One of the most important decisions a criminal defendant faces during the criminal justice process is the judges decision on whether to grant bail or remand the defendant.  

The initial decision would dictate whether the defendant has to spend time in pretrial detention while he awaittrial or if the defendant would ultimately be released back into society and get to stay home while they await their trial on their criminal case. 

In addition, it has been said that defendants who are sentenced to be remanded and detained by the court while awaiting trial are more likely to enter a guilty plea.  

Below, our attorneys will explain: 

  1. State Bail in New Yorkand 
  2. Federal Bail (which covers the entirety of the United States.) 

The reason why these topics are going to be covered in separate sections is that the Federal Bail System is much more complex and detailed and in stark contrast to the New York State Bail System – even though both are founded in the 8th Amendment to the United States Constitution. 

The 8th Amendment of the United States Constitution 

The 8th Amendment of the United States Constitution states that our citizens should not be subjected too excessive bailexcessive fines, nor cruel and unusual punishment. Article 1Section 5of the New York State Constitution, takes from this language of the 8th Amendment. 

For many defendants and members of the defense bar, the 8th Amendment is interpreted to mean that defendants are entitled to reasonable bail in an opportunity to be released during the pendency of the case. 

However, the United States Supreme Court addressed the issue of whether the 8th amendment is a blanket grant of bail for all defendants in the U.S. v. Anthony Salerno. 

U.S. v. Anthony Salerno 

The defendant, Anthony Salerno, was an alleged organized crime figure who was charged with multiple counts of violations of the racketeering and enterprise corruption statutes.  It was under this backdrop that the Salerno decision was made. 

Court HoldingThe Court in Salerno held that the 8th amendment does not grant an absolute right to bail.  The court went on to explain that the 8th amendment merely created a right to a reasonable bail if bail is granted to a defendant in a particular case. 

The reasoning in Salerno – which dates back to 19877 – actually defines the everyday experience of many criminal defendants because so much is left to the subjective discretion of trial court judges. 

When we compare the reasoning of the United States Supreme Court in Salerno to the reasoning of the framers of the constitution, we find a strong conflict. 

Why is Salerno in Conflict with the Framers of the Constitution? 

While the court in Salerno interpreted the constitution not to create an absolute right to bail the framers of the constitution was motivated for the inclusion of the 8th amendment based upon the miscarriages of justice and inequality is in detention that they had witnessed under the English judiciary system.  

In an effort to prevent some of the things that they had witnessed under the English judiciary systemnot only did they enact the 8th amendment but, they included the great writ of habeas corpus as an enforcement mechanism to be used for 8th amendment violations. 

Bail Reform in New York State 

Despite the difference that many members of the defense bar have with the Salerno decision – ian attempt to strike its own balance – New York State attempted to correct problems that had occurred from its bail system through the enactment of the New York State Bail Elimination Act of 2019. 

What is the New York State Bail Elimination Act of 2019? 

The New York State Bail Elimination Act of 2019 simply the amended New York State Criminal Procedure Law Section 530.40. 

What is New York State Criminal Procedure Law Section 530.40? 

New York New York State CPLR 530.40 was never intended to be used as a mechanism for pretrial punishment for a criminal defendantnor has the statute ever included a provision that would allow a judge to make the very subjective assessment of whether an individual defendant is a threat to the community or an individual. 

Some look at the threat to the community analysis from a very superficial standpoint.  When viewing the “threat to the community” analysis from a defense attorney’s perspectiveit’s a catchall that generally is heavily balanced either for the defendant or against the defendant based upon the trial judge’s personal perception of the defendantthe defendant’s background, and the particular crimes charged. 

What Will Happen with Bail Reform in 2020? 

While many people celebrated the bail elimination act of 2019 (which basically removed judicial discretion of imposing a monetary bail as a condition of release fodefendants arrested for misdemeanor charges and most nonviolent feloniesthe gains from that act will not survive for a full year in 2020. 

Now, when our nation – for the first time in history – found all of its jurisdictions under state federal and local emergency declarations andstay athome orders, Governor Andrew Cuomo amended CPL-530.40 with new key provisions that will take effect on July 2nd, 2020. 

