31 securing order, the principal may make an application for recognizance,
32 release under non-monetary conditions or bail. Any such decision by the
33 court for a change in a securing order with respect to a principal shall
34 take into account the risk and needs assessment conducted by the appli-
35 cable county pre-trial services agency, but such assessment shall not be
36 the sole determinative factor.
37 § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
38 amended by section 2 of subpart C of part UU of chapter 56 of the laws
39 of 2022, is amended to read as follows:
40 1. With respect to any principal, the court in all cases, unless
41 otherwise provided by law, must impose the least restrictive kind and
42 degree of control or restriction that is necessary to secure the princi-
43 pal's return to court when required unless such principal poses a danger
44 to the community. In determining that matter, the court [must], in addi-
45 tion to taking into account the risk and needs assessment conducted by
46 the applicable county pre-trial services agency, on the basis of avail-
47 able information, consider and take into account information about the
48 principal that is relevant to the principal's return to court, includ-
49 ing:
50 (a) The principal's activities and history;
51 (b) If the principal is a defendant, the charges facing the principal;
52 (c) The principal's criminal conviction record if any;
53 (d) The principal's record of previous adjudication as a juvenile
54 delinquent, as retained pursuant to section 354.2 of the family court
55 act, or, of pending cases where fingerprints are retained pursuant to
56 section 306.1 of such act, or a youthful offender, if any;
S. 250 6
1 (e) The principal's previous record with respect to flight to avoid
2 criminal prosecution;
3 (f) If monetary bail is authorized, according to the restrictions set
4 forth in this title, the principal's individual financial circumstances,
5 and, in cases where bail is authorized, the principal's ability to post
6 bail without posing undue hardship, as well as his or her ability to
7 obtain a secured, unsecured, or partially secured bond;
8 (g) any violation by the principal of an order of protection issued by
9 any court;
10 (h) the principal's history of use or possession of a firearm;
11 (i) whether the charge is alleged to have caused serious harm to an
12 individual or group of individuals; and
13 (j) If the principal is a defendant, in the case of an application for
14 a securing order pending appeal, the merit or lack of merit of the
15 appeal.
16 § 5. Paragraph (a) of subdivision 3 of section 510.45 of the criminal
17 procedure law, as added by section 8 of part JJJ of chapter 59 of the
18 laws of 2019, is amended to read as follows:
19 [(a) Any questionnaire, instrument or tool] The risk and needs assess-
20 ment instrument used with a principal in the process of considering or
21 determining the principal's possible release on recognizance, release
22 under non-monetary conditions or on bail, or used with a principal in
23 the process of considering or determining a condition or conditions of
24 release or monitoring by a pretrial services agency, shall be promptly
25 made available to the principal and the principal's counsel upon [writ-
26 ten] request. [Any such blank form questionnaire, instrument or tool]
27 Any such blank risk and needs assessment instrument regularly used in
28 the county for such purpose or a related purpose shall be made available
29 to any person promptly upon written request.
30 § 6. Paragraph (b) of subdivision 3 of section 510.45 of the criminal
31 procedure law is REPEALED.
