OVERVIEW OF THE BEGINNING STAGES OF A CRIMINAL CASE

OVERVIEW OF THE BEGINNING STAGESOF A CRIMINAL CASE

Relevant Statutes Regarding Arraignment and Bail Issues

Hon. Michael J. Yavinsky

New Judges’ Training - 2013Judicial Institute - White Plains

January 4, 2013

Relevant Statutes Regarding Arraignment and Bail Issues

Table of Contents

CPL § 100.05 Commencement of action; in general . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CPL § 170.10 Arraignment upon information, simplified traffic information, prosecutor's information or misdemeanor complaint; defendant's presence, defendant's rights, court's instructions and bail matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CPL § 180.10 Proceedings upon felony complaint; arraignment; defendant's rights, court's instructions and bail matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CPL § 170.70 Release of defendant upon failure to replace misdemeanor complaint by information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CPL § 180.80 Proceedings upon felony complaint; release of defendant from custody upon failure of timely disposition . . . . . . . . . . . . . . . . . . . . . . . . 14

CPL § 500.10 Recognizance, bail and commitment; definitions of terms . . . . . . . . . 16

CPL § 510.10 Securing order; when required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CPL § 510.15 Commitment of principal under sixteen . . . . . . . . . . . . . . . . . . . . . . . 21

CPL § 510.20 Application for recognizance or bail; making and determination thereof in general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CPL § 510.30 Application for recognizance or bail; rules of law and criteria controlling determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CPL § 510.40 Application for recognizance or bail; determination thereof, form of securing order and execution thereof . . . . . . . . . . . . . . . . . . . . . . . . . 29

CPL § 510.50 Enforcement of securing order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CPL § 520.10 Bail and bail bonds; fixing of bail and authorized forms thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CPL § 520.15 Bail and bail bonds; posting of cash bail . . . . . . . . . . . . . . . . . . . . . . . 33

CPL § 520.20 Bail and bail bonds; posting of bail bond and justifying affidavits; form and contents thereof . . . . . . . . . . . . . . . . . . . . . . . . 35

CPL § 520.30 Bail and bail bonds; examination as to sufficiency . . . . . . . . . . . . . . . 38

CPL § 520.40 Transfer of cash bail from local criminal court to superior court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CPL § 530.10 Order of recognizance or bail; in general . . . . . . . . . . . . . . . . . . . . . . 41

CPL § 530.11 Procedures for family offense matters . . . . . . . . . . . . . . . . . . . . . . . . .42

CPL § 530.12 Protection for victims of family offenses . . . . . . . . . . . . . . . . . . . . . . . 49

CPL § 530.13 Protection of victims of crimes, other than family offenses . . . . . . . . 58

CPL § 530.14 Suspension and revocation of a license to carry, possess, repair or dispose of a firearm or firearms pursuant to section 400.00 of the penal law and ineligibility for such a license; order to surrender firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

CPL § 530.20 Order of recognizance or bail; by local criminal court when action is pending therein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

CPL § 530.30 Order of recognizance or bail; by superior court judge when action is pending in local criminal court . . . . . . . . . . . . . . . . . . . . . . . . . 72

CPL § 530.40 Order of recognizance or bail; by superior court when action is pending therein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

CPL § 530.45 Order of recognizance or bail; after conviction and before sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

CPL § 530.50 Order of recognizance or bail; during pendency of appeal . . . . . . . . 79

CPL § 530.60 Order of recognizance or bail; revocation thereof . . . . . . . . . . . . . . . 80

CPL § 530.70 Order of recognizance or bail; bench warrant . . . . . . . . . . . . . . . . . . 84

CPL § 530.80 Order of recognizance or bail; surrender of defendant . . . . . . . . . . . 87

CPL § 540.10 Forfeiture of bail; generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

CPL § 540.20 Forfeiture of bail; certain local criminal courts . . . . . . . . . . . . . . . . . 90

CPL § 540.30 Remission of forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

APPENDIX A [People ex rel McManus v Horn, 18 NY3d 660 (2012)] . . . . . . . . . . . . . . . 94

§ 100.05 Commencement of action; in general

A criminal action is commenced by the filing of an accusatory instrument with a criminal court, andif more than one such instrument is filed in the course of the same criminal action, such actioncommences when the first of such instruments is filed. The only way in which a criminal action canbe commenced in a superior court is by the filing therewith by a grand jury of an indictment againsta defendant who has never been held by a local criminal court for the action of such grand jury withrespect to any charge contained in such indictment. Otherwise, a criminal action can be commencedonly in a local criminal court, by the filing therewith of a local criminal court accusatoryinstrument, namely:

1. An information; or

2. A simplified information; or

3. A prosecutor's information; or

4. A misdemeanor complaint; or

5. A felony complaint.

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PRACTICE COMMENTARIES2004 Main Volume

by Peter Preiser

This section serves as an introduction to article 100, which deals with the functions and requisites oflocal criminal court accusatory instruments. It opens with repetition of the provision for identifyingthe point of commencement of a criminal action as set forth earlier in CPL § 1.20[17] and thenproceeds to instruct that-except for actions initiated by grand jury indictment filed in a superiorcourt-the only way to commence a criminal action is by filing a local criminal court accusatoryinstrument in a local criminal court. The five different types of accusatory instrument authorized forthat purpose (as listed in the section) are defined in CPL § 1.20 subdivisions four through eight andagain, in more detail, in CPL § 100.10.

Identifying the point of commencement of an action is important for several reasons. Mostsignificantly, calculations for statute of limitations and speedy trial purposes (see CPL Article 30)are determined by reference to that date. See e.g., People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d937, 406 N.E.2d 793 (1980). Also, New York constitutional rights accrue at the time ofcommencement as defined in the CPL. For example, a defendant's New York right to counselautomatically attaches when the first accusatory instrument is filed (People v. Settles, 46 N.Y.2d154, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978]), even though that instrument is simply utilized forthe purpose of obtaining an arrest warrant and must be replaced by an indictment or information forformal prosecution of the offense (People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400N.E.2d 1344 [1980]).

Note that time is calculated from the filing of the first accusatory instrument in the action,irrespective of whether or not that instrument must be replaced by another in order to prosecute -e.g., where an action is commenced by a misdemeanor or felony complaint and then prosecuted aseither a misdemeanor or a felony on the basis of a subsequently filed information, indictment orsuperior court information, the filing of the complaint and not the subsequent filing of theinformation or indictment marks commencement. People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d793, 492 N.E.2d 1209 (1986).

In some situations commencement of the action will be related back to the first accusatoryinstrument filed even though that instrument was dismissed and there was an hiatus between thedismissal and the filing of a new instrument-e.g., speedy trial, CPL § 30.30 (see People v. Osgood,52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980]) and New York right to counsel (cf.,People v. Osgood, supra, 52 N.Y.2d at 45, n2).

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§ 170.10 Arraignment upon information, simplified traffic information,prosecutor's information or misdemeanor complaint; defendant's presence,defendant's rights, court's instructions and bail matters

1. Following the filing with a local criminal court of an information, a simplified information, aprosecutor's information or a misdemeanor complaint, the defendant must be arraigned thereon. Thedefendant must appear personally at such arraignment except under the following circumstances:

(a) In any case where a simplified information is filed and a procedure is provided by law which isapplicable to all offenses charged in such simplified information and, if followed, would dispensewith an arraignment or personal appearance of the defendant, nothing contained in this sectionaffects the validity of such procedure or requires such personal appearance;

(b) In any case in which the defendant's appearance is required by a summons or an appearanceticket, the court in its discretion may, for good cause shown, permit the defendant to appear bycounsel instead of in person.

2. Upon any arraignment at which the defendant is personally present, the court must immediatelyinform him, or cause him to be informed in its presence, of the charge or charges against him andmust furnish him with a copy of the accusatory instrument.

3. The defendant has the right to the aid of counsel at the arraignment and at every subsequent stageof the action. If he appears upon such arraignment without counsel, he has the following rights:

(a) To an adjournment for the purpose of obtaining counsel; and

(b) To communicate, free of charge, by letter or by telephone provided by the law enforcementfacility where the defendant is held to a phone number located in the United States, or Puerto Rico,for the purposes of obtaining counsel and informing a relative or friend that he or she has beencharged with an offense; and

(c) To have counsel assigned by the court if he is financially unable to obtain the same; except thatthis paragraph does not apply where the accusatory instrument charges a traffic infraction orinfractions only.

4. Except as provided in subdivision five, the court must inform the defendant:

(a) Of his rights as prescribed in subdivision three; and the court must not only accord himopportunity to exercise such rights but must itself take such affirmative action as is necessary toeffectuate them; and

(b) Where a traffic infraction or a misdemeanor relating to traffic is charged, that a judgment ofconviction for such offense would in addition to subjecting the defendant to the sentence providedtherefor render his license to drive a motor vehicle and his certificate of registration subject tosuspension and revocation as prescribed by law and that a plea of guilty to such offense constitutesa conviction thereof to the same extent as a verdict of guilty after trial; and

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(c) Where the accusatory instrument is a simplified traffic information, that the defendant has aright to have a supporting deposition filed, as provided in section 100.25; and

(d) Where the accusatory instrument is a misdemeanor complaint, that the defendant may not beprosecuted thereon or required to enter a plea thereto unless he consents to the same, and that in theabsence of such consent such misdemeanor complaint will for prosecution purposes have to bereplaced and superseded by an information; and

(e) Where an information, a simplified information, a prosecutor's information, a misdemeanorcomplaint, a felony complaint or an indictment charges harassment in the second degree, as definedin section 240.26 of the penal law, if there is a judgment of conviction for such offense and suchoffense is determined to have been committed against a member of the same family or household asthe defendant, as defined in subdivision one of section 530.11 of this chapter, the record of suchconviction shall be accessible for law enforcement purposes and not sealed, as specified inparagraph (a) and subparagraph (vi) of paragraph (d) of subdivision one of section 160.55 of thistitle; and

5. In any case in which a defendant has appeared for arraignment in response to a summons or anappearance ticket, a printed statement upon such process of any court instruction required by theprovisions of subdivision four, other than those specified in paragraphs (d) and (e) thereof,constitutes compliance with such provisions with respect to the instruction so printed.