Under the 2020 revisions, a judge seeking to grant or deny bail is still required to give an explanation on the record for their reasons for granting or denying monetary bail.

It is worth noting at this point thatas always, the New York state bail scheme has not been changed to have an intent of anything other than securing a defendant attendance in court. 

So, the question becomes, if a person had been previously arrested for social distancing violations and is subsequently rearrested for an additional social distancing violation, how does that issue speak to whether the person will continue making their court appearances or not? 

It seems clear that some of the amendments to the statute of New York serve additional purposes beyond securing a defendant’s attendance at future court appearances. 

Governor Cuomo’s Amendment’s to Bail in New York 

How did Governor Andrew Cuomo Amend CPL-530.40 in New York? 

What happened as a part of Governor Andrew Cuomo’s amendment to CPL 530.40 is that fifteen (15) additional felony and misdemeanor crimes are now bail eligible crimes. 

Most importantlybesides the fifteen (15) additional crimes that have been added as being eligible for monetary bailthe new provision makes a persistent felony offender a bail eligible candidate (as well as an individual who has been subjected to arrest on other occasions.) 

Whether on probation parole or not this individual is now an eligible candidate for bail (whether or not his or her prior arrest were for their eligible crimes or not.) 

Below you will find a List of Qualifying Bail Offenses under CPL 530.40 that will be effective on July 2nd, 2020:

List of Qualifying Bail Offenses Under CPL 530.40 

Effective July 2, 2020

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 robbery in the second degree as defined in subdivision one of section 160.10 of the penal law, provided, however, that burglary in the second degree as defined in subdivision two of section 140.25 of the penal law shall be a qualifying offense only where the defendant is charged with entering the living area of the dwelling;

  (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, provided that for class A felonies under article two hundred twenty of such law, only class A-I felonies shall be a qualifying offense;

  (e) a sex trafficking offense defined in section 230.34 or 230.34-a of the penal law, or 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; money laundering in support of terrorism in the third degree as defined in section 470.22 of the penal law; money laundering in support of terrorism in the fourth degree as defined in section 470.21 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;

  (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, promoting an obscene sexual performance by a child as defined in section 263.10 of the penal law or promoting a sexual performance by a child as defined in section 263.15 of the penal law;

  (j) any crime that is alleged to have caused the death of another person;

  (k) criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, strangulation in the second degree as defined in section 121.12 of the penal law or unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, and is alleged to have committed the offense against a member of the defendant’s same family or household as defined in subdivision one of section 530.11 of this article;

  (l) aggravated vehicular assault as defined in section 120.04-a of the penal law or vehicular assault in the first degree as defined in section 120.04 of the penal law;

  (m) assault in the third degree as defined in section 120.00 of the penal law or arson in the third degree as defined in section 150.10 of the penal law, when such crime is charged as a hate crime as defined in section 485.05 of the penal law;

  (n) aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law or criminal possession of a weapon on school grounds as defined in section 265.01-a of the penal law;

  (o) grand larceny in the first degree as defined in section 155.42 of the penal law, enterprise corruption as defined in section 460.20 of the penal law, or money laundering in the first degree as defined in section 470.20 of the penal law;

  (p) failure to register as a sex offender pursuant to section one hundred sixty-eight-t of the correction law or endangering the welfare of a child as defined in subdivision one of section 260.10 of the penal law, where the defendant is required to maintain registration under article six-C of the correction law and designated a level three offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law;

  (q) a crime involving bail jumping under section 215.55, 215.56 or 215.57 of the penal law, or a crime involving escaping from custody under section 205.05, 205.10 or 205.15 of the penal law;

  (r) any felony offense committed by the principal while serving a sentence of probation or while released to post release supervision;

  (s) a felony, where the defendant qualifies for sentencing on such charge as a persistent felony offender pursuant to section 70.10 of the penal law; or

  (t) any felony or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant was released on his or her own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property, provided, however, that the prosecutor must show reasonable cause to believe that the defendant committed the instant crime and any underlying crime. For the purposes of this subparagraph, any of the underlying crimes need not be a qualifying offense as defined in this subdivision. 