32 § 7. Paragraph (a) of subdivision 1 of section 530.20 of the criminal
33 procedure law, as amended by section 3 of subpart C of part UU of chap-
34 ter 56 of the laws of 2022, is amended to read as follows:
35 (a) [In cases other than as described in paragraph (b) of this subdi-
36 vision] When the principal is charged with an offense or offenses of
37 less than felony grade only, the court shall [release the] request of
38 the applicable county pre-trial services agency a risk and needs assess-
39 ment be conducted on the eligible principal and the court shall take
40 into account the risk and needs assessment, but such assessment shall
41 not be the sole determinative factor, for the purpose of determining
42 whether such principal should be released pending trial on the princi-
43 pal's own recognizance, [unless the court finds on the record or in
44 writing that release on the principal's own recognizance will not
45 reasonably assure the principal's return to court. In such instances,
46 the court shall release the principal under non-monetary conditions,
47 selecting the least restrictive alternative and conditions that will
48 reasonably assure the principal's return to court] released under non-
49 monetary conditions, or where authorized, fix bail or commit the princi-
50 pal to the custody of the sheriff. The court shall explain its choice of
51 [alternative and] release, release with conditions, bail or remand on
52 the record or in writing. In making its determination, the court must
53 consider and take into account available information about the princi-
54 pal, including:
55 (i) the principal's activities and history;
S. 250 7
1 (ii) if the principal is a defendant, the charges facing the princi-
2 pal;
3 (iii) the principal's criminal conviction record if any;
4 (iv) the principal's record of previous adjudication as a juvenile
5 delinquent, as retained pursuant to section 354.1 of the family court
6 act, or of pending cases where fingerprints are retained pursuant to
7 section 306.1 of such act, or a youthful offender, if any;
8 (v) the principal's previous record with respect to flight to avoid
9 criminal prosecution;
10 (vi) if monetary bail is authorized, according to the restrictions set
11 forth in this title, the principal's individual financial circumstances,
12 and, in cases where bail is authorized, the principal's ability to post
13 bail without posing undue hardship, as well as his or her ability to
14 obtain a secured, unsecured, or partially secured bond;
15 (vii) any violation by the principal of an order of protection issued
16 by any court;
17 (viii) the principal's history and use or possession of a firearm;
18 (ix) whether the charge is alleged to have caused serious harm to an
19 individual or group of individuals; and
20 (x) if the principal is a defendant, in the case of an application for
21 a securing order pending appeal, the merit or lack of merit of the
22 appeal.
23 § 8. Paragraph (b) of subdivision 1 of section 530.20 of the criminal
24 procedure law is REPEALED.
25 § 9. Paragraph (d) of subdivision 1 of section 530.20 of the criminal
26 procedure law, as added by section 16 of part JJJ of chapter 59 of the
27 laws of 2019, is relettered paragraph (b) and amended to read as
28 follows:
29 (b) [Notwithstanding the provisions of paragraphs (a) and (b) of this
30 subdivision, with] With respect to any charge for which bail or remand
31 is not ordered, and for which the court would not [or could not] other-
32 wise require bail or remand, a defendant may, at any time, request that
33 the court set bail in a nominal amount requested by the defendant in the
34 form specified in paragraph (a) of subdivision one of section 520.10 of
35 this title; if the court is satisfied that the request is voluntary, the
36 court shall set such bail in such amount.
37 § 10. The opening paragraph of subdivision 2 of section 530.20 of the
38 criminal procedure law, as amended by section 16 of part JJJ of chapter
39 59 of the laws of 2019, is amended to read as follows:
40 When the defendant is charged, by felony complaint, with a felony, the
41 court [may, in its discretion, order] shall, request of the applicable
42 county pre-trial services agency a risk and needs assessment be
43 conducted on the eligible defendant and the court shall take into
44 account the risk and needs assessment, but such assessment shall not be
45 the sole determinative factor, for the purpose of determining whether
46 such defendant should be released on the defendant's own recognizance,
47 [release] released under non-monetary conditions, or, where authorized,
48 bail or commit the defendant to the custody of the sheriff except as
49 otherwise provided in [subdivision one of this section or] this subdivi-
50 sion:
51 § 11. Section 530.40 of the criminal procedure law, as amended by
52 section 18 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
53 as amended by section 3 of subpart B of part UU of chapter 56 of the
54 laws of 2022, and subdivision 4 as amended by section 4 of part UU of
55 chapter 56 of the laws of 2020, paragraphs (s) and (t) of subdivision 4
56 as amended and paragraph (u) of subdivision 4 as added by section 4 of
S. 250 8
1 subpart B of part UU of chapter 56 of the laws of 2022, is amended to
2 read as follows:
3 § 530.40 Order of recognizance, release under non-monetary conditions or
4 bail; by superior court when action is pending therein.
