Jail, Bail and Recongizance

Understanding Bail in State Courts

If you have been charged with a violation of New York State Law and are brought before a judge in a town, village or city court, the Judge may require you to post bail to ensure your return to court.

At your first court appearance, the Judge will make a determination whether bail should be set, or whether you should be incarcerated in lieu of bail.  Your first court appearance is generally called an “arraignment”.  The judge will review and read the charges against you, advise you of your rights, and then determine whether you should be held in custody while the case is pending. The Judge may set bail, which means you must deposit funds with the Court while your case is pending. If you fail to appear in Court as required, you forfeit the bail.  Bail can be set in a variety of forms.  The most common forms of bail are cash and surety.  When you post cash bail, you must deposit the entire amount, and upon completion of your case, you will receive a refund, less 3% for Court fees.  When you purchase a surety bond from a bail-bonds agency, you buy an insurance policy that pays the Court the cash value of the bond if you do not return to court and the insurance company cannot return you to court through its own investigation.  Regardless, when you purchase a bond, which usually costs about 10% of the actual bail, you do not receive any money back.  A judge may also agree to release you “on your own recognizance”.  This means that no bail will be set, but you will be released while the case is pending.  Judges may set conditions on your release which may include supervision by a pretrial release agency, submission to drug and alcohol treatment, and a requirement that you remain arrest free while out.

It is best to make this initial appearance with an attorney, when possible.  Appearing with an attorney tells the Court that you are taking the matter seriously, and will allow you to make a more compelling argument on bail.  In some cases, like DWI, the Court may make a number of decisions that can impact your case, making the appearance of counsel even more important.

The purpose of bail is to provide some assurance that you will return to court.  The Court will examine a number of factors to make this determination, including the following:

 Your character, reputation, habits, and mental condition. The Judge’s determination on your reputation,  character, habits and mental condition will be highly subjective, and based upon the information provided by the Officer in reports and other documents filed with the Court, as well as your demeanor and appearance as you stand before him.
    Your employment and financial resources.  If you are employed and likely to lose your job as a result of being detained, a Judge may be more likely to release you or set a bail that is lower.  More experienced judges will be mindful of the fact that you will have to retain an attorney and will keep that expense in mind when making a determination on any bail amount.
 Your family ties and length of his residence in the community.  When you are charged with a crime, the officer will file legal documents with the Court, and normally include a number of reports that will provide your current address.  Your criminal history, which is also filed with the Court, will give the judge an idea of where you have been arrested in the past, which may prompt him to ask how long you’ve lived in his jurisdiction.  If you’re in from out of town, a judge will be more likely to set bail.
Your criminal record.  The law makes your criminal history relevant to the determination of bail, in part because the more substantial your history, the more severe your sentence will be if convicted.  It is generally believed that the more severe the consequences of a conviction, the less likely it is that you will return to court.  Your criminal history will be presented to the Court after the arresting officer requests it from the Division of Criminal Justice Services in Albany.  It should list only your past criminal convictions and any warrants issued as a result of your failure to appear in Court.   It may also contain information on arrests that did not result in a conviction.
 Any prior adjudication as a youthful offender etc. Because the law does not consider these “adjudication’s” criminal convictions, the law specifically includes these adjudication’s as one of the factors to be considered.  Again, if you have a prior history including these adjudications, it will impact any sentence, just like your criminal record.
Any previous record of responding to court appearances, or flight from prior prosecution.  This factor is commonly cited as a basis to set a high bail.  It is presumed that your criminal record accurately recorded any warrants issued in your name, and if a Court has had to issue a warrant due to your failure to appear in the past, it will provide the Court with a logically reasonable basis to fear you will not return in this case.
The weight of the evidence against you in the pending criminal action or any other factor indicating the probability or improbability of a conviction.  While you are presumed innocent, judges will review the charges against you to determine how likely a conviction is.   They will frequently rely upon police reports, even notes from the Arresting Officer when making this evaluation.  The problem is that judges rarely scrutinize these reports to the degree necessary to make a qualified decision on the likelihood of a conviction.

If you were arrested for a felony, your next court appearance will be scheduled within 144 hours for a “Preliminary” or “Felony” hearing.  If you remain in custody, either because you could not post bail, or no bail was set, then you have the right to a hearing where the Prosecutor must present evidence in your case to establish that there is probable cause to believe you committed the charged offenses, or any other offense which may apply.  Because the burden of proof is substantially lower than at trial, it is rare for a defendant to be released following one of these hearings.  If the Prosecution cannot or will not run a hearing within 144 hours of your arrest, then you will be released.

If you fail to appear for court as required, a judge may revisit the issue of bail, either by issuing a warrant for your arrest, or by addressing the issue at a subsequent court appearance.  So it’s important to keep careful track of your court appearances.  It is best to contact your attorney two to three days before your next court appearance, or call the Court to confirm the date and time of your required appearance.

One last thing to keep in mind, and it’s really important:  If you are detained in jail, any and all phone calls you make will be recorded.  For that reason, it is absolutely crucial to avoid discussing your case over the phone.  Prosecutors may request a recording of your calls by making a simple request to the jail, and it is common for these calls to provide damning evidence in your case.