On January 1, 2020, New York State new laws went into effect which drastically changed the way bail is set. There are some misconceptions about the law on both sides. A lot of politicians and interest groups have utilized scare tactics and sensationalized headlines to try and rollback the law. The real purpose of the new law is to ensure suspects are treated as innocent until proven guilty and to ensure people who cannot afford bail are treated the same as those who can.
The following is information you should be aware of if you, or someone you know, is facing criminal charges:
Mandatory Appearance Tickets
Under the new bail laws, a person charged with a violation, misdemeanor, or class E (the lowest level) felony will receive an appearance ticket to come to court. The suspect will still need to be “booked” – meaning they are photographed and fingerprinted. However, they will not need to spend the night in jail or see a judge to be arraigned immediately. Instead, the police officer will give them a ticket notifying them when they have to appear in court.
What if I don’t appear in Court?
If you intentionally fail to go to court for the date listed on your appearance ticket, the court could issue a warrant which directs the police to arrest you and hold you in jail.
If I get an appearance ticket, do I need an attorney?
YES! An appearance ticket is not the same as a traffic ticket. You have been officially charged with a crime. If you are convicted, you could face jail or prison time and you will have a criminal conviction on your record.
Are there exceptions?
Yes – Higher level felonies (class A – D), escape crimes, sex crimes, domestic crimes, cases where the person’s license will be suspended or revoked, cases in which an order of protection will be issued, if there is an outstanding warrant, if the person has a history of warrants in the past two years, or if the person is in need of immediate mental or medical care. In these cases, the person will be brought before a judge.
Qualifying vs. Non-Qualifying Offenses
Even if you are not eligible for a mandatory appearance ticket, there is a good chance you will not be held on bail. After you go before the judge, if it is a “non-qualifying offense”, then the judge MUST release you or set non-monetary conditions.
What are Qualifying Offenses?
- Any violent felony (except Burglary in the Second Degree or Robbery in the Second Degree aided by another)
- Witness Intimidation
- Class A felonies (except most drug cases)
- Felony AND misdemeanor sex offenses
- Incest
- Certain offenses against a child
- Conspiracy to Commit a Class A felony
- Criminal Contempt (violation of an order of protection)
- Terrorism and Money Laundering in support of Terrorism.
Is bail required on Qualifying Offenses?
NO! Even for qualifying offenses, the judge can release the suspect. The judge is still supposed to consider the “least restrictive means” which will ensure the suspect comes back to court.
Can the Court put me in jail while the case is pending?
Yes, for the following reasons: if the person repeatedly fails to appear for court, if the person violates an order of protection, if the person intimidates or tampers with a witness, if the person commits a felony while free on a felony. The judge could also put you in custody after conviction pending sentencing.
What about Probation or Parole Violations?
The new law did NOT change bail as it relates to probation or parole violations. In most cases, the judge will hold you if there is a pending probation or parole violation. If you have additional charges, it is important your attorney ask the judge to set bail on the other charges so you get credit for the time you are in jail on those charges.
What Factors Determine What the Bail is?
The factors are set forth in the statute:
- Suspect’s history and activities
- The charges they are facing
- Prior criminal convictions
- Prior juvenile delinquent or youthful offender history
- Suspect’s financial situation
- For family offenses, whether an order of protection was violated
- For family offenses, the suspect’s access to firearms
- Other information that relates to suspect’s likelihood of coming back to court