5 When a criminal action is pending in a superior court, such court,
6 upon application of a defendant, must or may order recognizance or bail
7 as follows:
8 1. When the defendant is charged with an offense or offenses of less
9 than felony grade only, the court must, request of the applicable county
10 pre-trial services agency a risk and needs assessment be conducted on
11 the eligible defendant and the court shall take into account the risk
12 and needs assessment, but such assessment shall not be the sole determi-
13 native factor, for the purpose of determining whether such defendant,
14 unless otherwise provided by law, should be released on an order of
15 recognizance or bail or release under non-monetary conditions [in
16 accordance with this section] or commit the defendant to the custody of
17 the sheriff.
18 2. When the defendant is charged with a felony, the court [may, unless
19 otherwise provided by law in its discretion, order] shall request of
20 the applicable county pre-trial services agency a risk and needs assess-
21 ment be conducted on the eligible defendant and the court shall take
22 into account the risk and needs assessment, but such assessment shall
23 not be the sole determinative factor, for the purpose of determining
24 whether such defendant should be released on the defendant's own recog-
25 nizance, [release] released under non-monetary conditions or, where
26 authorized, bail or commit the defendant to the custody of the sheriff.
27 In any such case in which an indictment (a) has resulted from an order
28 of a local criminal court holding the defendant for the action of the
29 grand jury, or (b) was filed at a time when a felony complaint charging
30 the same conduct was pending in a local criminal court, and in which
31 such local criminal court or a superior court judge has issued an order
32 of recognizance, release under non-monetary conditions or, where author-
33 ized, bail which is still effective, the superior court's order may be
34 in the form of a direction continuing the effectiveness of the previous
35 order.
36 3. [In cases other than as described in subdivision four of this
37 section the court shall release the principal pending trial on the prin-
38 cipal's own recognizance, unless the court finds on the record or in
39 writing that release on the principal's own recognizance will not
40 reasonably assure the principal's return to court. In such instances,
41 the court shall release the principal under non-monetary conditions,
42 selecting the least restrictive alternative and conditions that will
43 reasonably assure the principal's return to court. The court shall
44 explain its choice of alternative and conditions on the record or in
45 writing. In making its determination, the court must consider and take
46 into account available information about the principal, including:
47 (a) the principal's activities and history;
48 (b) if the principal is a defendant, the charges facing the principal;
49 (c) the principal's criminal conviction record if any;
50 (d) the principal's record of previous adjudication as a juvenile
51 delinquent, as retained pursuant to section 354.1 of the family court
52 act, or of pending cases where fingerprints are retained pursuant to
53 section 306.1 of such act, or a youthful offender, if any;
54 (e) the principal's previous record with respect to flight to avoid
55 criminal prosecution;
S. 250 9
1 (f) if monetary bail is authorized, according to the restrictions set
2 forth in this title, the principal's individual financial circumstances,
3 and, in cases where bail is authorized, the principal's ability to post
4 bail without posing undue hardship, as well as his or her ability to
5 obtain a secured, unsecured, or partially secured bond;
6 (g) any violation by the principal of an order of protection issued by
7 any court;
8 (h) the principal's history and use or possession of a firearm;
9 (i) whether the charge is alleged to have caused serious harm to an
10 individual or group of individuals; and
11 (j) if the principal is a defendant, in the case of an application for
12 a securing order pending appeal, the merit or lack of merit of the
13 appeal.