6. If a defendant charged with a traffic infraction or infractions only desires to proceed without theaid of counsel, the court must permit him to do so. In all other cases, the court must permit thedefendant to proceed without the aid of counsel if it is satisfied that he made such decision withknowledge of the significance thereof, but if it is not so satisfied it may not proceed until thedefendant is provided with counsel, either of his own choosing or by assignment. Regardless of thekind or nature of the charges, a defendant who proceeds at the arraignment without counsel does notwaive his right to counsel, and the court must inform him that he continues to have such right aswell as all the rights specified in subdivision three which are necessary to effectuate it, and that hemay exercise such rights at any stage of the action.

7. Upon the arraignment, the court, unless it intends to make a final disposition of the actionimmediately thereafter, must, as provided in subdivision one of section 530.20, issue a securingorder either releasing the defendant on his own recognizance or fixing bail for his future appearancein the action; except that where a defendant appears by counsel pursuant to paragraph (b) ofsubdivision one of this section, the court must release the defendant on his own recognizance.

8. Notwithstanding any other provision of law to the contrary, a local criminal court may not, atarraignment or within thirty days of arraignment on a simplified traffic information charging aviolation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two ofthe vehicle and traffic law and upon which a notation has been made pursuant to subdivision twelveof section eleven hundred ninety-two of the vehicle and traffic law, accept a plea of guilty to aviolation of any subdivision of section eleven hundred ninety-two of the vehicle and traffic law, norto any other traffic infraction arising out of the same incident, nor to any other traffic infraction,violation or misdemeanor where the court is aware that such offense was charged pursuant to anaccident involving death or serious physical injury, except upon written consent of the districtattorney.

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8-a. (a) Where an information, a simplified information, a prosecutor's information, a misdemeanorcomplaint, a felony complaint or an indictment charges harassment in the second degree as definedin section 240.26 of the penal law, the people may serve upon the defendant and file with the courta notice alleging that such offense was committed against a member of the same family orhousehold as the defendant, as defined in subdivision one of section 530.11 of this chapter. Suchnotice must be served within fifteen days after arraignment on an information, a simplifiedinformation, a prosecutor's information, a misdemeanor complaint, a felony complaint or anindictment for such charge and before trial. Such notice must include the name of the person allegedto be a member of the same family or household as the defendant and specify the specific family orhousehold relationship as defined in subdivision one of section 530.11 of this chapter.

(b) If a defendant, charged with harassment in the second degree as defined in section 240.26 of thepenal law stipulates, or admits in the course of a plea disposition, that the person against whom thecharged offense is alleged to have been committed is a member of the same family or household asthe defendant, as defined in subdivision one of section 530.11 of this chapter, such allegation shallbe deemed established for purposes of paragraph (a) and subparagraph (vi) of paragraph (d) ofsubdivision one of section 160.55 of this title. If the defendant denies such allegation, the peoplemay, by proof beyond a reasonable doubt, prove as part of their case that the alleged victim of suchoffense was a member of the same family or household as the defendant. In such circumstances, thetrier of fact shall make its determination with respect to such allegation orally on the record or inwriting.

9. Nothing contained in this section applies to the arraignment of corporate defendants, which isgoverned generally by the provisions of article six hundred.

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PRACTICE COMMENTARIES2007 Main Volumeby Peter Preiser

This section prescribes the procedure to be followed for arraignment of defendants on accusatoryinstruments charging offenses other than a felony -- i.e., those that charge only a misdemeanor,violation or traffic infraction (see Penal Law § 10.00, subds. 1-4 for definition of the offensescovered). CPL § 180.10 deals with arraignment where the accusatory instrument is a felonycomplaint and CPL § 210.15 deals with arraignment where the accusatory instrument is anindictment or a superior court information.

“Arraignment,” as defined by the CPL differs from the common understanding of that process --i.e., the occasion upon which the defendant is required to enter a plea (see e.g., Black's LawDictionary, 8th ed. and Federal Rules of Criminal Procedure, Rule 10). Under the CPL“arraignment” does not include entry of a plea: it is the occasion upon which the defendant isapprised of the charge, advised of his or her rights and submits to the control of the court (seedefinition in CPL § 1.20[9]). Entry of a plea is a separate matter governed by distinct proceduralprovisions (see, e.g., CPL §§ 170.60, 340.20).

In the case of arraignments covered by this section however, it is not uncommon to accomplish boththe arraignment and the plea at one court session and, accordingly, when this is done the two stepsare condensed in such fashion as to give the impression that the plea is entered as part of thearraignment.

Nevertheless, the rationale for clearly distinguishing between the arraignment and any furtherproceeding rests upon more than mere technicality: substantive considerations militate againsttelescoping the steps. Foremost among these is the right to counsel. A defendant who appearswithout counsel must be given an opportunity to obtain representation before deciding upon a plea.Secondly, since the arraignment may be the first time the court has seen the accusatory instrument,consideration must be given to the question of sufficiency to determine whether the court hasjurisdiction (see Practice Commentary for CPL §§ 100.15, 100.40). In this connection note too thata misdemeanor complaint cannot serve as the basis for a plea unless the defendant waives the rightto an information (see subd. 4[d] of this section and CPL § 170.65).

Turning to the arraignment procedure itself, the basic statutory requirement is personal appearanceby the defendant, but this is excusable in two situations where the court has discretion to dispensewith same (see subd. 1). The first exception (1[a]) encompasses the vast majority of cases; the manymillions of charges prosecuted by simplified information -- e.g., traffic infractions. Where thesubstantive body of law that defines an offense charged in a simplified information permits a plea ofguilty by mail, the defendant may offer to waive arraignment, plead guilty and be sentenced throughcommunications by mail. Thereupon the court may proceed as if the defendant had been convictedin open court and may notify defendant of the fine or penalty imposed. Or, the court may deny theapplication and notify defendant to appear at a stated time and place for arraignment in person. SeeVehicle & Traffic Law, §§ 1805-1807; Parks, Rec. & Hist. Preservation Law, § 27.07; NavigationLaw, § 19. Corporations of course are governed by different considerations and can appear only bycounsel (see subd. 9 of this section and CPL § 600.20).

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The other exception (1[b]) is for cases where defendant is not brought to court in custody of anarresting officer -- i.e., where a summons or an appearance ticket was served. Here the statuteauthorizes the court, for good cause shown, to dispense with personal appearance for arraignmentand permit counsel to appear in lieu of the defendant. Where this course is followed, the court doesnot fix bail: it orders release on recognizance (see subd. 7 of this section and CPL § 510.40[2]). Inaddition to dispensing with the presence of the defendant at arraignment, the CPL authorizes thecourt to permit counsel to enter a plea (CPL § 340.20[2(a)]) and/or try the case (CPL § 340.50[2])in the absence of the defendant. Moreover, personal appearance may even be dispensed with atsentencing (CPL § 380.40[2]).

Upon defendant's personal appearance the court must immediately inform defendant of the chargeor charges, furnish a copy of the accusatory instrument (subd. 2) and advise defendant of the rightsand procedural provisions set forth in subdivision four; provided that where defendant appears inresponse to a summons or an appearance ticket, the court is not required to repeat certain courtinstructions printed on that document (see subd. 5). Where defendant appears without counsel thecourt must make certain that defendant is informed of the right to counsel and must also informdefendant of the procedure for obtaining representation outlined by subdivision 3. Here the court'sduty is not limited to informing defendant. The court itself is required to implement suchaffirmative action as is necessary to effectuate defendant's right to counsel (see subd. 4 [a]). Andthis applies in every case irrespective of individual circumstances.

The law does not contemplate judicial assessments as to whether defendants are experiencedenough to know their rights without being told, nor does it authorize judges to inform defendantsselectively as to their right to assigned representation. Moreover, if a defendant is not alert enoughto understand the advice, the judge should not forgo it but must make sure the defendant doesunderstand before proceeding, even -- if necessary -- briefly deferring the arraignment.

In re Bauer, 3 N.Y.3d 158, 160, 785 N.Y.S.2d 372., 818 N.E.2d 1113 (2004). In this respect thestatute and case law reflect New York's long-standing policy that every effort be made for certaintythat the defendant is aware, and has reasonable opportunity to avail himself, of the right torepresentation by counsel.

A defendant has the right to the aid of counsel at arraignment and at all subsequent stages of theproceedings, regardless of the gravity of the charge. Under New York statutory law this right isbroader than the requirements of the Federal Constitution, because the latter does not mandateassignment of counsel for indigent defendants in cases where the charge is below felony grade andthe sanction will not include a sentence of imprisonment (Alabama v. Shelton, 535 U.S. 654, 122S.Ct 1764, 152 L.Ed.2d 888 (2002). The New York statute guarantees assigned counsel to indigentdefendants regardless of the potential sentence. People v. Ross, 1986, 67 N.Y.2d 321, 326, 502N.Y.S.2d 693, 493 N.E.2d 917. The sole exception to the right of assigned counsel is where theaccusatory instrument charges no offense other than a traffic infraction. See subd. 3(c); cf. People v.Ross, supra, 67 N.Y.2d at 325; People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368, 213 N.E.2d670 (1965), cert. denied 384 U.S. 911, 86 S.Ct 1354, 16 L.Ed.2d 364.

Before proceeding further, if defendant appears without counsel and there has been no warrant ofarrest, the court should scrutinize the accusatory instrument to determine jurisdictional sufficiency.Where the instrument does not comport with the requirements for the court's jurisdiction, the courthas no authority to proceed, as the accusatory instrument should be dismissed and defendant

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discharged (Fitzpatrick v. Rosenthal, 29 A.D. 3d 24, 809 N.Y.S.2d 729 (4th Dept., 2006), appealdenied, 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919; see Practice Commentary for CPL §§100.15, 100.40; see also CPL §§ 140.45, 150.50[2]). Where the court has jurisdiction, it must makeinquiry with respect to defendant's representation by counsel and cannot permit defendant to enterany plea or make any election (other than in regard to a traffic infraction) without representation bycounsel, unless it is satisfied that the defendant made the choice to do so with knowledge of thevalue of counsel and risks inherent in self-representation. This requires a “searching inquiry” as todefendant's appreciation of the “dangers and disadvantages” of attempting to cope with the legalproceedings -- e.g., various motions, jury selection, introduction of evidence, objections to same,etc. -- as distinguished from merely advising as to the seriousness of the charge and of the fact thatthe defendant could be sentenced to imprisonment. People v. Kaltenbach, 60 N.Y.2d 797, 469N.Y.S.2d 685, 457 N.E.2d 791 (1983).

