Understanding Bail in New York

Throughout the boroughs of New York City and elsewhere in the state, a judge may decide to set bail or another securing order at your arraignment. However, unlike the days of old where an attorney at your arraignment was left with little weapons at his or her disposal to ward off absurdly high impositions of bail, the playing field has now changed. While the consequences of an arrest, indictment and conviction still remain the same, the current iterations of the laws governing securing orders 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…” CPL 510.30(1). As such, it is critical that when you stand before a judge in any New York State court and are formally advised of the charges you face, your criminal defense attorney ensures that the court does not implement bail merely because prosecutors argue you pose a threat to the public or that your release would endanger the wider community. Simply, each and every judge, no matter the venue or jurisdiction, must adhere to law whether they not they support its principles.

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 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:

1. Your activities and history.
2. The criminal offense(s) and charge(s) you face.
3. Your criminal record solely as it relates to convictions as opposed to arrests.
4. Whether you have previously been adjudicated a Juvenile Delinquent or Youthful Offender.
5. 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.
6. 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.
7. 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.”

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.”

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.” CPL 510.40(3).

Equally important, assuming you are compliant and appeared 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. 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. CPL 510.20.

When a judge slams his gavel down at your arraignment, walking out of court on your own volition is far more satisfying and rewarding than the sound of cell door slamming shut. Never forget you have rights and prosecutors have burdens to meet before a judge can merely incarcerate you or set bail conditions that are unduly restrictive. This is no less true even where a bench warrant is ordered for your failure to return for a scheduled appearance long after your initial arraignment.

Educate yourself. Know that you have a right to seek a minimization and less restrictive release conditions at court appearances as your case winds its way through the criminal process. Implement the strongest defense and one with the greatest likelihood of success. Let the advocacy, knowledge and experience of the criminal lawyers and former Manhattan prosecutors at Saland Law best protect your life today and every day you find yourself mired in the justice system.

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