14 4. Where the principal stands charged with a qualifying offense, the
15 court, unless otherwise prohibited by law, may in its discretion release
16 the principal pending trial on the principal's own recognizance or under
17 non-monetary conditions, fix bail, or, where the defendant is charged
18 with a qualifying offense which is a felony, the court may commit the
19 principal to the custody of the sheriff. The court shall explain its
20 choice of release, release with conditions, bail or remand on the record
21 or in writing. A principal stands charged with a qualifying offense for
22 the purposes of this subdivision when he or she stands charged with:
23 (a) a felony enumerated in section 70.02 of the penal law, other than
24 robbery in the second degree as defined in subdivision one of section
25 160.10 of the penal law, provided, however, that burglary in the second
26 degree as defined in subdivision two of section 140.25 of the penal law
27 shall be a qualifying offense only where the defendant is charged with
28 entering the living area of the dwelling;
29 (b) a crime involving witness intimidation under section 215.15 of the
30 penal law;
31 (c) a crime involving witness tampering under section 215.11, 215.12
32 or 215.13 of the penal law;
33 (d) a class A felony defined in the penal law, provided that for class
34 A felonies under article two hundred twenty of such law, only class A-I
35 felonies shall be a qualifying offense;
36 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
37 the penal law, or a felony sex offense defined in section 70.80 of the
38 penal law or a crime involving incest as defined in section 255.25,
39 255.26 or 255.27 of such law, or a misdemeanor defined in article one
40 hundred thirty of such law;
41 (f) conspiracy in the second degree as defined in section 105.15 of
42 the penal law, where the underlying allegation of such charge is that
43 the defendant conspired to commit a class A felony defined in article
44 one hundred twenty-five of the penal law;
45 (g) money laundering in support of terrorism in the first degree as
46 defined in section 470.24 of the penal law; money laundering in support
47 of terrorism in the second degree as defined in section 470.23 of the
48 penal law; money laundering in support of terrorism in the third degree
49 as defined in section 470.22 of the penal law; money laundering in
50 support of terrorism in the fourth degree as defined in section 470.21
51 of the penal law; or a felony crime of terrorism as defined in article
52 four hundred ninety of the penal law, other than the crime defined in
53 section 490.20 of such law;
54 (h) criminal contempt in the second degree as defined in subdivision
55 three of section 215.50 of the penal law, criminal contempt in the first
56 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
S. 250 10
1 the penal law or aggravated criminal contempt as defined in section
2 215.52 of the penal law, and the underlying allegation of such charge of
3 criminal contempt in the second degree, criminal contempt in the first
4 degree or aggravated criminal contempt is that the defendant violated a
5 duly served order of protection where the protected party is a member of
6 the defendant's same family or household as defined in subdivision one
7 of section 530.11 of this article;
8 (i) facilitating a sexual performance by a child with a controlled
9 substance or alcohol as defined in section 263.30 of the penal law, use
10 of a child in a sexual performance as defined in section 263.05 of the
11 penal law or luring a child as defined in subdivision one of section
12 120.70 of the penal law, promoting an obscene sexual performance by a
13 child as defined in section 263.10 of the penal law or promoting a sexu-
14 al performance by a child as defined in section 263.15 of the penal law;
15 (j) any crime that is alleged to have caused the death of another
16 person;
17 (k) criminal obstruction of breathing or blood circulation as defined
18 in section 121.11 of the penal law, strangulation in the second degree
19 as defined in section 121.12 of the penal law or unlawful imprisonment
20 in the first degree as defined in section 135.10 of the penal law, and
21 is alleged to have committed the offense against a member of the defend-
22 ant's same family or household as defined in subdivision one of section
23 530.11 of this article;
24 (l) aggravated vehicular assault as defined in section 120.04-a of the
25 penal law or vehicular assault in the first degree as defined in section
26 120.04 of the penal law;
27 (m) assault in the third degree as defined in section 120.00 of the
28 penal law or arson in the third degree as defined in section 150.10 of
29 the penal law, when such crime is charged as a hate crime as defined in
30 section 485.05 of the penal law;
31 (n) aggravated assault upon a person less than eleven years old as
