What Bail Conditions Can Be Set in New York?

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In 2020, New York introduced bail reform, which eliminated cash bail in approximately 90% of all cases pending in New York State criminal court. Thus, codifying which bail conditions judges can set on criminal cases. It is estimated that because most cases are no longer eligible for bail, the jail populations have been reduced by 40%.

New York’s new bail guidelines are located in Section 510 of the New York Criminal Procedure Law. Under CPL Section 510.10, judges are required release individuals on their own recognizance, unless the Court makes an “individualized determination” that the individual poses a risk of flight. In that situation, the judge must “select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court.” Importantly, the Judge is required to explain the choice of release, release with conditions, bail or remand on the record or in writing.

What are the Different Bail Condition Options on Criminal Cases?

In New York State Court, the judges have wide discretion on what sort of bail conditions of release to impose on someone at criminal court arraignment. The options are (from least restrictive to most restrictive):

  • Release on recognizance,
  • Non-monetary conditions,
  • Pre-Trial Supervision,
  • Electronic Monitoring,
  • Cash Bail.

What is Release on Recognizance?

Release on recognizance is the least-restrictive of bail conditions that the Court can impose. No bail or bond is required to be posted to assure the individual’s appearance for Court. Rather, the individual is released on the promise that they appear in Court for all the scheduled court dates. There is no paperwork to fill out when you are released on your own recognizance. Instead, the judge usually issues a warning that bail may be set in the future if the individual fails to show up.

What Are Non-Monetary Conditions?

Non-monetary conditions are set forth in CPL 510. 10(3). Under CPL 510.10(3), when the Court determines that releasing someone on their own recognizance will not reasonably assure that the person will show up to Court, then the Judge must set non-monetary conditions to ensure their attendance for the next court appearance. Non-monetary conditions include:

  • Contact or check-ins with a pre-trial agency,
  • Travel restrictions,
  • Prohibition on possession of firearms or other dangerous weapons.

What is Pre-Trial Supervision?

If the Court determines that neither release on recognizance or non-monetary conditions can assure someone’s return to Court, then the next least restrictive means of ensuring someone’s attendance is pre-trial supervision. This provision is codified in CPL 500.10(3-a). Conditions of pre-trial supervision can include:

  • Contact with a pretrial services agency,
  • Abiding by reasonable, specified restrictions on travel that are reasonably related to an actual risk of flight from the jurisdiction,
  • Surrendering of the passport,
  • Refraining from possessing a firearm, destructive device or other dangerous weapon,
  • Being placed on reasonable pretrial supervision with a pretrial services agency,
  • Refraining from associating with individuals who are connected to the case, including victims, witnesses, or co-defendants,
  • Participating in programming through pre-trial services agency, including counseling, treatment, and intimate partner violence intervention programs,
  • Making diligent efforts to maintain employment, housing, or enrollment in school or educational programming;
  • Abiding by an order of protection issued by the court.

Importantly, the principal cannot be required to pay anything toward the cost of their pre-trial supervision.

What is Electronic Monitoring?

If the Court determines that neither release on recognizance, non-monetary conditions nor pre-trial supervision will be successful in assuring someone’s return to Court, the next least restrictive means of securing an individual’s appearance is electronic monitoring. Electronic monitoring is the most restrictive of bail conditions that does not involve the posting of cash bail. This provision is codified in CPL 510.40(4).

Electronic Monitoring is not widely used in New York criminal cases, as the criminal justice system is yet to get electronic monitoring in place. Under the statute, electronic monitoring may be conducted only by a public entity under the supervision and control of a county or municipality under the contract of county, municipality or a non-profit entity under contract to the county, municipality or the state.

How Long Can Electronic Monitoring Be Imposed For?

Under CPL 510.40(4)(d), electronic monitoring can only be imposed for up to 60 days. After the expiration of the 60 day period, the Court must revisit the question of whether an individual needs to be on electronic monitoring. Importantly, the statute provides that both the defense attorney and the prosecutor must be given an opportunity to be heard regarding the extension of electronic monitoring past 60 days.

What is Cash Bail?

Cash bail is the most restrictive of all bail conditions on New York criminal cases. Under the New York State bail reform, criminal charges are divided into “bail qualifying offenses” and “bail non-qualifying offenses.” Judges have the ability to set cash bail on bail qualifying offenses. Judges do not have the ability to set cash bail on bail non-qualifying offenses. The bail eligible offenses are briefly explained below.

Which Cases Are Eligible for Bail?

The following criminal charges are eligible for bail:

  • Operating as a Major Drug Trafficker (PL 220.77),
  • Felony Sex Offenses and Incest (PL 255.25, PL 255.26 and Sex Offenses as defined in Article 130),
  • Felony Criminal Contempt,
  • Conspiracy to Commit Murder (PL 105.15),
  • Money Laundering in Support of Terrorism (PL 470.23, PL 470.24),
  • Specific Offenses Against Children (PL 263.30, PL 263.05, PL 120.70(1)),
  • Robbery in the Second Degree (PL 160.10(1)),
  • Burglary in the Second Degree (PL 140.25(2)),
  • All other violent felony offenses (as defined in PL 70.02, including violent felony sex offenses),
  • Class “A” felonies (excluding drug offenses).

Which Cases Are Not Eligible for Bail?

The following criminal charges are not eligible for bail:

  • Misdemeanors (with a few exceptions),
  • Misdemeanor Domestic Violence Offenses,
  • Misdemeanor Sex Offenses (as defined in Penal Law Article 130),
  • Misdemeanor Criminal Contempt charges,
  • Felony Drug charges (with a few exceptions),
  • Non-violent felonies (with a few exceptions).

Contact Us Regarding Your Case

If you have an arraignment coming up, or are trying to figure out what sort of bail package you need to come up with to get your loved one out of prison, please contact us to schedule your initial consultation.