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A05265 Summary:

BILL NOA05265
 
SAME ASNo Same As
 
SPONSORReilly
 
COSPNSRBlankenbush, Ra, Walsh, Palmesano
 
MLTSPNSR
 
Amd §§510.10, 530.20, 530.40, 510.30, 245.10, 510.50 & 150.20, CP L
 
Permits judicial discretion based on dangerousness when issuing a securing order and allows for limited pre-trial detention upon such a determination; extends the time period for discovery from fifteen to forty-five days; permits the immediate issuance of a bench warrant for failure to appear for certain principals charged with hate crimes; places restrictions on when appearance tickets may be issued.
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A05265 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5265
 
SPONSOR: Reilly
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to permitting judicial discretion based on dangerousness when issuing a securing order, extending the time period for discovery, permits the immediate issuance of a bench warrant for failure to appear for certain princi- pals, and places restrictions on when appearance tickets may be issued   PURPOSE: To provide judicial discretion based on dangerousness of an offender when issuing a securing order, extend the discovery period, permit imme- diate bench warrants for failure to appear for hate crime and places restrictions on the issuance of desk appearance tickets.   SUMMARY OF PROVISIONS: Section 1. Amends the criminal procedure law to allow court justices the discretion to decide based off whether a defendant is a flight risk or a danger to the community when it comes to re-appearing to court.Section 2 and 3. Amends the criminal procedure law states that the court must release the defendant on their own recognizance unless the court finds a reason not to based off Section 1.Section 4. Amends the criminal proce- dure law to outline that if a defendant is not released on their own recognizance that the court must impose the least restrictive kind and degree of control or restriction that is necessary to secure the defend- ant's reappearance in court. Section 5. Amends the criminal procedure law to outline the duties and obligations of the prosecution regarding changes made by this bill. Section 6. Amends the criminal procedure law regarding the enforcement of securing order.Section 7. Amends criminal procedure laws and part JJJ of chapter 59 of the laws of 2019 to allow officers to not issue an appearance ticket if an individual has a pend- ing case for the same offense with the previous six months and if the individual has been convicted of the same offense within the previous two years, allowing the officer to arrest these individuals without a warrant for an offense other than a class A,B, C or D felony or a violation of section.130.25, 130.40, 205.10, 205.17, 205.19, 215.56 or 265.55 of the penal law.Section 8. The effective date.   JUSTIFICATION: New York City is experiencing a record-setting spike in crime being committed by violent repeat offenders. This is no doubt a result of the State Legislature's misguided and irresponsible passage of criminal justice reform measures, mainly the cashless bail provision, in 2019. This legislation would permit judicial discretion based on dangerousness when issuing a securing order, extend the discovery period, permit imme- diate bench warrants for failure to appear for hate crimes, and places restrictions on the issuance of desk appearance tickets.   PRIOR LEGISLATIVE HISTORY: Reintroduction.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Immediately.
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A05265 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5265
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 12, 2021
                                       ___________
 
        Introduced by M. of A. REILLY -- read once and referred to the Committee
          on Codes
 
        AN  ACT  to  amend the criminal procedure law, in relation to permitting
          judicial discretion based on dangerousness  when  issuing  a  securing
          order,  extending the time period for discovery, permits the immediate
          issuance of a bench warrant for failure to appear for certain  princi-
          pals, and places restrictions on when appearance tickets may be issued
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivisions 1 and 3 of  section  510.10  of  the  criminal
     2  procedure  law,  subdivision  1 as amended and subdivision 3 as added by
     3  section 2 of part JJJ of chapter 59 of the laws of 2019, are amended  to
     4  read as follows:
     5    1.  When  a  principal,  whose  future  court attendance at a criminal
     6  action or proceeding is or may be required, comes under the control of a
     7  court, such court shall, in accordance with this title,  by  a  securing
     8  order release the principal on the principal's own recognizance, release
     9  the  principal  under non-monetary conditions, or, where authorized, fix
    10  bail or commit the principal to the custody of the sheriff. In all  such
    11  cases,  except  where  another  type  of  securing  order is shown to be
    12  required by law, the court shall release the principal pending trial  on
    13  the  principal's  own  recognizance,  unless  it is demonstrated and the
    14  court makes an individualized determination that the principal  poses  a
    15  risk of flight to avoid prosecution or that the principal poses a danger
    16  to  a person or the community. If such a finding is made, the court must
    17  select the least restrictive alternative  and  condition  or  conditions
    18  that  will reasonably assure the principal's return to court.  The court
    19  shall explain its choice of release, release with  conditions,  bail  or
    20  remand on the record [or] and in writing.
    21    3.  In  cases  other  than  as  described  in subdivision four of this
    22  section the court shall release the principal pending trial on the prin-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08924-01-1