If the accusatory instrument is not dismissed or the case finally disposed of, the next step isissuance of a securing order, either releasing defendant on his own recognizance or fixing bail(subd. 7). Where, as here, the accusatory instrument does not charge a felony, commitment is not anoption (CPL § 530.20[1]) unless, of course, the bail is not posted (CPL § 510.40[3]). Further, it isimportant to note that the statutory duty to prescribe recognizance or bail on arraignment is notcontingent upon the fortuity of whether the defendant makes an application for recognizance orbail: it is absolute. Matter of LaBelle, 79 N.Y.2d 350, 582 N.Y.S.2d 970, 591 N.E.2d 1156 (1992).

Where defendant is charged by misdemeanor complaint, the court cannot accept a plea or proceedto trial until that instrument is superseded by an information, unless defendant waives the right tothe more formal accusation, and the court must so inform the defendant (see subd. 4 [d]). Ordinarilya waiver of this right will not be implied or presumed from defendant's silence. People v. Weinberg,34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974). If, however, a defendant who isrepresented by counsel waives the reading of the rights required by this section and thereafterproceeds to trial on a misdemeanor complaint without raising the issue, he or she will be deemed tohave waived prosecution by information. People v. Connor, 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468N.E.2d 35 (1984).

If the offense is charged by simplified information, the defendant is entitled to a supportingdeposition and the court must so inform the defendant upon arraignment (see subd. 4[c]). Due nodoubt to a drafting oversight the instruction in this paragraph was not amended to include simplifiedinformations other than the “simplified traffic information” when the others were added to the law.Nevertheless, CPL § 100.25[2] makes it clear that the defendant is entitled to demand a supportingdeposition for any simplified information, and there does not seem to be any reason to imply adistinction in the duty of the court to inform the defendant of the right to a supporting depositionbased upon a difference in the label of the particular simplified information involved. Unlike theright to have an information replace a misdemeanor complaint, discussed supra, the right to asupporting deposition is waived by failure to make timely request for same or upon entry of a guiltyplea or commencement of trial. People v. Beattie, 80 N.Y.2d 840, 587 N.Y.S.2d 585, 600 N.E.2d216 (1992).

Subdivision 8, added in 1992, was designed to guard against inadvertent acceptance of a guilty pleato a minor offense that may be asserted as a double jeopardy bar to prosecution of a serious felony-- such as homicide or vehicular assault -- when a vehicular accident is caused by a person drivingunder the influence of alcohol or drugs (Vehicle & Traffic Law § 1192) and someone else is thereby

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injured or killed. In such case a V & T § 1192 charge made at the time of the incident andreturnable in local criminal court could be disposed of while investigation is still underway and thedistrict attorney is preparing a more serious set of charges for presentation to a grand jury. The localcriminal court and even the assistant district attorney assigned to that court may well be unaware ofthe more serious charges stemming from the incident; and a guilty plea on the § 1192 charge,accepted unwittingly, could insulate the defendant from further prosecution. That situation actuallyoccurred in one case where the conviction disposing of the § 1192 charge effectively barredprosecution for the more serious offenses. See Grady v. Corbin, 110 S.Ct. 2084, 495 U.S. 508, 109L.Ed.2d 548 (1990), overruled due to its creation of a “same conduct” double jeopardy rationale, asdistinguished from a matching of elements test. United States v. Dixon, 509 U.S. 688, 113 S.Ct.2849, 125 L.Ed.2d 556 (1993).

A concomitant amendment to Vehicle & Traffic Law § 1192[12] provides a device to make thecourt aware of the possibility of more serious charges by requiring the police to indicate whether adeath or serious physical injury occurred in connection with the DWI charge by entering either “D”or “SPI” in the description of violation section of the simplified traffic information. That provision,however, carefully specifies that failure to make the notation will not affect the charge itself.Unfortunately, subdivision eight is not clear as to the effect of a plea taken contrary to therestriction. It does not directly divest the court of jurisdiction to accept a plea, and it does notprovide for nullification of a plea, in cases where the information bears the requisite notation of “D”or “SPI”: it simply states that the plea may not be accepted where the court “is aware” of the deathor injury. Note too, that this provision has no effect whatsoever upon a trial of the § 1192 offense,which also could commence while the more serious charges are being prepared.

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§ 180.10 Proceedings upon felony complaint; arraignment; defendant's rights,court's instructions and bail matters

1. Upon the defendant's arraignment before a local criminal court upon a felony complaint, the courtmust immediately inform him, or cause him to be informed in its presence, of the charge or chargesagainst him and that the primary purpose of the proceedings upon such felony complaint is todetermine whether the defendant is to be held for the action of a grand jury with respect to thecharges contained therein. The court must furnish the defendant with a copy of the felony complaint.

2. The defendant has a right to a prompt hearing upon the issue of whether there is sufficientevidence to warrant the court in holding him for the action of a grand jury, but he may waive such right.

3. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stageof the action, and, if he appears upon such arraignment without counsel, has the following rights:

(a) To an adjournment for the purpose of obtaining counsel; and

(b) To communicate, free of charge, by letter or by telephone provided by the law enforcementfacility where the defendant is held to a phone number located in the United States or Puerto Rico,for the purpose of obtaining counsel and informing a relative or friend that he or she has beencharged with an offense; and

(c) To have counsel assigned by the court in any case where he is financially unable to obtain the same.

4. The court must inform the defendant of all rights specified in subdivisions two and three. Thecourt must accord the defendant opportunity to exercise such rights and must itself take suchaffirmative action as is necessary to effectuate them.

5. If the defendant desires to proceed without the aid of counsel, the court must permit him to do soif it is satisfied that he made such decision with knowledge of the significance thereof, but if it isnot so satisfied it may not proceed until the defendant is provided with counsel, either of his ownchoosing or by assignment. A defendant who proceeds at the arraignment without counsel does notwaive his right to counsel, and the court must inform him that he continues to have such right aswell as all the rights specified in subdivision three which are necessary to effectuate it, and that hemay exercise such rights at any stage of the action.

6. Upon the arraignment, the court, unless it intends immediately thereafter to dismiss the felonycomplaint and terminate the action, must issue a securing order which, as provided in subdivisiontwo of section 530.20, either releases the defendant on his own recognizance or fixes bail orcommits him to the custody of the sheriff for his future appearance in such action.

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A criminal action to prosecute a felony may be commenced in one of two ways: the filing of afelony complaint in a local criminal court, or the filing of a Grand Jury indictment in a superiorcourt. Article 180 prescribes the procedure to be followed when the action is commenced by thefiling of a felony complaint.

As an aid to understanding the provisions of Article 180, it may be helpful to note that -- unlikejurisdiction over misdemeanors and lesser offenses -- the jurisdiction of the local criminal court,where the felony complaint must be filed, is limited to the functions of determining (a) whetherthere is any reasonable basis for a Grand Jury to indict, and (b) the assurances required for thedefendant's future appearances up to the time of defendant's first appearance in the superior courtafter indictment.

The first step is arraignment which, as defined by the CPL differs from the common understandingof that process -- i.e., the occasion upon which the defendant is required to enter a plea (see e.g.,Black's Law Dictionary, 8th ed. and Federal Rules of Criminal Procedure, Rule 10). Under the CPL,“arraignment” does not include entry of a plea: it is the occasion upon which the defendant isapprised of the charge, advised of his or her rights and submits to the control of the court (seedefinition in CPL § 1.20[9]). The entry of a plea is a separate matter governed by distinctprocedural provisions (see e.g., CPL § 210.50).

The basic protections to which a defendant is entitled during initial appearance on a felonycomplaint are spelled out in this section, as is the duty of the court to inform defendant of them andto take such affirmative action as is necessary to effectuate the defendant's rights. Of paramountimportance is the duty to inform defendant of the right to counsel and of the procedure for obtainingrepresentation. Here the court's duty is not limited to informing defendant. The court itself isrequired to implement such affirmative action as is necessary to effectuate defendant's right tocounsel (see subd. 4). This applies in every case irrespective of individual circumstances.

The law does not contemplate judicial assessments as to whether defendants are experiencedenough to know their rights without being told, nor does it authorize judges to inform defendantsselectively as to their right to assigned representation. Moreover, if a defendant is not alert enoughto understand the advice, the judge should not forgo it but must make sure the defendant doesunderstand before proceeding, even -- if necessary -- briefly deferring the arraignment.

In re Bauer, 3 N.Y.3d 158, 160, 785 N.Y.S.2d 372., 818 N.E.2d 1113(2004). Both the statute andcase law reflect New York's long-standing policy that every effort be made for certainty that thedefendant is aware, and has reasonable opportunity to avail himself, of the right to representation by counsel.

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Unfortunately, this section makes no direct reference to the court's initial duty, which is to ascertainat this entry stage whether the felony complaint is sufficient to confer jurisdiction -- for example,whether the allegations furnish reasonable cause to believe the defendant committed the offense(see e.g., Practice Commentaries CPL §§ 100.15, 100.40). If defendant makes the first appearancewithout counsel, the court should be especially alert to the issue of jurisdiction. Where theinstrument does not comport with requirements for jurisdiction, the court has no authority toproceed, as the accusatory instrument should be dismissed and defendant discharged. Fitzpatrick v.Rosenthal, 29 A.D. 3d 24, 809 N.Y.S.2d 729 (4th Dept., 2006) appeal denied, 6 N.Y.3d 715, 823N.Y.S.2d 355, 856 N.E.2d 919. Subdivision six does however obliquely recognize this by providingthat unless the court intends to “immediately” dismiss the felony complaint and “terminate theaction,” it must issue a securing order.