32 defined in section 120.12 of the penal law or criminal possession of a
33 weapon on school grounds as defined in section 265.01-a of the penal
34 law;
35 (o) grand larceny in the first degree as defined in section 155.42 of
36 the penal law, enterprise corruption as defined in section 460.20 of the
37 penal law, or money laundering in the first degree as defined in section
38 470.20 of the penal law;
39 (p) failure to register as a sex offender pursuant to section one
40 hundred sixty-eight-t of the correction law or endangering the welfare
41 of a child as defined in subdivision one of section 260.10 of the penal
42 law, where the defendant is required to maintain registration under
43 article six-C of the correction law and designated a level three offen-
44 der pursuant to subdivision six of section one hundred sixty-eight-l of
45 the correction law;
46 (q) a crime involving bail jumping under section 215.55, 215.56 or
47 215.57 of the penal law, or a crime involving escaping from custody
48 under section 205.05, 205.10 or 205.15 of the penal law;
49 (r) any felony offense committed by the principal while serving a
50 sentence of probation or while released to post release supervision;
51 (s) a felony, where the defendant qualifies for sentencing on such
52 charge as a persistent felony offender pursuant to section 70.10 of the
53 penal law;
54 (t) any felony or class A misdemeanor involving harm to an identifi-
55 able person or property, or any charge of criminal possession of a
56 firearm as defined in section 265.01-b of the penal law, where such
S. 250 11
1 charge arose from conduct occurring while the defendant was released on
2 his or her own recognizance, released under conditions, or had yet to be
3 arraigned after the issuance of a desk appearance ticket for a separate
4 felony or class A misdemeanor involving harm to an identifiable person
5 or property, or any charge of criminal possession of a firearm as
6 defined in section 265.01-b of the penal law, provided, however, that
7 the prosecutor must show reasonable cause to believe that the defendant
8 committed the instant crime and any underlying crime. For the purposes
9 of this subparagraph, any of the underlying crimes need not be a quali-
10 fying offense as defined in this subdivision. For the purposes of this
11 paragraph, "harm to an identifiable person or property" shall include
12 but not be limited to theft of or damage to property. However, based
13 upon a review of the facts alleged in the accusatory instrument, if the
14 court determines that such theft is negligible and does not appear to be
15 in furtherance of other criminal activity, the principal shall be
16 released on his or her own recognizance or under appropriate non-mone-
17 tary conditions; or
18 (u) criminal possession of a weapon in the third degree as defined in
19 subdivision three of section 265.02 of the penal law or criminal sale of
20 a firearm to a minor as defined in section 265.16 of the penal law.
21 5. Notwithstanding the provisions of subdivisions three and four of
22 this section, with] With respect to any charge for which bail or remand
23 is not ordered, and for which the court would not [or could not] other-
24 wise require bail or remand, a defendant may, at any time, request that
25 the court set bail in a nominal amount requested by the defendant in the
26 form specified in paragraph (a) of subdivision one of section 520.10 of
27 this title; if the court is satisfied that the request is voluntary, the
28 court shall set such bail in such amount.
29 [6.] 4. Notwithstanding the provisions of [subdivisions] subdivision
30 two[, three and four] of this section, a superior court may not order
31 recognizance, release under non-monetary conditions or, where author-
32 ized, bail, or permit a defendant to remain at liberty pursuant to an
33 existing order, after the defendant has been convicted of either: (a) a
34 class A felony or (b) any class B or class C felony as defined in arti-
35 cle one hundred thirty of the penal law committed or attempted to be
36 committed by a person eighteen years of age or older against a person
37 less than eighteen years of age. In either case the court must commit or
38 remand the defendant to the custody of the sheriff.
39 [7.] 5. Notwithstanding the provisions of [subdivisions] subdivision
40 two[, three and four] of this section, a superior court may not order
41 recognizance, release under non-monetary conditions or, where author-
42 ized, bail when the defendant is charged with a felony unless and until
43 the district attorney has had an opportunity to be heard in the matter
44 and such court and counsel for the defendant have been furnished with a
45 report as described in subparagraph (ii) of paragraph (b) of subdivision
46 two of section 530.20 of this article.
47 § 12. This act shall take effect immediately.