        A. 5265                             2
 
     1  cipal's own recognizance, unless the court finds on the record [or]  and
     2  in writing that:
     3    (a)  release  on  the principal's own recognizance will not reasonably
     4  assure the principal's return to court. In  such  instances,  the  court
     5  shall release the principal under non-monetary conditions, selecting the
     6  least restrictive alternative and conditions that will reasonably assure
     7  the  principal's  return to court. The court shall explain its choice of
     8  alternative and conditions on the record [or] and in writing; or
     9    (b) the principal poses a danger to a person or the community. In such
    10  instances, the court may in its discretion release the principal pending
    11  trial on the principal's own recognizance or under  non-monetary  condi-
    12  tions  or  commit the principal to the custody of the sheriff, selecting
    13  the least restrictive alternative and conditions  that  will  reasonably
    14  assure  the  safety  of  such  person or the community. A securing order
    15  committing the principal to the custody of the sheriff shall be  limited
    16  to  a  duration of ninety days where the principal stands charged with a
    17  misdemeanor or one  hundred  eighty  days  where  the  principal  stands
    18  charged  with a felony. Where a principal is committed to the custody of
    19  the sheriff, the prosecutor may make a motion to extend the duration  of
    20  such custody beyond the limits imposed pursuant to this paragraph, where
    21  such  extension  is  appropriate  in the interests of justice. The court
    22  shall explain its choice of alternative and conditions on the record and
    23  in writing.
    24    § 2. Paragraph (a) of subdivision 1 of section 530.20 of the  criminal
    25  procedure  law,  as added by section 16 of part JJJ of chapter 59 of the
    26  laws of 2019, is amended to read as follows:
    27    (a) In cases other than as described in paragraph (b) of this subdivi-
    28  sion the court shall release the principal pending trial on the  princi-
    29  pal's own recognizance, unless the court finds on the record [or] and in
    30  writing that:
    31    (i)  release  on  the principal's own recognizance will not reasonably
    32  assure the principal's return to court. In  such  instances,  the  court
    33  shall release the principal under non-monetary conditions, selecting the
    34  least restrictive alternative and conditions that will reasonably assure
    35  the  principal's  return to court. The court shall explain its choice of
    36  alternative and conditions on the record [or] and in writing; or
    37    (ii) the principal poses a danger to a person  or  the  community.  In
    38  such  instances,  the  court may in its discretion release the principal
    39  pending trial on the principal's own recognizance or under  non-monetary
    40  conditions  or  commit  the  principal  to  the  custody of the sheriff,
    41  selecting the least restrictive alternative  and  conditions  that  will
    42  reasonably assure the safety of such person or the community. A securing
    43  order  committing  the  principal to the custody of the sheriff shall be
    44  limited to a duration of ninety days where the principal stands  charged
    45  with a misdemeanor or one hundred eighty days where the principal stands
    46  charged  with a felony. Where a principal is committed to the custody of
    47  the sheriff, the prosecutor may make a motion to extend the duration  of
    48  such  custody  beyond  the limits imposed pursuant to this subparagraph,
    49  where such extension is appropriate in the  interests  of  justice.  The
    50  court  shall  explain  its  choice  of alternative and conditions on the
    51  record and in writing.
    52    § 3. Subdivision 3 of section 530.40 of the criminal procedure law, as
    53  amended by section 18 of part JJJ of chapter 59 of the laws of 2019,  is
    54  amended to read as follows:
    55    3.  In  cases  other  than  as  described  in subdivision four of this
    56  section the court shall release the principal pending trial on the prin-