Subdivision two provides that the defendant has the right to a prompt hearing, but that “right” isillusory, as the People can (and frequently do) avoid the hearing by presenting the charge to aGrand Jury. Indictment by a Grand Jury terminates proceedings in the local criminal court --including the “right” to a hearing -- and thus once an indictment has been voted the right to ahearing is moot. People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818(1956). See CPL § 180.80[2]; see People v. Hodge, 53 N.Y.2d 313, 319, 441 N.Y.S.2d 231, 423N.E.2d 1060 (1981). If however a hearing was in fact held in violation of defendant's right tocounsel, there will be a post-indictment issue as to its effect on evidence at the trial. People v.Hodge, supra; People v. Wicks, 76 N.Y.2d 128, 556 N.Y.S.2d 970, 556 N.E.2d 409 (1990).

The decision as to whether a defendant ought to waive a preliminary hearing requires sensitiveconsideration of a number of factors. Although a hearing at this stage can serve as a valuablediscovery device (see People v. Hodge, supra, 53 N.Y.2d at 318), it also can serve to memorializefor use at trial the testimony of prosecution witnesses who might become unavailable forsubsequent appearance, considering the often lengthy period of time between arraignment and theactual trial (see People v. Arroyo, 54 N.Y.2d 567, 446 N.Y.S.2d 910, 431 N.E.2d 271 [l982], cert.denied, 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855). It should also be remembered that the“discovery” value in complex cases will probably be limited, since the People need only adducesufficient evidence at the hearing to show reasonable cause (see CPL §§ 180.60[8], 180.70[1]). Tobe considered, too, is the effect that a hearing or a demand for a hearing may have uponnegotiations for a reduction of the charge to a misdemeanor (see CPL §§ 180.30[2], 180.50,180.70[2], [3]).

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§ 170.70 Release of defendant upon failure to replace misdemeanor complaint byinformation

Upon application of a defendant against whom a misdemeanor complaint is pending in a localcriminal court, and who, either at the time of his arraignment thereon or subsequent thereto, hasbeen committed to the custody of the sheriff pending disposition of the action, and who has beenconfined in such custody for a period of more than five days, not including Sunday, without anyinformation having been filed in replacement of such misdemeanor complaint, the criminal courtmust release the defendant on his own recognizance unless:

1. The defendant has waived prosecution by information and consented to be prosecuted upon themisdemeanor complaint, pursuant to subdivision three of section 170.65; or

2. The court is satisfied that there is good cause why such order of release should not be issued.Such good cause must consist of some compelling fact or circumstance which precludedreplacement of the misdemeanor complaint by an information or a prosecutor's information withinthe prescribed period.


This section and its analogue (CPL § 180.80) are basically designed to assure that defendants arenot held in custody for more than a brief period on the basis of hearsay allegations. People ex rel.Ortez v. Commissioner, 93 N.Y.2d 959, 694 N.Y.S.2d 340,716 N.E.2d 175 (1999).

The provisions appear to be self-explanatory and the cases do not reveal any problems inadministration. There is, however, one aspect that needs to be specifically noted. The Court ofAppeals has pointed out that computation of time under this section does not follow the usual ruleof excluding the first day. The five day period includes the day custody commences, if that day isnot a Sunday. Moreover, unlike its analogue for felonies (CPL § 180.80), this statute provides thatany time in custody prior to arraignment is not to be counted. People ex rel. Neufeld v. McMickens,70 N.Y.2d 763, 520 N.Y.S.2d 744, 514 N.E.2d 1368 (1987), reversing on the opinion of Gibbons,J., at Appellate Division 117 A.D.2d 243, 247-252, 503 N.Y.S.2d 397; see also, People v. Stiles, 70N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 (1987).

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§ 180.80 Proceedings upon felony complaint; release of defendant from custodyupon failure of timely disposition

Upon application of a defendant against whom a felony complaint has been filed with a localcriminal court, and who, since the time of his arrest or subsequent thereto, has been held in custodypending disposition of such felony complaint, and who has been confined in such custody for aperiod of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legalholiday occurs during such custody, one hundred forty-four hours, without either a disposition ofthe felony complaint or commencement of a hearing thereon, the local criminal court must releasehim on his own recognizance unless:

1. The failure to dispose of the felony complaint or to commence a hearing thereon during suchperiod of confinement was due to the defendant's request, action or condition, or occurred with hisconsent; or

2. Prior to the application:

(a) The district attorney files with the court a written certification that an indictment has been voted;or

(b) An indictment or a direction to file a prosecutor's information charging an offense based uponconduct alleged in the felony complaint was filed by a grand jury; or

3. The court is satisfied that the people have shown good cause why such order of release shouldnot be issued. Such good cause must consist of some compelling fact or circumstance whichprecluded disposition of the felony complaint within the prescribed period or rendered such actionagainst the interest of justice.

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The purpose of this section is to assure that a defendant, who still has a right to proof by non-hearsay evidence of reasonable cause to believe he or she committed an offense, is not held incustody on the basis of the hearsay felony complaint for an unreasonable period awaiting adetermination by a Grand Jury on the basis of competent evidence.

Absent a showing of some compelling reason for delay in commencement of the preliminaryhearing, this section mandates the granting of an application for defendant's release onrecognizance, unless the hearing is commenced or proof that the Grand Jury has voted to charge thedefendant is filed within a 120 hour period following commencement of custody. An additionaltwenty-four hours is allowed where a Saturday, Sunday or legal holiday is involved: but the totalcannot exceed 144 hours, even if the arrest occurred on a Saturday and Monday is a legal holiday.Significantly, where custody commences by arrest, the hours start to tick away immediately and notsimply upon commitment after arraignment. Accordingly, processing time and time awaitingarraignment are included in the computation.

Naturally, where the hearing has been waived, or where the delay is due to some action by thedefendant, or with the consent of the defendant, release is not required (see subd. 1).

Subdivision three makes it clear that good cause for excusing the delay must be based upon a fact orcircumstance relating to the disposition of the felony complaint. One such reason might be that thevictim is in the hospital in critical condition. But the usual case where this statute would come intoplay is where the district attorney has no intention of proceeding with a hearing on the felonycomplaint and plans to short-circuit that procedure by securing an indictment. Note that delaycaused by problems in completing the Grand Jury proceeding will not qualify under subdivisionthree, and the defendant must be released. This has led to claims that the People have unfairly short-circuited presentation to achieve an indictment before the date for defendant's release. E.g, wheresubmission to the Grand Jury is timed to cut-off defendant's opportunity to exercise the CPL §190.50 [5] right to testify before that body, see People v. Evans, 79 N.Y.2d 407, 583 N.Y.S.2d 358,592 N.E.2d 1362 (1992); c.f., People v. Darrett, 2 A.D.3d 16, 769 N.Y.S.2d 14 (1st Dept., 2003); orwhere the People, having made an inadequate presentation, secure a vote and subsequently presentmore evidence to firm up a prima facie case with a second vote, see People v. Cade, 74 N.Y.2d 410at 420-421, 548 N.Y.S.2d 137, 547 N.E.2d 339 [1989] [opinion of Kaye, J. dissenting]).

Note that where the prosecutor relies upon the fact that the Grand Jury has acted in order to preventthe automatic release, subdivision two requires that proof be filed prior to the application forrelease. But the People's written certification that an indictment has been voted will suffice (theindictment need not actually have been drawn, signed and filed), unless the Grand Jury action hasresulted in a direction to file a prosecutor's information, in which case the direction must actuallyhave been signed and filed.

Delay in Grand Jury action following a preliminary hearing, or where a hearing has been waived, isdealt with under the provisions of CPL § 190.80.

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§ 500.10 Recognizance, bail and commitment; definitions of terms

As used in this title, and in this chapter generally, the following terms have the following meanings:

1. “Principal” means a defendant in a criminal action or proceeding, or a person adjudged a materialwitness therein, or any other person so involved therein that he may by law be compelled to appearbefore a court for the purpose of having such court exercise control over his person to secure hisfuture attendance at the action or proceeding when required, and who in fact either is before thecourt for such purpose or has been before it and been subjected to such control.

2. “Release on own recognizance.” A court releases a principal on his own recognizance when,having acquired control over his person, it permits him to be at liberty during the pendency of thecriminal action or proceeding involved upon condition that he will appear thereat whenever hisattendance may be required and will at all times render himself amenable to the orders andprocesses of the court.

3. “Fix bail.” A court fixes bail when, having acquired control over the person of a principal, itdesignates a sum of money and stipulates that, if bail in such amount is posted on behalf of theprincipal and approved, it will permit him to be at liberty during the pendency of the criminal actionor proceeding involved.

4. “Commit to the custody of the sheriff.” A court commits a principal to the custody of the sheriffwhen, having acquired control over his person, it orders that he be confined in the custody of thesheriff during the pendency of the criminal action or proceeding involved.

5. “Securing order” means an order of a court committing a principal to the custody of the sheriff,or fixing bail, or releasing him on his own recognizance.

6. “Order of recognizance or bail” means a securing order releasing a principal on his ownrecognizance or fixing bail.

7. “Application for recognizance or bail” means an application by a principal that the court, insteadof committing him to or retaining him in the custody of the sheriff, either release him on his ownrecognizance or fix bail.

8. “Post bail” means to deposit bail in the amount and form fixed by the court, with the court orwith some other authorized public servant or agency.

9. “Bail” means cash bail or a bail bond.

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10. “Cash bail” means a sum of money, in the amount designated in an order fixing bail, posted by aprincipal or by another person on his behalf with a court or other authorized public servant oragency, upon the condition that such money will become forfeit to the people of the state of NewYork if the principal does not comply with the directions of a court requiring his attendance at thecriminal action or proceeding involved or does not otherwise render himself amenable to the ordersand processes of the court.

11. “Obligor” means a person who executes a bail bond on behalf of a principal and therebyassumes the undertaking described therein. The principal himself may be an obligor.

12. “Surety” means an obligor who is not a principal.

13. “Bail bond” means a written undertaking, executed by one or more obligors, that the principaldesignated in such instrument will, while at liberty as a result of an order fixing bail and of theposting of the bail bond in satisfaction thereof, appear in a designated criminal action or proceedingwhen his attendance is required and otherwise render himself amenable to the orders and processesof the court, and that in the event that he fails to do so the obligor or obligors will pay to the peopleof the state of New York a specified sum of money, in the amount designated in the order fixing bail.

14. “Appearance bond” means a bail bond in which the only obligor is the principal.

