2019 New York Laws
CPL - Criminal Procedure
Part 3 - Special Proceedings and Miscellaneous Procedures
Title P - Procedures for Securing Attendance at Criminal Actions and Proceedings of Defendants and Witnesses Under Control of Court--Recognizance, Bail
Article 530 - Orders of Recognizance or Bail With Respect to Defendants in Criminal Actions and Proceedings--When and by What Courts Authorized
530.40 - Order of Recognizance, Release Under Non-Monetary Conditions or Bail; by Superior Court When Action Is Pending Therein.

Universal Citation:
NY Crim Pro L § 530.40 (2019)
Learn more This media-neutral citation is based on the American Association of Law Libraries Universal Citation Guide and is not necessarily the official citation.
* § 530.40 Order  of recognizance or bail; by superior court when action
             is pending therein.
  When a criminal action is pending in a  superior  court,  such  court,
upon  application of a defendant, must or may order recognizance or bail
as follows:
  1. When the defendant is charged with an offense or offenses  of  less
than felony grade only, the court must order recognizance or bail.
  2.  When the defendant is charged with a felony, the court may, in its
discretion, order recognizance or bail. In any such  case  in  which  an
indictment  (a)  has  resulted  from  an order of a local criminal court
holding the defendant for the action of the grand jury, or (b) was filed
at a time when a felony complaint charging the same conduct was  pending
in  a  local criminal court, and in which such local criminal court or a
superior court judge has issued an order of recognizance or  bail  which
is  still  effective, the superior court's order may be in the form of a
direction continuing the effectiveness of the previous order.
  3. Notwithstanding the provisions of subdivision two, a superior court
may not order recognizance or bail, or permit a defendant to  remain  at
liberty  pursuant  to  an existing order, after he has been convicted of
either: (a) a class A felony or (b)  any  class  B  or  class  C  felony
defined  in  article  one  hundred  thirty of the penal law committed or
attempted to be committed by a person eighteen years  of  age  or  older
against  a  person  less  than eighteen years of age. In either case the
court must commit or remand the defendant to the custody of the sheriff.
  4. Notwithstanding the provisions of subdivision two, a superior court
may not order recognizance or bail when the defendant is charged with  a
felony  unless and until the district attorney has had an opportunity to
be heard in the matter and such court has been furnished with  a  report
as described in subparagraph (ii) of paragraph (b) of subdivision two of
section 530.20.
  * NB Effective until January 1, 2020
* § 530.40 Order  of recognizance, release under non-monetary conditions
             or bail; by superior court when action is pending therein.
  When a criminal action is pending in a  superior  court,  such  court,
upon  application of a defendant, must or may order recognizance or bail
as follows:
  1. When the defendant is charged with an offense or offenses  of  less
than  felony  grade  only,  the court must, unless otherwise provided by
law, order recognizance or  release  under  non-monetary  conditions  in
accordance with this section.
  2.  When the defendant is charged with a felony, the court may, unless
otherwise provided by law in its discretion, order recognizance, release
under non-monetary conditions or, where authorized, bail.  In  any  such
case  in  which  an indictment (a) has resulted from an order of a local
criminal court holding the defendant for the action of the  grand  jury,
or  (b)  was  filed  at a time when a felony complaint charging the same
conduct was pending in a local criminal court, and in which  such  local
criminal  court  or  a  superior  court  judge  has  issued  an order of
recognizance,  release   under   non-monetary   conditions   or,   where
authorized,  bail  which  is still effective, the superior court's order
may be in the form of a direction continuing the  effectiveness  of  the
previous order.
  3.  In  cases  other  than  as  described  in subdivision four of this
section the court shall release  the  principal  pending  trial  on  the
principal's own recognizance, unless the court finds on the record or in
writing  that  release  on  the  principal's  own  recognizance will not
reasonably assure the principal's return to court.  In  such  instances,
the  court  shall  release  the principal under non-monetary conditions,

selecting the least restrictive alternative  and  conditions  that  will
reasonably  assure  the  principal's  return  to  court. The court shall
explain its choice of alternative and conditions on  the  record  or  in
writing.
  4.  Where  the principal stands charged with a qualifying offense, the
court, unless otherwise prohibited by law, may in its discretion release
the principal pending trial on the principal's own recognizance or under
non-monetary conditions, fix bail, or, where the  defendant  is  charged
with  a  qualifying  offense which is a felony, the court may commit the
principal to the custody of the sheriff. The  court  shall  explain  its
choice of release, release with conditions, bail or remand on the record
or  in writing. A principal stands charged with a qualifying offense for
the purposes of this subdivision when he or she stands charged with:

(a) a felony enumerated in section 70.02 of the penal law, other than burglary in the second degree as defined in subdivision two of section 140.25 of the penal law or robbery in the second degree as defined in subdivision one of section 160.10 of the penal law;

(b) a crime involving witness intimidation under section 215.15 of the penal law;

(c) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;

(d) a class A felony defined in the penal law, other than in article two hundred twenty of such law with the exception of section 220.77 of such law;

(e) a felony sex offense defined in section 70.80 of the penal law or a crime involving incest as defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined in article one hundred thirty of such law;

(f) conspiracy in the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such charge is that the defendant conspired to commit a class A felony defined in article one hundred twenty-five of the penal law;

(g) money laundering in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in section 470.23 of the penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law;

(h) criminal contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of section 215.51 of the penal law or aggravated criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of the defendant's same family or household as defined in subdivision one of section 530.11 of this article; or

(i) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law, use of a child in a sexual performance as defined in section 263.05 of the penal law or luring a child as defined in subdivision one of section 120.70 of the penal law. 5. Notwithstanding the provisions of subdivisions three and four of this section, with respect to any charge for which bail or remand is not ordered, and for which the court would not or could not otherwise require bail or remand, a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant in the form specified in paragraph (a) of subdivision one of section 520.10 of this title; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount. 6. Notwithstanding the provisions of subdivisions two, three and four of this section, a superior court may not order recognizance, release under non-monetary conditions or, where authorized, bail, or permit a defendant to remain at liberty pursuant to an existing order, after the defendant has been convicted of either: (a) a class A felony or (b) any class B or class C felony as defined in article one hundred thirty of the penal law committed or attempted to be committed by a person eighteen years of age or older against a person less than eighteen years of age. In either case the court must commit or remand the defendant to the custody of the sheriff. 7. Notwithstanding the provisions of subdivisions two, three and four of this section, a superior court may not order recognizance, release under non-monetary conditions or, where authorized, bail when the defendant is charged with a felony unless and until the district attorney has had an opportunity to be heard in the matter and such court and counsel for the defendant have been furnished with a report as described in subparagraph (ii) of paragraph (b) of subdivision two of section 530.20 of this article. * NB Effective January 1, 2020

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