        A. 5265                             3
 
     1  cipal's own recognizance, unless the court finds on the record [or]  and
     2  in writing that:
     3    (a)  release  on  the principal's own recognizance will not reasonably
     4  assure the principal's return to court. In  such  instances,  the  court
     5  shall release the principal under non-monetary conditions, selecting the
     6  least restrictive alternative and conditions that will reasonably assure
     7  the  principal's  return to court. The court shall explain its choice of
     8  alternative and conditions on the record [or] and in writing; or
     9    (b) the principal poses a danger to a person or the community. In such
    10  instances, the court may in its discretion release the principal pending
    11  trial on the principal's own recognizance or under  non-monetary  condi-
    12  tions  or  commit the principal to the custody of the sheriff, selecting
    13  the least restrictive alternative and conditions  that  will  reasonably
    14  assure  the  safety  of  such  person or the community. A securing order
    15  committing the principal to the custody of the sheriff shall be  limited
    16  to  a  duration of ninety days where the principal stands charged with a
    17  misdemeanor or one  hundred  eighty  days  where  the  principal  stands
    18  charged  with a felony. Where a principal is committed to the custody of
    19  the sheriff, the prosecutor may make a motion to extend the duration  of
    20  such custody beyond the limits imposed pursuant to this paragraph, where
    21  such  extension  is  appropriate  in the interests of justice. The court
    22  shall explain its choice of alternative and conditions on the record and
    23  in writing.
    24    § 4. Subdivision 1 of section 510.30 of the criminal procedure law, as
    25  amended by section 5 of part JJJ of chapter 59 of the laws of  2019,  is
    26  amended to read as follows:
    27    1.  With  respect  to  any  principal,  the court in all cases, unless
    28  otherwise provided by law, must impose the least  restrictive  kind  and
    29  degree of control or restriction that is necessary to secure the princi-
    30  pal's  return  to  court  when required. In determining that matter, the
    31  court must, on the basis of available  information,  consider  and  take
    32  into  account  information  about  the principal that is relevant to the
    33  principal's return to court, including:
    34    (a) The principal's activities and history, including but not  limited
    35  to, whether such principal has a history of violence;
    36    (b) If the principal is a defendant, the charges facing the principal,
    37  including  but  not  limited  to,  the use or threatened use of physical
    38  force by such principal;
    39    (c) The principal's criminal conviction record if any;
    40    (d) The principal's record of  previous  adjudication  as  a  juvenile
    41  delinquent,  as  retained  pursuant to section 354.2 of the family court
    42  act, or, of pending cases where fingerprints are  retained  pursuant  to
    43  section 306.1 of such act, or a youthful offender, if any;
    44    (e)  The  principal's  previous record with respect to flight to avoid
    45  criminal prosecution;
    46    (f) If monetary bail is authorized, according to the restrictions  set
    47  forth in this title, the principal's individual financial circumstances,
    48  and,  in cases where bail is authorized, the principal's ability to post
    49  bail without posing undue hardship, as well as his  or  her  ability  to
    50  obtain a secured, unsecured, or partially secured bond;
    51    (g)  Where  the  principal is charged with a crime or crimes against a
    52  member or members of the same  family  or  household  as  that  term  is
    53  defined  in subdivision one of section 530.11 of this title, the follow-
    54  ing factors:
    55    (i) any violation by the principal of an order of protection issued by
    56  any court for the protection of a member or members of the  same  family

        A. 5265                             4
 
     1  or  household  as  that  term  is  defined in subdivision one of section
     2  530.11 of this title,  whether  or  not  such  order  of  protection  is
     3  currently in effect; and
     4    (ii) the principal's history of use or possession of a firearm; [and]
     5    (h) If the principal is a defendant, in the case of an application for
     6  a  securing  order  pending  appeal,  the  merit or lack of merit of the
     7  appeal[.]; and
     8    (i) The nature and seriousness of the danger to any  other  person  or
     9  the  community that would be posed by the principal's release, if appli-
    10  cable.
    11    § 5. Subparagraph (iii) of paragraph (a) and paragraph (b) of subdivi-
    12  sion 1 of section 245.10 of the  criminal  procedure  law,  subparagraph
    13  (iii) of paragraph (a) as amended by section 1 of part HHH of chapter 56
    14  of  the laws of 2020 and paragraph (b) as added by section 2 of part LLL
    15  of chapter 59 of the laws of 2019, are amended to read as follows:
    16    (iii) Notwithstanding the timelines contained in the opening paragraph
    17  of this paragraph, the prosecutor's discovery obligation under  subdivi-
    18  sion one of section 245.20 of this article shall be performed as soon as
    19  practicable,  but  not  later  than [fifteen] forty-five days before the
    20  trial of a simplified information charging a  traffic  infraction  under
    21  the  vehicle  and traffic law, or by an information charging one or more
    22  petty offenses as defined by the municipal  code  of  a  village,  town,
    23  city,  or county, that do not carry a statutorily authorized sentence of
    24  imprisonment, and where the defendant stands charged  before  the  court
    25  with no crime or offense, provided however that nothing in this subpara-
    26  graph  shall  prevent a defendant from filing a motion for disclosure of
    27  such items and information under subdivision one of such section  245.20
    28  of this article at an earlier date.
    29    (b)  The  prosecution  shall  perform its supplemental discovery obli-
    30  gations under subdivision three of section 245.20  of  this  article  as
    31  soon  as  practicable  but  not later than [fifteen] forty-five calendar
    32  days prior to the first scheduled trial date.
    33    § 6. Section 510.50 of the  criminal  procedure  law,  as  amended  by
    34  section  9  of part JJJ of chapter 59 of the laws of 2019, is amended to
    35  read as follows:
    36  § 510.50 Enforcement of securing order.
    37    1. When the attendance of a principal confined in the custody  of  the
    38  sheriff is required at the criminal action or proceeding at a particular
    39  time  and  place,  the court may compel such attendance by directing the
    40  sheriff to produce the principal at such time and place. If the  princi-
    41  pal  is  at  liberty on the principal's own recognizance or non-monetary
    42  conditions or on bail, the principal's attendance  may  be  achieved  or
    43  compelled by various methods, including notification and the issuance of
    44  a  bench warrant, prescribed by law in provisions governing such matters
    45  with respect to the particular kind of action or proceeding involved.
    46    2. Except when the principal is charged with  a  new  crime  while  at
    47  liberty  or  when  a  principal  fails  to  appear for a scheduled court
    48  appearance involving a charge of a hate  crime  as  defined  in  section
    49  485.05  of the penal law, absent relevant, credible evidence demonstrat-
    50  ing that a principal's failure to appear for a scheduled  court  appear-
    51  ance  was  willful,  the  court,  prior to issuing a bench warrant for a
    52  failure to appear for a scheduled court  appearance,  shall  provide  at
    53  least forty-eight hours notice to the principal or the principal's coun-
    54  sel that the principal is required to appear, in order to give the prin-
    55  cipal an opportunity to appear voluntarily.