15. “Surety bond” means a bail bond in which the obligor or obligors consist of one or moresureties or of one or more sureties and the principal.

16. “Insurance company bail bond” means a surety bond, executed in the form prescribed by thesuperintendent of financial services, in which the surety-obligor is a corporation licensed by thesuperintendent of financial services to engage in the business of executing bail bonds.

17. “Secured bail bond” means a bail bond secured by either:

(a) Personal property which is not exempt from execution and which, over and above all liabilitiesand encumbrances, has a value equal to or greater than the total amount of the undertaking; or

(b) Real property having a value of at least twice the total amount of the undertaking. For purposesof this paragraph, value of real property is determined by either:

(i) dividing the last assessed value of such property by the last given equalization rate or in a specialassessing unit, as defined in article eighteen of the real property tax law, the appropriate class ratioestablished pursuant to section twelve hundred two of such law of the assessing municipalitywherein the property is situated and by deducting from the resulting figure the total amount of anyliens or other encumbrances upon such property; or

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(ii) the value of the property as indicated in a certified appraisal report submitted by a state certifiedgeneral real estate appraiser duly licensed by the department of state as provided in section onehundred sixty-j of the executive law, and by deducting from the appraised value the total amount ofany liens or other encumbrances upon such property. A lien report issued by a title insurancecompany licensed under article sixty-four of the insurance law, that guarantees the correctness of alien search conducted by it, shall be presumptive proof of liens upon the property.

18. “Partially secured bail bond” means a bail bond secured only by a deposit of a sum of moneynot exceeding ten percent of the total amount of the undertaking.

19. “Unsecured bail bond” means a bail bond, other than an insurance company bail bond, notsecured by any deposit of or lien upon property.

20. “Court” includes, where appropriate, a judge authorized to act as described in a particularstatute, though not as a court.

SUPPLEMENTARY PRACTICE COMMENTARIES2011 Electronic Update

by Peter Preiser

New legislation requested by the office of court administration has eased the procedure forestablishing the value of real property pledged under a secured bail bond pursuant to subdivision17(b). Now it no longer will of the be necessary to go through the arduous complex process ofestablishing the value through proof ascertained from county or municipal authorities of the lastassessed value of the property under the last given assessment rate or special assessing unit less anyrecorded mortgages or liens. As an option under new paragraph (ii) gross value can be establishedthrough a certified real estate appraisal report and net value by deducting a lien search issued by alicensed title insurance company. Simplification of the procedure will encourage use of the realproperty option in lieu of the expense involved in procuring a bail bond.

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This section sets forth the definitions applicable to the subject of securing orders issued in thecourse of a criminal action or proceeding.

The term “securing order” as defined in subdivision five encompasses the entire gamut of devicesfor retaining control of persons to assure their future attendance or appearance during the course ofa criminal action or proceeding. Note that the term “principal” defined in subdivision one is used todefine the person whose attendance is to be required, because the securing order provisions applywhen appropriate to the required attendance of a material witness (See CPL Art. 620, infra) as wellas to a defendant.

Authority to employ the CPL securing order provisions is strictly limited to cases where attendanceor appearance is required during a “criminal action or proceeding” (see definition of “principal” insubd. 1). Those terms--i.e., “criminal action” and “criminal proceeding”--are terms of artspecifically defined in CPL § 1.20. Thus the securing orders authorized by the CPL do not includeother types of legal actions, such as adjudications under the Family Court Act-e.g., juveniledelinquency proceedings (see Matter of Natasha C., 1993, 80 N.Y.2d 678, 593 N.Y.S.2d 986, 609N.E.2d 526), or even hearings to decide parole violations, since parole occurs after termination ofthe criminal action by imposition of sentence (see People ex rel. Calloway v. Skinner, 1973, 33N.Y.2d 23, 33-34, 347 N.Y.S.2d 178, 300 N.E.2d 716).

The twenty definitions in the respective subdivisions are clear and self explanatory. With theexception of a 1992 clarifying amendment to subdivision 17(b) affecting the equalization rate forvaluing real property located in a special assessing unit offered as collateral for a secured bail bond,they have not required amendment since enactment in 1970. While there has been little need forjudicial opinions to construe these provisions, two are worthy of note. These construed that 17(b)provision which requires real property offered as collateral for a secured bail bond to have a valueof at least double the amount fixed as bail. One upheld the provision against a claim that it was anirrational violation of the constitutional guarantee of equal protection or the laws. There the Courtfound the distinction to be a reasonable means for assuring that the value of the real propertyoffered for security is adequate, considering the various problems and time delays involved inascertaining the actual market value of real property after exemption for execution. People ex rel.Hardy on behalf of Miller v. Seilaff, 1992, 79 N.Y.2d 618, 584 N.Y.S.2d 742, 595 N.E.2d 817. Theother, construed the provision as inapplicable to an insurance company bail bond authorized bysubdivision 16. People v. Imran, 193 Misc.2d 746, 754 N.Y.S.2d 159 (NY Crim.Ct. 2002).

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§ 510.10 Securing order; when required

When a principal, whose future court attendance at a criminal action or proceeding is or may berequired, initially comes under the control of a court, such court must, by a securing order, eitherrelease him on his own recognizance, fix bail or commit him to the custody of the sheriff. When asecuring order is revoked or otherwise terminated in the course of an uncompleted action orproceeding but the principal's future court attendance still is or may be required and he is still underthe control of a court, a new securing order must be issued. When the court revokes or otherwiseterminates a securing order which committed the principal to the custody of the sheriff, the courtshall give written notification to the sheriff of such revocation or termination of the securing order.


This section is one of several in the CPL establishing the duty of the court to issue a securing orderwhen a principal (as defined in CPL § 500.10[1]) initially comes under its control in a criminalaction or proceeding. For a defendant that means upon initial arraignment, unless of course thematter is finally disposed of at that time (see CPL §§ 170.10[7], 180.10[6], 210.15[6]). In the caseof a material witness, § 620.40 would apply.

While the section in general terms appears to vest the court with discretionary authority to utilizeeither of the three types of securing order--i.e., recognizance, bail or commitment--limitations uponthe court's discretion are set forth in other provisions of the CPL (see e.g., CPL § 530.20).

As noted in the Practice Commentaries for CPL § 500.10, the securing order authority in the CPLapplies only to a criminal action or proceeding.

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§ 510.15 Commitment of principal under sixteen

1. When a principal who is under the age of sixteen is committed to the custody of the sheriff thecourt must direct that the principal be taken to and lodged in a place certified by the state divisionfor youth as a juvenile detention facility for the reception of children. Where such a direction ismade the sheriff shall deliver the principal in accordance therewith and such person shall althoughlodged and cared for in a juvenile detention facility continue to be deemed to be in the custody ofthe sheriff. No principal under the age of sixteen to whom the provisions of this section may applyshall be detained in any prison, jail, lockup, or other place used for adults convicted of a crime orunder arrest and charged with the commission of a crime without the approval of the state divisionfor youth in the case of each principal and the statement of its reasons therefor. The sheriff shall notbe liable for any acts done to or by such principal resulting from negligence in the detention of andcare for such principal, when the principal is not in the actual custody of the sheriff.

2. Except upon consent of the defendant or for good cause shown, in any case in which a newsecuring order is issued for a principal previously committed to the custody of the sheriff pursuantto this section, such order shall further direct the sheriff to deliver the principal from a juveniledetention facility to the person or place specified in the order.


This section was added in 1978 to implement the new juvenile offender legislation which reducedthe age for criminal responsibility from sixteen to thirteen years in the case of selected seriousfelonies. A number of adjustments had to be made to the CPL to accommodate the specialprovisions thought appropriate for these younger offenders (see e.g., CPL §§ 1.20[42], 180.75,190.71, 210.43, 220.10, 310.85, 330.25, CPL Art. 725, and Practice Commentaries thereto). Sincethis age group had never been confined with older persons, and it was deemed desirable to maintainthat segregation, the present section continues the preexisting policy of confining those who are notreleased in youth detention facilities pending determination of the charges. Similar provision wasmade for incarceration of those ultimately convicted and sentenced to imprisonment (see Penal Law§ 70.20[4]).

Subdivision two was added in 1980 to deal with the fact that juvenile detention facilities are notlocated in every county. Thus when a defendant is remanded the institution of confinement may bequite a distance from the county where the commitment was ordered. If the defendant subsequentlyis released pursuant to an order of recognizance or bail, there was no obligation on the sheriff toprovide transportation from the remote detention facility to the county that ordered the commitment.As the sponsor indicated, “[r]eleasing a youth hundreds of miles from his home not only ispotentially harmful to the youth, but may also subject both the state and the sheriff to liability forany harm that may come to the youth” (Senate Memorandum). Accordingly, subdivision twoprovides the court with authority to require the sheriff to deliver the youth to a specified location.

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§ 510.20 Application for recognizance or bail; making and determination thereofin general

1. Upon any occasion when a court is required to issue a securing order with respect to a principal,or at any time when a principal is confined in the custody of the sheriff as a result of a previouslyissued securing order, he may make an application for recognizance or bail.

2. Upon such application, the principal must be accorded an opportunity to be heard and to contendthat an order of recognizance or bail must or should issue, that the court should release him on hisown recognizance rather than fix bail, and that if bail is fixed it should be in a suggested amountand form.

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by Peter Preiser

This section provides the statutory vehicle for a principal (usually a defendant) to make anapplication for bail or recognizance--as opposed to commitment--and to present arguments andevidence in support thereof. The application may be made at the time of the original securing orderor at any time thereafter. Where it is made after bail has been fixed, it may simply be a plea forreduction or change in form of a bail order previously fixed, or for recognizance, based uponchanged circumstances (cf., People ex rel. Rosenthal (Kolman) v. Wolfson, 1979, 48 N.Y.2d 230,233, 422 N.Y.S.2d 55, 397 N.E.2d 745).

Note that apart from this, the CPL specifically provides for release on recognizance or bail wherethe People have failed to take particular action within specified time deadlines (see CPL §§30.30[2], 170.70, 180.80; see also CPL § 210.45[9]).

An application by a defendant in a criminal action is to be made in the court that is required to fixthe securing order. Where the action is pending in a local criminal court, the application may undercertain circumstances be made to a judge or justice of a superior court (see CPL § 530.30). Unlikethe restriction in the old Code of Criminal Procedure (see §§ 563-564), there is no limit upon thenumber of applications that can be made.