How Does New York’s Amended Bail Work? 

Taken into Custody

Under the current and amended bail scheme in New York, a defendant will be taken into custody and eventually interviewed by a member of criminal justice services 

Interview with Criminal Justice Services 

While being interviewed by criminal justice servicesthe individual may be asked to provide: 

  • their first and last name; 
  • date of birth; 
  • marital status; 
  • emergency contacts; 
  • employment history; 
  • address for at least the last five years; and  
  • other information related to the person’s background and character. 

Judges Review 

Criminal justice services will prepare a report that is expected for the judge to use in making a decision on whether to grant or deny bail and what bail would be sufficient when considering an individual defendants’ background history and financial status to ensure that defendants appearance at a future court date. 

How Will the Governor’s Bail Amendment Effect Criminal Defendants in New York? 

The unpredictable part of the days ahead will be the judges interpretations of the new amendmentsas well as their interpretations of the legislature’s intent. 

This will be extremely hard to glean in light of the fact that the April 2020 amendment to the New York Bail Statue was not subjected to the regular legislative debate process andmore importantlypublic hearing process. 

The bail statute in New York and the operation of the bail system is, unfortunately, one of the things that find defendants unable to retain counsel on their behalf at a disadvantage and results in those defendants (many times) being incarcerated and unable to pay the fines that are imposed. 

How Does the Bail System Disadvantage Defendants Who Are Unable to Retain Counsel? 

What I mean by that is that a defendant who retains counsel usually presents himself or herself to the attorney or a family member acts on their behalf. 

That family member is usually asked to provide proof of employment, proof of addressand a full background summary of the individual’s role in his or her householdas well as any other information that the family may have been able to glean from the defendants friends or associates 

Retained counsel then usually takes the time (between the defendant’s arrest an arraignmentto doublecheck the information provided and strengthen any possible bail arguments that are intended to be made at the arraignment. 

A defendant who is unable to retain counsel usually meets his or her attorney for the first time thirty (30) minutes or less before they are to be arraigned.  Many family members have not had the luxury of spending hours in the attorney’s office or on the telephone prior to the arraignment in order to provide them with information. 

Sothe attorney – who has just met the defendant for the first time and had very limited communication with the defendant’s family and/or friends – is put at a disadvantage.   

More importantly, this puts the defendant at a higher risk of receiving a higher bail that he or she may not be able to pay. 

Can a Defendant Get Their Bail Modified? 

Once bail is issued in a criminal casethe bail will only be increased or modified based upon a change in circumstances. 

Courts have not been willing to consider a lack of the ability of counsel to obtain information prior to the arraignment as a sufficient change in circumstances to warrant a modification of the bail conditions. 

So, even if counsel is retained after the arraignment, it is sometimes an uphill battle having the bail conditions modified.  This has resulted in many defendants lingering in New York City detention facilities includes Rikers Island. 

Another bail situation that creates a disadvantage or is, unfortunately, more of a disadvantage for individuals who are unable to retain counsel, is the provision that allows for bail pending the outcome of an appeal, CPL 460.50. 

What is an Application for Bail Pending Appeal? – CPL 460.50 

CPL 460.50though very rarely discussed, allows for a defendant convicted of a crime to make an application for bail pending the outcome of his or her appeal.  

However, the reason why a defendant’s ability (or inability) to retain counsel puts them at a disadvantage for making this application for bail pending appeal is that, ethically, trial councils last obligation to a criminal defendant after sentencing is the filing of a notice of appeal (if the defendant so request.) 

What is Required to File an Application for Bail Pending Appeal? 

In order to file an application for bail pending appeala defendant must already have been sentenced and filed a notice of appeal.  In addition, defendant’s counsel will have to research appellate issues that may require a reversal of the conviction (or at least makes the appeal non-frivolous) in order to include that information in an application for bail pending appeal. 

How Does this Disadvantage a Client Without Retained Counsel? 

