What Crimes Still Keep New Yorkers Held on Bail?

As of May 9, 2022, the bail laws of New York State have changed once again following the 2020 reforms that drastically reduced the offenses for which a judge can set bail or order a defendant held in jail before trial.

2022 Changes in the NY State Budget Bills

Under Senate Bill S80006C and Assembly Bill A90006C, which amended Criminal Procedure Law Section 510.10 and 510.20, cash bail was extended to “any felony or class A misdemeanor involving harm to an identifiable person or property.” This could include a misdemeanor as simple as theft of someone’s property. However, the amendments gives judges discretion to find that in cases where a theft was “negligible,” and did not “appear to be in furtherance of other criminal activity,” that a defendant should be released or some other condition should be set. It remains to be seen how the courts will implement this, but it’s likely to be used to distinguish between say, pattern robberies and one-off crimes of opportunity.

Additionally, the E felony Criminal Possession of a Firearm PL 265.01-b was added to be bail eligible in cases where a defendant committed the crime while at liberty on open criminal charges, where a prosecutor can prove at a preliminary hearing that there was probable cause that the defendant committed both the firearm offense and the underlying offense.

Finally, possession of defaced weapons (i.e. filed off firearm serial numbers) and sales of firearms to minors were added to the bail eligible offense list.

The Bail Eligible Offenses, 2020 Reform Edition

All Class A felonies (excluding the drug offenses under article 220 of the Penal Law), violent felony offenses defined under PL 70.02, Robbery in the Second Degree PL 160.10(1), Burglary in the Second Degree PL 140.25(2), Offenses Against Children PL 263.30, PL 263.05, PL 120.70(1), Money Laundering in Support of Terrorism PL 470.23, PL 470.24, felony sex offenses and incest, felony criminal contempt, Conspiracy to Commit Murder, PL 105.15, and certain non-violent felonies (for example, witness tampering, and witness intimidation).

In what cases are judges prevented from setting bail?

Generally, most misdemeanors (but not sex offenses and domestic violence charges); felony drug charges (aside from Operating as a Major Trafficker, PL 220.77; and non-violent felony charges (with exceptions noted above).

Courts may still impose numerous conditions on a 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 are the defendant in a bail-eligible prosecution, speak with a qualified criminal defense attorney about advocating for the least restrictive condition in your case.