In considering this matter it is important to observe that the defendant is entitled to be heard on theapplication and that statutory criteria govern exercise of the court's discretion (see CPL § 510.30).Accordingly, the court's discretion cannot be exercised in an arbitrary manner (see In re Restaino,2008, 10 N.Y.3d 577, 589-590, 860 N.Y.S.2d 462, 890 N.E.2d 224; People ex rel. Yannarilli v.Draxler, 41 A.D.2d 684, 340 N.Y.S.2d 755 [3d Dept. 1973]. Note that although there is no appealfrom a nisi prius decision fixing a securing order (but see CPL § 530.30 regarding review of ordersmade by local criminal courts), habeas corpus is available to remedy allegations of violations oflaw or abuse of discretion (see e.g., People ex rel. Klein v. Krueger, 1969, 25 N.Y.2d 497, 307N.Y.S.2d 207, 255 N.E.2d 552). Accordingly, the record must reflect a basis for the nisi priusdiscretionary decision on the application to indicate whether there was proper consideration of thestatutory factors (see CPL § 510.30) for review by the habeas court. People ex rel. Rosenthal(Kolman) v. Wolfson, supra.

In this connection it is important to bear in mind the distinction between an application orreplication to the bail setting court or to a judge of a superior court (under § 530.30) on the onehand and habeas corpus on the other. In the case of the former, prior decisions may be examinedafresh and revised as a matter of discretion: but in the latter case only errors of law are correctable--i.e., violation of constitutional or statutory standards or abuse of discretion (People ex rel. Klein v.Krueger, supra). In other words “the function of the habeas court is one of collateral review ... asecond stage re-examination” (People ex rel. Rosenthal (Kolman) v. Wolfson, supra; People ex rel.Lazer (Palmieri) v. Warden, 1992, 79 N.Y.2d 839, 580 N.Y.S.2d 183, 588 N.E.2d 81; People ex rel.Parker v. Hasenauer, 1984, 62 N.Y.2d 777, 477 N.Y.S.2d 320, 465 N.E.2d 1256).

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§ 510.30 Application for recognizance or bail; rules of law and criteriacontrolling determination

1. Determinations of applications for recognizance or bail are not in all cases discretionary but aresubject to rules, prescribed in article five hundred thirty and other provisions of law relating tospecific kinds of criminal actions and proceedings, providing (a) that in some circumstances such anapplication must as a matter of law be granted, (b) that in others it must as a matter of law be deniedand the principal committed to or retained in the custody of the sheriff, and © that in others thegranting or denial thereof is a matter of judicial discretion.

2. To the extent that the issuance of an order of recognizance or bail and the terms thereof arematters of discretion rather than of law, an application is determined on the basis of the followingfactors and criteria:

(a) With respect to any principal, the court must consider the kind and degree of control orrestriction that is necessary to secure his court attendance when required. In determining thatmatter, the court must, on the basis of available information, consider and take into account:

(i) The principal's character, reputation, habits and mental condition;

(ii) His employment and financial resources; and

(iii) His family ties and the length of his residence if any in the community; and

(iv) His criminal record if any; and

(v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section354.2 [FN1] of the family court act, or, of pending cases where fingerprints are retained pursuant tosection 306.1 of such act, or a youthful offender, if any; and

(vi) His previous record if any in responding to court appearances when required or with respect toflight to avoid criminal prosecution; and

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

(A) any violation by the principal of an order of protection issued by any court forthe protection of a member or members of the same family or household as that termis defined in subdivision one of section 530.11 of this title, whether or not such orderof protection is currently in effect; and

(B) the principal's history of use or possession of a firearm; and

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(viii) If he is a defendant, the weight of the evidence against him in the pending criminal action andany other factor indicating probability or improbability of conviction; or, in the case of anapplication for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and

(ix) If he is a defendant, the sentence which may be or has been imposed upon conviction.

(b) Where the principal is a defendant-appellant in a pending appeal from a judgment of conviction,the court must also consider the likelihood of ultimate reversal of the judgment. A determinationthat the appeal is palpably without merit alone justifies, but does not require, a denial of theapplication, regardless of any determination made with respect to the factors specified in paragraph (a).

3. When bail or recognizance is ordered, the court shall inform the principal, if he is a defendantcharged with the commission of a felony, that the release is conditional and that the court mayrevoke the order of release and commit the principal to the custody of the sheriff in accordance withthe provisions of subdivision two of section 530.60 of this chapter if he commits a subsequentfelony while at liberty upon such order.

[FN1] So in original. Probably should be “section 354.1”.

SUPPLEMENTARY PRACTICE COMMENTARY

by William C. Donnino 2012

Domestic violence

In 2012, on recommendation of the Governor, the Legislature enacted a series of laws designed to“enhance protections for victims of domestic violence.” Governor's Legislative Memorandum forthe Laws of 2012, c. ?. The criminal law provisions included the addition of two crimes(“aggravated family offense” [Penal Law § 240.75(1)] and an added form of commission of“aggravated harassment in the second degree” [Penal Law § 240.30(4)]), as well as amendments tothe instant statute to detail what a court may consider in setting a “securing order” for a defendantcharged with a crime against a member of the “same family or household” [as defined in CPL530.11].

As to the instant statute, subdivision (2)(a) of this section dictates that when a court has thediscretion to issue a securing order, the court must consider the factors listed in that subdivision todetermine “the kind and degree of control or restriction that is necessary to secure [the defendant's]court attendance when required.” Thus, as discussed in the main commentary, when setting asecuring order under this provision, the statutory direction has been to do so for the purpose ofsecuring the defendant's future attendance, not for the purpose of preventive detention. Prior to the2012 legislation, eight factors were listed; the 2012 legislation renumbered the factors listed insubparagraphs (vii) and (viii) to be subparagraphs (viii) and (ix), respectively, and added a newsubparagraph (vii).

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The added subparagraph applies to a defendant who is charged with a crime against a member ofthe “same family or household” [as defined in CPL 530.11].

CPL 530.11(1) defines “members of the same family or household” to mean: “(a) persons related byconsanguinity or affinity; (b) persons legally married to one another; (c) persons formerly marriedto one another regardless of whether they still reside in the same household; (d) persons who have achild in common, regardless of whether such persons have been married or have lived together atany time; and (e) persons who are not related by consanguinity or affinity and who are or have beenin an intimate relationship regardless of whether such persons have lived together at any time...”

If the defendant is so charged, the court must consider “any violation” by the defendant of an orderof protection issued for the protection of a member of the “same family or household”; and thedefendant's “history of use or possession of a firearm.”

The legislative memorandum justified the amendment by explaining that “perpetrators of domesticviolence offenses may be set free on low bail and thereby allowed to stalk, harm and sometimes killtheir specifically targeted victims. If judges determining recognizance and bail in domestic violencecases were required to consider well established risk factors, such as an offender's prior violation ofan order of protection and the accused's access to guns, many victims and their children would bespared additional harm and, in some tragic incidences, their lives. However, the bail statutecurrently does not consider the unique nature of domestic violence cases. This legislation permitsjudges to take such factors into account. In addition to such preventative measures ...”

Whether there is an irreconcilable conflict between the “preventive detention” intent expressed inthat legislative memorandum and the placement of the amendment in the statute which directs thecourt to consider what securing order is necessary to secure the defendant's future attendance incourt, and if so, how it is resolved, becomes the burden of the courts.

In any event, as discussed in the main commentary, “preventive detention” does not violate thefederal constitution. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).Cf. People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 385 N.Y.S.2d 518, 350 N.E.2d 906(1976)(upholding the constitutionality of preventive detention in juvenile delinquency proceedings).

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by Peter Preiser

Applications for recognizance or bail may be made pursuant to CPL § 510.20 (see PracticeCommentaries for that section). However, not all decisions imposing securing orders are subject tothe exercise of the court's discretion. Accordingly, subdivision one draws attention to the fact that insome cases the decision as to which of the three alternative types of securing order is to be issued isdictated by specific statutory provision rather than open to the court's discretion. Subdivision two,the heart of this section sets forth criteria to guide the exercise of discretion for cases wherediscretion is authorized.

There is no federal or New York constitutional right to bail or recognizance. See United States v.Salerno, 1987, 481 U.S.739, 107 S.Ct. 2095 (U.S. Const.); People ex rel Fraser v. Britt, 1942, 289N.Y. 614, 43 N.E.2d 836; People ex rel. Shapiro v. Keeper of City Prison, 1943, 290 N.Y. 393,397-398, 49 N.E.2d 498 (N.Y. Const.). The only constitutional rights are: (a) that the Court'sdiscretion not be exercised arbitrarily, which encompasses both selection of the securing order (e.g.,recognizance or bail vs. jail); and (b) the express constitutional prohibition against “excessive bail”(U.S. Const. amend VIII; N.Y. Const. art. 1, § 5). See e.g., People ex rel. Klein v. Krueger, 1969, 25N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552.

Unlike federal law, which sets out standards that permit a court to commit a defendant forpreventive detention to reasonably assure the safety of the community (see 18 U.S.C. § 3142 andUnited States. v. Salerno, supra [upholding the constitutionality of preventive detention]), the soleobjective to be considered when a New York court exercises discretion in choosing amongavailable alternatives and, in the case of bail the form and amount thereof, is “the kind and degreeof control or restriction that is necessary to secure [the principal's] court attendance when required”(see subd. 2[a]). In re Restaino, 2008, 10 N.Y.3d 577, 588, 860 N.Y.S.2d 462, 890 N.E.2d 224; cf.,Sardino v. State Com'n on Judicial Conduct, 1983, 58 N.Y.2d 286, 289, 461 N.Y.S.2d 229, 448N.E.2d 83).

It is relevant to note in this connection that the CPL Revision Commission's proposal for preventivedetention, which survived the first three published proposals for the CPL, was specifically rejectedby the Legislature when it enacted the final bill (see Judge Denzer's original Practice Commentaryfor the present section in the 1971 edition of McKinney's Criminal Procedure Law at pages 15-16).Ten years later in 1981 however, the Legislature modified its rigid opposition somewhat bypermitting revocation of bail or recognizance for strictly limited public safety purposes (see CPL §530.60 and Practice Commentaries thereto).