The individual without retained counsel (and who has filed his or her notice of appeal) is usually in State prison serving their sentence by the time they are assigned counsel from one of the legal aid societies or detention appeal bureaus.  

Then, the newly assigned attorney (who may not receive the transcripts of the trial anywhere from a year to two years after his or her assignment to the case) is not in a position to make an application for bail pending appeal because they are unaware of any issues that may even exist that would make an appeal have merit. 

What Happens Once the Monetary Bail is Posted? 

In many cases, once the monetary bail is posted, the proceeds will be subjected to what’s called a bail source or bail surety hearing which is covered by CPL 520.30. 

What is a Bail Source or Bail Surety Hearing? – CPL 520.30 

A bail source hearing or surety hearing allows the judge to inquire regarding: 

  • the reliability of the person or persons posting the cash bail; 
  • the source of the funds; as well as, 
  • their background and character.  

In short, what that means is a person has a cash bail imposed and the family and friends decide to post the bail through a bail bonds agency or directly through the courts clerk. 

What Happens Once a Defendant’s Bail is Posted? 

Once thbail is postedthe defendant will not be released.  The individuals who pledged the financial portions (as well as the signature portions) of the bail would then be required to submit: 

  • IRS-W2; 
  • tax returns; 
  • recent pay stubs; 
  • valid identification; and  
  • bank statements  

These documents are needed in order to prove that the source of the funds is not the proceeds of criminal conduct.  The defense counsel will collect the documents from the defendants family and friends and review the documents. 

Once defense counsel has reviewed the document (and if a bail bond agency was usedthe bail bond agent and council will reach out to the district attorney’s office and transmit the documents over to the district attorney’s office andif necessary, advocate for the District Attorney to consent that the sureties are qualified. 

What Happens When the District Attorney Consents to the Bail? 

If the District Attorney consentsthe prosecutor will notify the judge that they have reviewed the documents and interviewed the sureties and find them to be satisfactory – at which point the judge will allow the defendant’s release. 

What Happens if the District Attorney Does Not Consent to the Bail? 

In the instances where the prosecutor, for any reason, decides not to consent to the qualifications of the sureties (or where the sureties are not comfortable with being interviewed by the prosecutor either via telephone or in the prosecutor’s office without counsel), a bail source hearing is then set.  

What Happens at a Bail Source Hearing? 

The bail source hearing is held in front of the trial judge and the sureties are placed under oath and put on the witness stand.  The sureties are questioned initially by defense counsel regarding issues that prove that they are reliable upstanding citizens, with a relationship and interest in the defendant andmost importantly, that the proceeds are not the source of criminal conduct.  

At the bail source hearing, the inquiry of whether pledged funds are the source of criminal conduct will not be limited to the instant criminal conduct that the defendant is charged with. 

What If the Prosecution Suspects Bail Funds are the Source of Criminal Conduct? 

In one casewe were forced to conduct a bail source hearing where our clients had originally been charged in a limited felony indictment and posted bail.  Eventually, the client re-indicted in a more expansive indictment.  It was at that time that the prosecutor becomes adamant that our client could not use funds previously pledged for bail (nor any of their own fundsbecause of the allegations against them. 

In this particular instance, we were forced to fly the defendant’s family member from Michigan to New York to testify in a bail source hearing. 

What came out from that hearing was not that the prosecutor believed that the original funds pledged for bail were criminal proceeds, or that the defendant’s entire fortune was tainted. 

Instead, the prosecutor had likely hoped to use it as an opportunity to deny the defendants an opportunity to pledge bail and have them sent to Rikers Island – which would have likely resulted in a guilty plea and the ending of a highly contentious case.  

We mention this to say that it is very important that defense counsel learn every aspect of the bail procedure and be ready to defend his client at every step it away in order to ensure that his client is released on bail and keep the prosecution from possibly being able to use the defendant’s inability to post bail as an advantage to obtain a guilty plea in a case.

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If you or someone you love is looking for an attorney to represent them in a federal or criminal case, call us now at (212) 736-3900.