Crime, courts addressed in New York State Budget

Various aspects of the recently passed New York State Budget address issues related to crime and the courts. They include:

Bail Reform. The Budget expands the number of offenses for which bail may be considered. The Budget also directs the court to consider the following list of factors when setting bail:

• the defendant’s activities and history;
• the charges against the defendant;
• past criminal convictions;
• any previous violation of an order of protection;
• a defendant’s potential flight risk;
• a defendant’s ability to post bail without undue hardship;
• a defendant’s history of use or possession of a firearm; and
• whether the charge is alleged to have caused “serious harm” to an individual or group of individuals.

Discovery Reform. District Attorneys are no longer required to provide automatic discovery for cases involving:

• a simplified information charging traffic infraction; or
• an information charging one or more petty offenses defined by a village, town, city, or county municipal code that do not carry a statutorily authorized sentence of imprisonment (defendants may still file a motion for disclosure of evidence in such cases).

In addition, prosecutors will be allowed to file a supplemental certificate of compliance for delayed disclosure of discovery materials.

Violent Crime Initiatives. In addition to establishing an Office for Gun Violence Protection, the Budget includes a variety of program funding purporting to address what the legislature considers “gun violence,” including among others:

• $18.2 million for the Gun Involved Violence Elimination (GIVE) initiative;
• $13.1 million to expand the use of Community Stabilization Units that partner State Troopers with local law enforcement agencies;
• $21 million for community-based gun violence response programs (SNUG);
• $25 million for the Securing Communities Against Hate Crimes (SCAHC) program;
• $10 million in new funding for pretrial services to help divert people from unnecessary detention while also keeping communities safe; and
• $20 million in new funding for crime reduction programming in those communities most impacted by gun violence

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More on the New York State budget can be found here.

Summary of Changes to Bail Reform Law

On April 3, 2020, changes were made to the bail laws in New York State, as part of the state budget.

There are substantial changes to conditions of release and an expansion of qualifying offenses for which a person may be detained on bail, effective in 90 days (July 3, 2020). Some of the changes are briefly summarized here and include:

• stay away orders expanded allowing court discretion and the ability to order individuals to stay away from and not associate with witnesses and co-defendants;  •  additional restrictions on travel and the ability of the court to order relinquishment of passport; 

• placement into pretrial services for mandatory programming, including counseling, treatment, and intimate partner violence intervention programs; 

• a court can remove a person under Mental Hygiene Law section 9.43;
• court can require “diligent efforts” to maintain employment, housing, enrollment in school or educational programs;
• expand conditions on stay away orders with consideration for “safety of victim” and may add specific conditions at the request of the complaining witness; and
•  the expansion of electronic monitoring, allowing municipalities to contract with private companies for monitoring equipment and other items.
 

The list of qualifying offenses has now been expanded to include certain misdemeanors, and non-violent and violent offenses.  Also included was a provision that a person forfeits their right to get court notification if they refuse to provide contact information.

New York courts and officials prepare for implementation of bail and discovery reforms. New resources available.

With the discovery and bail reform laws taking effect January 1, 2020, judges, attorneys and other court officers have new resources to help them prepare for and comply with the new procedure:

• New York's Discovery Reform Law: A Bench Book for Judges serves as a guide to the many aspects of the reform such as the prosecutor’s discovery obligations, the defendant’s reciprocal discovery to prosecution, timing requirements, protective orders, and trial readiness.
• New York's Bail Reform Law: A Bench Book for Judges provides information about the new law and gives attorneys notice on information upon which judges are likely to be relying.

In addition, the Queens District Attorney's Office has compiled a list of those crimes for which bail no longer will be an option.

For more on discovery reform laws, click here.   For more on the bail reform laws, click here.

Cuomo's bail reform plan causes controversy

Officials and others weigh in on Governor Cuomo's bail reform plan

As part of his renewed push to reform the criminal justice system, Gov. Andrew Cuomo is proposing to eliminate cash bail for minor offenses.