Paragraph (a) of subdivision two sets forth the criteria to be considered by the court whenexercising its discretion prior to imposition of sentence (i.e., prior to judgment of conviction).Although the criteria were never specified in statutory form in New York before the advent of theCPL in 1971, they are, by and large, the same as have been employed by courts for many years (seee.g., People ex rel. Lobell v. McDonnell, 1947, 296 N.Y. 109, 111-112, 71 N.E.2d 123). With theexception of a demonstrable indication of the probability of flight (see e.g., People ex rel.Weisenfeld (Cifone) v. Warden, 1975, 37 N.Y.2d 760, 761, 374 N.Y.S.2d 631, 337 N.E.2d 140), nosingle criterion, including the seriousness of the charge (see e.g., People ex rel. Yannarilli v.

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Draxler, 41 A.D.2d 684, 340 N.Y.S.2d 755 [3d Dept. 1973]), is considered sufficient as a basis forrefusing to order bail or recognizance. The court is required to consider all of the factors (see In reBauer, 3 N.Y.3d 158, 160-161, 2004, 785 N.Y.S.2d 372, 818 N.E.2d 1113; cf., People ex rel. Lazer[Palmieri] v. Warden, 1992, 79 N.Y.2d 839, 580 N.Y.S.2d 183, 588 N.E.2d 81).

When considering whether to require the posting of financial security as bail for release of adefendant and in fixing the amount thereof, though it has been recognized that a defendant is not“entitled to such bail as he can provide, but he is entitled to an opportunity to make it in areasonable amount” (see Stack v. Boyle, 1951, 72 S.Ct. 1, 6, 342 U.S. 1, 10, 96 L.Ed. 3 [concurringopinion of Justice Jackson]), in too many cases what would appear to be reasonable in the abstractsimply results in detention for defendants with insufficient resources. In that sense, the lack of anexus between the resources of a defendant and the use of financial bail reflects an absence of logicin the whole securing order system. This has been recognized for federal prosecutions, where thecourt is prohibited from imposing a financial condition that results in pretrial detention (see 18U.S.C. 3142[c]).

Paragraph (b) of subdivision two injects a further consideration where the application for bail orrecognizance is made after judgment, pending appeal (the procedure for such applications is setforth in CPL §§ 460.50, 460.60). Once judgment has been imposed the judicial officer to whom theapplication is made, though entitled to consider all of the other criteria, may deny the application onthe sole ground that the likelihood of reversal is remote. As explained by the draftsman, JudgeDenzer, “[t]he theory of this provision manifestly is that once a conviction occurs the defendant isin a vastly different position than before; and that a judge who is utterly convinced that thejudgment will stand is under no obligation to defer execution of the sentence merely because hebelieves that the appellant will later be available to serve it” (see Staff Comment to ProposedCriminal Procedure Law, 1967, p.437)

On the subject of post conviction bail or recognizance, note that the defendant has two motionsavailable: one between plea or verdict and sentence (see CPL § 530.45) and the other after sentencepending appeal (see CPL §§ 530.50, 460.50, 460.60). Each of these motions may be made onlyonce, but there is no bar to making the latter after the former has been unsuccessful (see PracticeCommentaries for CPL § 460.50). Note though that post conviction bail or recognizance cannot begranted by any court in the case of a conviction or sentence for a class A felony or a class B or Cfelony defined in Penal Law Article one hundred thirty (the sex offenses article) committed by adefendant over the age of eighteen against a person whose age was under eighteen. The blanketrestriction for class A felonies is an anachronism because several drug offense felonies are nolonger punishable by life imprisonment.

Subdivision three was added in 1981 as part of the new procedure mentioned above for revocationof bail to accommodate public safety considerations. The statutorily required warning encompassesonly one of the several reasons why bail may be revoked for subsequent misbehavior (see e.g., CPL§§ 530.12[11], 530.13[8]), and failure to give the warning does not deprive the court of jurisdictionto revoke bail where the statutory prerequisite for such action exists--at least there is no statutoryauthority for any such conclusion and no case has so held.

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§ 510.40 Application for recognizance or bail; determination thereof, form ofsecuring order and execution thereof

1. An application for recognizance or bail must be determined by a securing order which either:

(a) Grants the application and releases the principal on his own recognizance; or

(b) Grants the application and fixes bail; or

(c) Denies the application and commits the principal to, or retains him in, the custody of the sheriff.

2. Upon ordering that a principal be released on his own recognizance, the court must direct him toappear in the criminal action or proceeding involved whenever his attendance may be required andto render himself at all times amenable to the orders and processes of the court. If such principal isin the custody of the sheriff or at liberty upon bail at the time of the order, the court must direct thathe be discharged from such custody or, as the case may be, that his bail be exonerated.

3. Upon the issuance of an order fixing bail, and upon the posting thereof, the court must examinethe bail to determine whether it complies with the order. If it does, the court must, in the absence ofsome factor or circumstance which in law requires or authorizes disapproval thereof, approve thebail and must issue a certificate of release, authorizing the principal to be at liberty, and, if he is inthe custody of the sheriff at the time, directing the sheriff to discharge him therefrom. If the bailfixed is not posted, or is not approved after being posted, the court must order that the principal becommitted to the custody of the sheriff.


by Peter Preiser

This section prescribes the mechanics involved in determining an application for recognizance orbail and the nature of orders releasing a defendant on his own recognizance and setting bail.

Note especially the detailed provisions of subdivision three with respect to bail and the requirementthat the court examine the bail to determine whether it complies with the order. Approval is not aforegone conclusion (see CPL § 520.30 and Practice Commentaries thereto).

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§ 510.50 Enforcement of securing order

When the attendance of a principal confined in the custody of the sheriff is required at the criminalaction or proceeding at a particular time and place, the court may compel such attendance bydirecting the sheriff to produce him at such time and place. If the principal is at liberty on his ownrecognizance or on bail, his attendance may be achieved or compelled by various methods,including notification and the issuance of a bench warrant, prescribed by law in provisionsgoverning such matters with respect to the particular kind of action or proceeding involved.


by Peter Preiser

This section merely provides a general description of how securing orders may be enforced.Specific provisions also are set forth in other articles dealing with particular phases of the criminalaction (see e.g., CPL §§ 210.10[1][2], 460.50[5], 620.70).

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§ 520.10 Bail and bail bonds; fixing of bail and authorized forms thereof

1. The only authorized forms of bail are the following:

(a) Cash bail.

(b) An insurance company bail bond.

(c) A secured surety bond.

(d) A secured appearance bond.

(e) A partially secured surety bond.

(f) A partially secured appearance bond.

(g) An unsecured surety bond.

(h) An unsecured appearance bond.(i) Credit card or similar device; provided, however, that notwithstanding any other provision oflaw, any person posting bail by credit card or similar device also may be required to pay areasonable administrative fee. The amount of such administrative fee and the time and manner of itspayment shall be in accordance with the system established pursuant to subdivision four of section150.30 of this chapter or paragraph (j) of subdivision two of section two hundred twelve of thejudiciary law, as appropriate.

2. The methods of fixing bail are as follows:

(a) A court may designate the amount of the bail without designating the form or forms in which itmay be posted. In such case, the bail may be posted in either of the forms specified in paragraphs(g) and (h) of subdivision one;

(b) The court may direct that the bail be posted in any one of two or more of the forms specified insubdivision one, designated in the alternative, and may designate different amounts varying with theforms; [FN1]

[FN1] So in original. Sentence should probably end in a period.

SUPPLEMENTARY PRACTICE COMMENTARYby William C. Donnino

2012

In People ex rel. McManus v. Horn, 18 N.Y.3d 660, 944 N.Y.S.2d 448, 967 N.E.2d 671 (2012), theCourt of Appeals held that a court must set bail in two forms, as opposed to setting a cash bail only.The Court also noted that to some extent the requirement could be an academic exercise because ifa court believes that a particular amount of cash bail is necessary, the court may set an alternativebail form which “may be virtually indistinguishable” from the cash option. “For instance, the judge[who sets a $20,000 cash bail] could order as an alternative a $200,000 partially-secured appearance

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bond requiring a monetary deposit of 10% (see CPL 500.10 [18]), or a $20,000 secured appearancebond that could be satisfied with (among other things) $20,000 in cash (see CPL 500.10 [17] [a]).”Id. at 666.


by Peter Preiser

Subdivision one sets forth the nine authorized forms of bail. Those authorized by the first eightparagraphs ([a] through [h]) are defined in CPL § 500.10.

The ninth authorized form of bail, use of a credit card (par. I) was first added in 1986 butimmediately amended in 1987 to restrict it's eligibility to a “violation” defined in the Vehicle andTraffic Law. But that restriction was not clear from a literal reading, because the only extantdefinition of the term “violation” excludes traffic infractions as well as crimes (see Penal Law §10.00[3]), and there was no definitive case law interpreting it. Ultimately, in 2005 the Legislatureremoved the restriction and presently a credit card is an authorized form of bail for any offense.Also, at the same time credit cards were made an authorized alternative for payment of fines,mandatory surcharges and fees (see CPL § 420.05).

Paragraphs (e) through (h) were innovations initiated by the CPL and represent less burdensomeforms of bail than those previously available. They were added to vest the court with the utmostdegree of flexibility, including the ability to designate alternative forms with alternative amounts.

Subdivision two deals with the court's designation of the form of the bail to be posted. As originallyenacted paragraph (a) provided that, where the court failed to specify the form of bail, the defendantwas limited to selecting from among the most onerous provisions (i.e., paragraphs [a] through [d] ofsubd. 1). By amendment in 1972, the Legislature reversed that presumption so that now paragraph(a) provides that, when the court fails to specify, the defendant may post unsecured bail in the leastonerous form--i.e., an unsecured surety bond or an appearance bond secured only by the defendant'spromise to pay. However it is doubtful that the defendant would receive this largess by oversight,since the court must approve the form in which the bail is posted prior to release of the principal(see CPL § 510.40[3]).

Note that irrespective of the form of bail specified by the court, the defendant always has the optionof posting cash bail (see CPL § 520.15), subject however to rejection by the court for cause--e.g.,illegal source (see § 520.30 and Practice Commentaries thereto).

