Under Criminal Procedure Law §§ 510.10 through 510.50, judges generally set “securing orders” or terms of a defendant’s release from custody at defendant’s arraignment. New York State’s bail laws have undergone significant reforms in recent years, particularly with the 2019 Bail Reform Law, which took effect in January 2020. Only certain crimes are eligible for bail conditions which result in a defendant being held in custody until cash or a bond is posted. For example, violent felonies defined under Penal Law §70.02, such as Robbery, Assault, or Rape, and certain non-violent felonies, such as witness intimidation and tampering. Since 2020, many crimes which historically resulted in New Yorkers’ pre-trial detention are now ineligible for bail. In other words, a judge generally must set a “non-monetary” condition for a defendant’s return to court. This would include nearly all misdemeanor crimes, such as Assault in the Third Degree, P.L. §120.00, and even most felony drug charges, such as Criminal Sale of a Controlled Substance in the Third Degree, P.L. §220.39. There are some situations in which judges can set bail on misdemeanor cases, such as when a defendant is accused of committing a crime while at liberty when he or she has a separate, pending criminal case.
Here’s a breakdown of the current bail laws:
- Presumption of Release: For most misdemeanors and non-violent felonies, judges are required to release defendants on their own recognizance or under the least restrictive conditions necessary to ensure their return to court. Cash bail is generally prohibited for most misdemeanors and non-violent felonies. Defendants in these cases are typically released without monetary conditions, but sometimes will be required to report to a social work agency called CASES under “Supervised Relase.”
- Qualifying Offenses: Cash bail or remand (pretrial detention) is allowed for certain serious crimes, including violent felonies, sex offenses, and cases involving significant risk to public safety.
- Types of Bail:
- Cash Bail is paid to the clerk’s office in the courthouse in which a defendant is arraigned, or can sometimes be paid online. The person posting this form of bail will have this money returned to them at the conclusion of the case so long as the defendant returns to court. Cash bail can also be paid by credit card if authorized by a judge.
- Partially Secured Bonds are a method by which family or friends of the defendant only need to pay a portion of the total bond amount as a fee – generally 10 percent – with the court clerk directly, rather than a bail bond company. Like cash bail, partially secured bond fee payments will be returned to the poster so long as the defendant returns to court and the case concludes.
- Insurance Company Bonds usually require similar percentage fees in order for a bail bond company to post the bond. Depending on the bond company, they may also require an additional payment as collateral, or require additional guarantors for the posting of a bond, especially when the charges are serious. The fees paid will not be returned to the guarantor at the conclusion of the case, even if the defendant makes all of their court appearances.
- Discretion: Depending on the crimes charged, New York judges in Criminal and Supreme Court can set a variety of conditions to ensure a defendant’s return to court for future dates. Even on charges ineligible for bail, Courts may still impose numerous conditions on any criminal defendant, such as restrictions on travel, pre-trial supervision by a state agency, bans on contacting witnesses/victims, participation in programs, or in rare cases, electronic monitoring by means such as an ankle bracelet.
If you or a loved one are charged with a bail-eligible offense, the Assistant District Attorneys appearing in court will almost certainly ask for some amount of bail. The attorney for the Defendant will make the best arguments they can against this, but ultimately it is the judge’s decision. This is typically set in three different forms.
You can look up the exact conditions of bail for an incarcerated criminal defendant in New York City by visiting this page and searching by First and Last Names.
The Center for Court Innovation publishes a detailed and comprehensive chart addressing the circumstances of when bail may or may not be relevant to certain criminal charges.