Bail Revocation in New York: Modifications and Mandatory Evidentiary Hearings

Bail revocation attorneys versed in New York’s bail laws know that even if a prosecutor seeks to modify your bail or release conditions because of a new felony arrest during the pendency of an older case or, for example, you violated an Order of Protection or willfully and persistently failed to appear at scheduled appearances, the presiding judge must hold a hearing. At this hearing the court must ascertain whether there is reasonable cause to believe you committed a felony or clear and convincing evidence you violated the law as prescribed. Not only is the judge is required to review relevant evidence, but your New York bail hearing lawyer can cross-examine the District Attorney’s witnesses. CPL 530.60(2)(c). Baring the existence of Grand Jury minutes that can be used in lieu of testimony, there is a potentially tremendous benefit to this hearing. Your counsel will have the opportunity to impeach the People’s witnesses, challenge the evidence against you early in the process and create an adverse record for law enforcement.

Potential value aside, the short-term objective is clear – keeping you from being tossed into jail or shackled with far more strict conditions. Simply, having the right counsel who is armed with both experience and knowledge is critically important to your defense now and throughout all of the proceedings of your criminal case.

If you are not in custody during the pendency of your current felony offense and you are arrested or charged with a class “A” felony crime, any degree of Intimidating a Victim or Witness, or a CPL 70.02 violent felony, the prosecution must conduct a revocation hearing within 72 hours. CPL 530.60(2)(a). During this time, a judge can remand you – hold you without bail – thereby preventing your release from custody until if and when prosecutors establish a reasonable cause to believe you committed the new crime. With good cause, a court can grant an additional 72 hours to allow the District Attorney to conduct this hearing or, should you and your counsel deem it beneficial, you can consent to this extra time. CPL 530.60(2)(e).

Assuming you are at liberty while charged with a felony, before a judge sets a more restrictive condition to your current status, he or she must conduct a hearing where the court finds reasonable cause to believe you committed a class "A" felony, a CPL 70.02 defined Violent Felony Offense, or any degree of Intimidating a Victim or Witness. CPL 530.60(2)(a).

If you are not in custody and charged with a non-violent felony, willfully and persistently fail to appear irrespective of the charges, violate a Restraining Order no matter whether it is domestic in nature, or while charged with a misdemeanor or non-criminal violation you are arrested for any degree of Witness Tampering or Intimidating a Victim or Witness, a judge must find clear and convincing evidence you committed one of these acts before adversely modifying your bail. CPL 530.60(2)(b). Unlike certain felony related revocation hearings where the court can remand you, a court may not do so in these matters.

While it should be abundantly clear that an attorney with firsthand knowledge of the law and practical courtroom experience is central to your success at a bail revocation hearing, if a judge determines that either reasonable cause or clear and convincing evidence exists depending on the nature of the case and charges, even if you were previously ineligible for bail after being charged with a Non-Qualified Offense, it can now be set on the old case. In doing so, however, the court must adhere to the same principles throughout the bail statutes and your counsel must ensure he or she does so. That is, the judge must utilize the “least restrictive alternative and condition or conditions that will reasonably assure [your] return to court.” CPL 530.60(d)(ii). Remember, generally speaking, if you “violate” by committing a new misdemeanor while currently facing a misdemeanor, there is no provision to modify the status of your old case.

Whether you are arrested while out on a pending felony or misdemeanor and charged with a new offense, you are alleged to have willfully and persistently failed to appear in court, or you are accused of violating an Order of Protection, before a judge can even consider revoking your bail status, modifying the conditions of your release or setting something more restrictive, your counsel can demand a hearing where the court must determine whether the prosecution can meet the applicable legal standard to allow for a modification. Don’t forego your rights. Don’t merely accept that any arrest or a missed court appearance will trigger such a change.

When faced with the uncertainty of any proceeding in the criminal justice system and knowing that even temporary incarceration pending the outcome of your case can decimate your career, the appearance of your rightful innocence and your mental health as you take the steps to defend yourself, there is no substitute for knowledge, advocacy and experience. No matter where in the process you are, arm yourself with the best defense. Saland Law’s criminal lawyers and former Manhattan prosecutors are ready to make you priority number one.

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