June 5, 2019 \ James Quinn Auricchio, Esq.

When someone is arrested, a court is required to arraign them and issue a “securing order”. A securing order is an order to the person that’s being charged, the defendant, that tells them what the court wants to do to ensure that they will come back to court. The least restrictive securing order is one that simply tells the defendant that she must come back to court when they are scheduled. That’s commonly called release on recognizance. The most restrictive type of securing order is “remand”. In other words, a defendant is held in the custody of the sheriff and no amount of bail can be posted to change that. Remand is rare. More commonly, if a judge has concerns that a defendant will not return to court, the judge will require the defendant pay a bail. Bail is money paid to the Court that will be confiscated by the Court if the defendant does not return to court. If the defendant’s case is resolved without any issues, the bail is returned to the defendant (or whomever posted it for them).

Reform efforts began when research revealed that many people were being held in custody with cash bail, simply because they were unable to post bail in the amount set by the Court. This coupled with increased concerns over the conditions jails, and at least a few notorious cases where people endured prolonged pre-trial incarceration, led to increased momentum for bail reform.

The constitution of the United States requires that the government cannot deprive its citizens of their liberty without due process of the law. Bail set before a conviction is not intended to be punitive, because the Government has no right to punish someone unless they’ve been convicted.

The government is not entitled to detain people simply because they have been charged with a crime, barring specific statutory provisions (laws) to the contrary. In New York, the laws that empowered the Government to keep a person in jail while their case is pending, before a conviction, were over broad and imposed no sanctions or relief to a defendant if they were unlawfully detained.

As a result, bail became punitive measure for misguided judges and a tactical weapon used by over zealous cops and prosecutors to influence the out come of a case. Officers often tell defendants to make things easy, confess, and they will get to go home. A suspect is left to infer that unless they tell the officer what the officer wants to hear, they will go to jail. The coercive effects of incarceration continue through out the case. Most experienced criminal lawyers have encountered at least one case where a defendant gives up their protestation of innocence after being held in custody, because they simply want to get their case over with. As a result in cases in which the Government lacked evidence of their guilt, people have confessed to crimes they did not commit, simply because they could not post the bail. It happens enough to be commonly referred to as “case fatigue” by some experienced defense attorneys.

While this is perhaps the dawning of the age of the progressive prosecutor, the legislature and Governor thought better of changing the law. The changes have been made to both the procedure and substance to be considered by Courts tasked with issuing a securing order.

Even before a judge is involved, the law reduces the number of cases in which bail should be set. The law requires arresting officers to issue an appearance ticket instead of taking a person into custody, when they are charged with something lower than an E felony. Statistically, that is about 66 percent of the arrests made in Erie County last year.

Even if a defendant does not qualify for an appearance ticket, most Courts in the vast majority of cases must proceed from the presumption that the defendant in most cases is entitled to release:

530.20. Securing Order by local criminal court when action is pending therein.  When a criminal action is pending in a local criminal court, such court, upon application of a defendant, must issue a securing order as follows:

(1)     Release the principal pending trial on the principal’s personal recognizance, unless the Court finds on the record that release on recognizance will not reasonably assure the individual’s court attendance. In such instances, the Court will release the individual under non-monetary conditions selecting the least restrictive alternative that will reasonably assure the principal’s court attendance. The Court will support its choice of alternative on the record. 

(2)     Notwithstanding the above, in cases where the People indicated that they intend to move for pretrial detention as set forth in article five hundred forty five (545) of this title, the Court may commit the defendant to the custody of the sheriff or issue a securing order in accordance with article five hundred forty five (545) of this title.

(3)     Notwithstanding the above, in cases where the defendant is facing a charge of a class A felony or it appears that the defendant has two previous felony convictions with the meaning of subdivision one of section 70.07 or 70.20 of the Penal Law; the Court shall commit the defendant to the custody of the sheriff for the county or superior court to make a determination about the securing order within three days.

When attempting to find the least restrictive means, the Court has a new list of criterion to consider:

510.30 Application for securing order; rules of law and criteria controlling determination.

With respect to any principal, the Court in all cases, unless otherwise provided by law, must impose the least restrictive kind and degree of control or restriction that is necessary to secure the principal’s court attendance when required. In determining that matter, the Court must on the basis of available information, consider and take into account:

Information about the principal that is relevant to court appearance, including, but not limited to, the principal’s activities, history and community ties;

If the principal is a defendant the charges facing the principal;

The principal’s criminal record if any; provided that the court must also consider the time that has elapsed since the occurrence of the crim or crimes and the age of the principal at the time of the occurrence of such delinquent or youthful offender conduct;

The principal’s record of previous adjudication as a juvenile delinguent as retained pursuant to section 354.2 of the family court act or of pending cases where fingerprints are retained pursuant to section 306.1 of such act or a youthful offender inf any; provided that the court must also consider the time that has elapsed since the occurrence of the crim or crimes and the age of the principal at the time of the occurrence of such delinquent or youthful offender conduct; 

The principal’s previous record, if any, in responding to court appearances when required or with respect to flight to avoid criminal prosecution;

Where the principal is charged with a crime or crimes against a member or members of the same family or household as that term is defined in subdivision one of section 530.11 of this title the following factors:

Any violation by the principal of an order of protection issued by any court for the protection of a member or members of the same family or household as that term is defined in subdivision on of section 530.11 of this title whether or not such order of protection is currently in effect; and

The principal’s history of use or possession of a firearm;

If the principal is a defendant the weight of the evidence against the principal in the pending criminal action and any other factor indicating probability or improbability of conviction or in the case of any application for securing order [pending appeal, the merit or lack of merit of the appeal; and

If the principal is a defendant, the sentence which may be or has been imposed upon conviction; and

If the principal is a defendant-appellant in a pending appeal form a judgment of conviction, the Court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require a denial of the application regardless of any determination made with respect to the factors specified in this paragraph.

When a court does not release a defendant on recognizance, it used to be up to the defendant to seek a bail reduction. Now, after three days, if a defendant remains in custody, he will be entitled to a hearing before a superior court judge to review the matter…. to be continued.