Some on the law enforcement side said the proposal is not a well thought out plan, but others see it as a way to level the playing field for people accused of minor crimes.

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While not entirely against it, Defense Attorney Robert King of Robert King Law Firm admits the plan isn't foolproof. “There’s too many times that judges are setting too high of bail. There’s too many times where trials are postponed too long. I think the governor's heart is certainly in the right place,” said King. “The law is not black-and-white, so to say this is what you have to do all the time there’s going to be times where it’s inappropriate.”

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Gates Police Chief Jim VanBrederode said without bail suspects won't have a reason to come back to court and that could delay a case, and add to the backlog that already exists.

According to VanBrederode, there are nearly 830 outstanding warrants in Gates along and many date back a decade. “Justice delayed is justice denied, because behind every crime there is a victim. It's really not fair to the victim when the cases end up at a standstill,” he said. “It's going to create a problem with the criminal justice system; it's going to slow the system down even more and it's just going to create a bigger backlog in our opinion.”

In at least one other state, a similar bail plan backfired on the defendants:

Last year Maryland's courts approved changes to the state's bail system, instructing judges not to deny defendants the possibily of release if they were too poor to afford a cash bail demand. The intent was that defendants be jailed prior to trial only if they were flight risks or a danger to the community, not simply because they didn't have enough money.

Unfortunately, at least in Baltimore, the plan is backfiring. WBAL-TV, the local NBC affiliate, reports that the number of people detained in jail is rising, even as the number of arrests is dropping. Comparing March 2017 to March 2018, the station found that the average number of people jailed each day jumped 31 percent, from 655 to 856...

What's happening is easy to explain: Instead of making cash bail affordable, Baltimore's judges are choosing not to grant it at all in many cases where they previously would have.

The above article also touches upon the idea that eliminating cash bail for minor offenses could constitute an another "unfunded mandate," forcing counties to expand pretrial services and monitoring programs.

Courts Must Consider Firearm Use or Possession and Certain Protection Order Violations When Making Bail Decisions in Domestic Cases.

From the Office of Probation and Correctional Alternatives:

CPL 510.30 was revised to require criminal courts to consider an arrested individual’s history of use or possession of firearms, and any violation of an order of protection issued by any court for the protection of a member or members of the same family or household as such term is defined in CPL 530.11(1), whether or not the order is currently in effect, when considering release on recognizance or setting bail requirements for those charged with a crime or crimes against a family or household member.

New York Increases Penalties for Repeat Domestic Abusers

New York State has enacted new penalties for repeat domestic abusers, including tougher standards for bail pending trial.

The law was signed on Thursday (October 25).  It creates the crime of “Aggravated Family Offense.”  Under the law defendants who commit certain offenses against family members and have a previous conviction for doing so within the past five years can be charged with a Class E felony, punishable by up to four years in prison.  The law also expands the definition of “Aggravated Harassment in the Second Degree” to include when a defendant, with intent to harass, annoy, threaten or alarm, causes physical injury to an individual, or to a family or household member of that individual.

The new law also requires judges to consider various risk factors, including access to firearms and previous violations of orders of protection, when setting bail for people accused of a family offense.

For more on the new law and its requirements click here.

New law to help low-income defendants make bail: charities may now post misdemeanor bonds

New York State enacted legislation today (July 18, 2012) that allows the creation of charitable organizations which could post up to $2,000 in bail for low-income defendants charged with misdemeanor crimes.

The law allows a new type of entity, charitable bail organizations, to function with fewer requirements but still under the oversight and regulation of the Department of Financial Services. Previously, organizations that posted bail on behalf of a defendant had to meet the state law requirements designed to regulate for-profit corporations engaged full-time in the bail bond business.

Charitable bond organizations will be required to register as a 501(c) (3) organization and may not charge a premium or fee for their services.

The law takes effect in 90 days.

More on the new law can be found here.