Bail in New York State: Qualified and Non-Qualified Offenses

While it may be somewhat of a shock to judges, prosecutors and criminal defense lawyers alike, bail in New York is a shell of its former self. Now, depending on the crimes charged, bail may no longer even be a consideration at your arraignment. As such, the vast majority of defendants will be released on the own recognizance, aka, ROR’d, or without monetary conditions. For those matters where the accusation involves a Qualified Offense allowing for a custodial securing order at your arraignment, the court must nonetheless consider the least restrictive measure to ensure your return.

Identified in CPL 510.10(4), Qualifying Offenses include:

• Violent Felonies set forth in Penal Law 70.02 other than two specific subsections of Second Degree Robbery, Penal Law 160.10(1) where a defendant is allegedly aided by another person, and Second Degree Burglary, Penal Law 140.25(2), where the property allegedly burglarized is a legally defined “dwelling”.
• Witness Intimidation pursuant to Penal Law 215.15.
• Any degree of Witness Tampering pursuant to Penal Law 215.11, 215.12 and 215.13.
• Any Class “A” felony other than Controlled Substance Crimes codified in Penal Law Article 220. However, Penal Law 220.77, Major Drug Trafficker and Kingpin Statute, is a Qualifying Offense.
• Any felony sex crime or offense defined in Penal Law 70.80, any degree of Incest pursuant to Penal Law 255.25, 255.26 or 255.27, or any misdemeanor sex offense codified in Penal Law Article 130.
• Second Degree Conspiracy, Penal Law 105.15, only if the underlying allegations involve a conspiracy to commit a Class “A” felony listed in Penal Law Article 125.
• First and Second Degree Money Laundering in Support of Terrorism, Penal Law 470.24 and 470.23 respectively, and any crime relating to Penal Law Article 490 Terrorism, other than Making a Terroristic Threat pursuant to Penal Law 490.20.
• Certain crimes involving Criminal Contempt including Second Degree Criminal Contempt, Penal Law 215.50(3), subsections (b), (c) or (d) of First Degree Criminal Contempt, Penal Law 215.51, and Aggravated Criminal Contempt, Penal Law 215.52. However, the basis of these charges must stem from a violation of an Order of Protection, aka, Restraining Order, involving a family member or intimate partner. These Contempt crimes must involve Domestic Violence.
• Facilitating a Sexual Performance of a Child with a Controlled Substance or Alcohol, Penal Law 263.30, Use of a Child in Sexual Performance, Penal Law 263.05, and Luring a Child, Penal Law 120.70.

Despite the above Qualifying Offenses, if you are accused of one of these crimes and arraigned on a felony complaint or indictment, the court must nonetheless release you unless there is a specific and individualized analysis and conclusion that you are is a risk of flight to avoid prosecution. Assuming this determination is made, courts are required to adhere to the least restrictive guideline to ensuring the alleged offender – you – return to court. CPL 510.10(1). Keep in mind that if an offense is a qualified one for the purpose of bail or remand, a judge may, barring a provision preventing such, still set a non-monetary condition of release or release you on your own recognizance. CPL 510.10(4). Your criminal lawyer should aggressively pursue the same. Even where there is a financial requirement, ie., “monetary bail”, judges must examine your specific and individual financial circumstances and your ability to post bail without posing an undue hardship, as well your ability to obtain a secured, unsecured or partial secured bond. CPL 510.30(1)(f).

If a crime is not one that qualifies for the setting of bail, then, by default, it is a Non-Qualified Offense. Pursuant to CPL 510.10(3), a judge “…shall release [a defendant] pending trial on [his or her] own recognizance.” The exception to this rule would occur where the court determines both in writing and on the record of the proceeding that ROR “will not reasonably assure [your] return to court.” Even then, bail cannot be set. The court must release you without a financial condition along with the “…least restrictive alternative and condition that will reasonably assure [your] return to court.” In short, monetary bail is simply not an option for the overwhelming amount of arrests and criminal offenses. You will be released from jail upon your arraignment on a misdemeanor complaint, felony complaint or indictment whether by way of ROR or with other limited and non-monetary terms.

“Fortunate” may not often be a word one thinks of when one faces the prospect of a criminal record, but with the right attorney on your side fighting for your rights, he or she can request that the court decrease and lessen your conditions as a matter of law at a regularly scheduled appearance. CPL 510.20(2)(b). Upon doing so, the presiding judge is mandated to consider such a request to modify your conditions to a less burdensome one. CPL 510.40(3). With the right strategy and preparation to implement the same, what was once an onerous condition of your release may be a thing of the past.

No matter the stage of the criminal justice process, the steps, or missteps, you take can have significant ramifications on both the future of your case and your life. When experience, knowledge and advocacy are needed most, call on the former Manhattan prosecutors and criminal defense team at Saland Law and educate yourself about bail laws in New York to best ensure your greatest likelihood success no matter the accusation.

If you need help with bail related matters, contact us online or call (212) 312-7129 today.