        A. 5265                             5
 
     1    §  7.  Paragraph  (a)  of  subdivision  1 and subdivision 2 of section
     2  150.20 of the criminal procedure law, paragraph (a) of subdivision 1  as
     3  amended  by  section  1-a of part JJJ of chapter 59 of the laws of 2019,
     4  subdivision 2 as amended by chapter 550 of the laws of 1987, are amended
     5  and a new paragraph (c) is added to subdivision 1 to read as follows:
     6    (a) Whenever a police officer is authorized pursuant to section 140.10
     7  of  this title to arrest a person without a warrant for an offense other
     8  than a class A, B, C or D felony  or  a  violation  of  section  130.25,
     9  130.40,  205.10, 205.17, 205.19 [or], 215.56 or 265.55 of the penal law,
    10  he shall, except as set out in [paragraph] paragraphs  (b)  and  (c)  of
    11  this  subdivision,  subject  to the provisions of subdivisions three and
    12  four of section 150.40 of this title, instead issue to  and  serve  upon
    13  such person an appearance ticket.
    14    (c) An officer shall not issue an appearance ticket if:
    15    (i)  the  person  has  a  pending case for the same offense within the
    16  previous six months;
    17    (ii) the person has been convicted of  the  same  offense  within  the
    18  previous two years.
    19    2.  (a)  Whenever  a  police  officer  has arrested a person without a
    20  warrant for an offense other than a class A, B,  C  or  D  felony  or  a
    21  violation of section 130.25, 130.40, 205.10, 205.17, 205.19 [or], 215.56
    22  or 265.55 of the penal law pursuant to section 140.10, or (b) whenever a
    23  peace officer, who is not authorized by law to issue an appearance tick-
    24  et, has arrested a person for an offense other than a class A, B, C or D
    25  felony  or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
    26  [or], 215.56 or 265.55 of the penal law pursuant to section 140.25,  and
    27  has  requested  a  police  officer to issue and serve upon such arrested
    28  person an appearance ticket pursuant  to  subdivision  four  of  section
    29  140.27,  or (c) whenever a person has been arrested for an offense other
    30  than a class A, B, C or D felony  or  a  violation  of  section  130.25,
    31  130.40,  205.10,  205.17, 205.19 [or], 215.56 or 265.55 of the penal law
    32  and has been delivered to the custody of an appropriate  police  officer
    33  pursuant to section 140.40, such police officer may, instead of bringing
    34  such person before a local criminal court and promptly filing or causing
    35  the arresting peace officer or arresting person to file a local criminal
    36  court  accusatory  instrument  therewith,  issue  to and serve upon such
    37  person an appearance ticket. The issuance and service of  an  appearance
    38  ticket  under  such  circumstances  may be conditioned upon a deposit of
    39  pre-arraignment bail, as provided in section 150.30.
    40    § 8. This act shall take effect immediately.
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