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.
* § 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