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§ 520.15 Bail and bail bonds; posting of cash bail

1. Where a court has fixed bail pursuant to subdivision two of section 520.10, at any time after theprincipal has been committed to the custody of the sheriff pending the posting thereof, cash bail inthe amount designated in the order fixing bail may be posted even though such bail was notspecified in such order. Cash bail may be deposited with (a) the county treasurer of the county inwhich the criminal action or proceeding is pending or, in the city of New York with thecommissioner of finance, or (b) the court which issued such order, or (c) the sheriff in whosecustody the principal has been committed. Upon proof of the deposit of the designated amount theprincipal must be forthwith released from custody.

2. The person posting cash bail must complete and sign a form which states (a) the name, residentialaddress and occupation of each person posting cash bail; and (b) the title of the criminal action orproceeding involved; and (c) the offense or offenses which are the subjects of the action orproceeding involved, and the status of such action or proceeding; and (d) the name of the principaland the nature of his involvement in or connection with such action or proceeding; and (e) that theperson or persons posting cash bail undertake that the principal will appear in such action orproceeding whenever required and will at all times render himself amenable to the orders andprocesses of the court; and (f) the date of the principal's next appearance in court; and (g) anacknowledgment that the cash bail will be forfeited if the principal does not comply with anyrequirement or order of process to appear in court; and (h) the amount of money posted as cash bail.

3. Money posted as cash bail is and shall remain the property of the person posting it unlessforfeited to the court.

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by Peter Preiser

Subdivision one of this section, derived from the former Code of Criminal Procedure (§ 586),permits the defendant to post cash bail irrespective of the form of bail specified in the order of thecourt under CPL § 520.10.

Although the last sentence in subdivision one provides that the principal is to be released forthwithupon proof that cash bail in the designated amount has been deposited, the statutory structureimplies the preliminary step of court approval for proof of the deposit as a prerequisite to issuanceof a certificate required to authorize release of the principal (see CPL § 510.40[3]). Accordingly,approval of the bail requires the court to ascertain whether the statement required by subdivisiontwo was properly executed and, where the cash bail is not offered by the principal, the court willconsider the relationship between the principal and the person who offers it, to determine whetherthere is sufficient incentive for the principal to avoid forfeiture of the third party's money byappearing when required. See e.g., People v. Baker, 188 Misc.2d 821, 729 N.Y.S.2d 580 (Sup. Ct.NY Co. 2001); People v. McIntyre, 168 Misc.2d 556, 640 N.Y.S.2d 286 (Sup. Kings Co. 1996).

Additionally, the People may challenge the posting of the bail by presenting reasonable cause tobelieve the principal or a third party offering the bail is not in lawful possession of the money, orthat it constitutes the fruits of unlawful conduct, in which case the court should conduct a hearingon those issues (see CPL § 520.30). Subdivision two of this section and CPL § 520.30 authorizinginquiry by the court into the source and background of the indemnitor, were part of the samelegislative enactment (L.1984, c. 384) and thus should be construed together. See People v. Pullara,172 Misc.2d 63, 656 N.Y.S.2d 832 (Sup. Ct., Kings Co. 1997); cf., Matter of Johnson v. Crane, 171A.D.2d 537, 568 N.Y.S.2d 22 (1st Dept. 1991)

Subdivision three was enacted at the same time as subdivision two to modernize provisions relatingto the rights and obligations of cash bail depositors by providing them with the same rights andobligations as bond obligors. Thus, while under prior law when cash bail was deposited by a thirdparty, it was deemed the property of the principal and could therefore be applied toward payment ofany fine imposed upon the principal (People ex rel. Gilbert v. Laidlaw, 1886, 102 N.Y. 588, 7 N.E.910), now cash bail remains the property of the person who posted it, unless forfeited to the court.As one consequence a cash bail depositor now has the same right to surrender the principal as abond obligor (see CPL § 520.40). For an analysis of the preexisting case law relating to differencesbetween the rights and duties pertaining to bail bonds as distinguished from cash bail, see People v.Castro, 119 Misc.2d 787, 464 N.Y.S.2d 650 (S.Ct. Kings Co. 1983).

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§ 520.20 Bail and bail bonds; posting of bail bond and justifying affidavits; formand contents thereof

1. (a) Except as provided in paragraph (b) when a bail bond is to be posted in satisfaction of bail,the obligor or obligors must submit to the court a bail bond in the amount fixed, executed in theform prescribed in subdivision two, accompanied by a justifying affidavit of each obligor, executedin the form prescribed in subdivision four.

(b) When a bail bond is to be posted in satisfaction of bail fixed for a defendant charged byinformation or simplified information or prosecutor's information with one or more trafficinfractions and no other offense, the defendant may submit to the court, with the consent of thecourt, an insurance company bail bond covering the amount fixed, executed in a form prescribed bythe superintendent of financial services.

2. Except as provided in paragraph (b) of subdivision one, a bail bond must be subscribed andsworn to by each obligor and must state:

(a) The name, residential address and occupation of each obligor; and

(b) The title of the criminal action or proceeding involved; and

(c) The offense or offenses which are the subjects of the action or proceeding involved, and thestatus of such action or proceeding; and

(d) The name of the principal and the nature of his involvement in or connection with such action orproceeding; and

(e) That the obligor, or the obligors jointly and severally, undertake that the principal will appear insuch action or proceeding whenever required and will at all times render himself amenable to theorders and processes of the court; and

(f) That in the event that the principal does not comply with any such requirement, order or process,such obligor or obligors will pay to the people of the state of New York a designated sum of moneyfixed by the court.

3. A bail bond posted in the course of a criminal action is effective and binding upon the obligor orobligors until the imposition of sentence or other termination of the action, regardless of whetherthe action is dismissed in the local criminal court after an indictment on the same charge or chargesby a superior court, and regardless of whether such action is partially conducted or prosecuted in acourt or courts other than the one in which the action was pending when such bond was posted,unless prior to such termination such order of bail is vacated or revoked or the principal issurrendered, or unless the terms of such bond expressly limit its effectiveness to a lesser period;provided, however, the effectiveness of such bond may only be limited to a lesser period if theobligor or obligors submit notice of the limitation to the court and the district attorney not less thanfourteen days before effectiveness ends.

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4. A justifying affidavit must be subscribed and sworn to by the obligor-affiant and must state hisname, residential address and occupation. Depending upon the kind of bail bond which it justifies,such affidavit must contain further statements as follows:

(a) An affidavit justifying an insurance company bail bond must state:

(i) The amount of the premium paid to the obligor; and

(ii) All security and all promises of indemnity received by the surety-obligor in connection with itsexecution of the bond, and the name, occupation and residential and business addresses of everyperson who has given any such indemnifying security or promise.

An action by the surety-obligor against an indemnitor, seeking retention of security deposited by thelatter with the former or enforcement of any indemnity agreement of a kind described in this sub-paragraph, will not lie except with respect to agreements and security specified in the justifying affidavit.

(b) An affidavit justifying a secured bail bond must state every item of personal property depositedand of real property pledged as security, the value of each such item, and the nature and amount ofevery lien or encumbrance thereon.

(c) An affidavit justifying a partially secured bail bond or an unsecured bail bond must state theplace and nature of the obligor-affiant's business or employment, the length of time he has beenengaged therein, his income during the past year, and his average income over the past five years.

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by Peter Preiser

The statutory requisites for the form of a bail bond and the justifying affidavit that must besubmitted with it to establish the particulars concerning the nature and source of the security and/orpromise of indemnity that justifies the obligation undertaken by the obligor evidenced by the bondare specified in this section

Subdivision two sets forth the provisions required in the bond itself and subdivision four sets forththe allegations required in justifying affidavits, all of which are subject to examination forsufficiency pursuant to CPL § 520.30.

Paragraph (b) of subdivision one authorizes a more simple alternative procedure in the case ofbonds posted for traffic infractions, provided the court consents to the use of that alternative.

Subdivision three deals with the problem of whether the bond covers all aspects of the case--e.g.,whether a bond posted in a local criminal court remains in effect when jurisdiction is transferred toa superior court after indictment--and is designed to provide that the bond follow the criminal actionthrough all phases and courts until final termination. Note though that the obligor may neverthelesslimit the temporal duration of the bond by inserting a specific time limit in fine print in the text ofthe bond. But in such case advance notice of the termination of effectiveness must be given to thecourt and the district attorney not less than fourteen days before it lapses.

Subdivision four, which is the substantive heart of the requirements, provides specifications thatwill enable the court to determine whether security posted was in rightful possession of theprincipal or the obligor or whether the relationship between an obligor and the principal is sufficientfor assurance of the principal's appearance in court when required. See Practice Commentaries forCPL §§ 520.15 and 520.30).

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§ 520.30 Bail and bail bonds; examination as to sufficiency

1. Following the posting of a bail bond and the justifying affidavit or affidavits or the posting ofcash bail, the court may conduct an inquiry for the purpose of determining the reliability of theobligors or person posting cash bail, the value and sufficiency of any security offered, and whetherany feature of the undertaking contravenes public policy; provided that before undertaking aninquiry, of a person posting cash bail the court, after application of the district attorney, must havehad reasonable cause to believe that the person posting cash bail is not in rightful possession ofmoney posted as cash bail or that such money constitutes the fruits of criminal or unlawful conduct.The court may inquire into any matter stated or required to be stated in the justifying affidavits, andmay also inquire into other matters appropriate to the determination, which include but are notlimited to the following:

(a) The background, character and reputation of any obligor, and, in the case of an insurancecompany bail bond, the qualifications of the surety-obligor and its executing agent; and

(b) The source of any money or property deposited by any obligor as security, and whether any suchmoney or property constitutes the fruits of criminal or unlawful conduct; and

(c) The source of any money or property delivered or agreed to be delivered to any obligor asindemnification on the bond, and whether any such money or property constitutes the fruits ofcriminal or unlawful conduct; and

(d) The background, character and reputation of any person who has indemnified or agreed toindemnify an obligor upon the bond; and whether any such indemnitor, not being licensed by thesuperintendent of financial services in accordance with the insurance law, has within a period ofone month prior to such indemnity transaction given indemnification or security for like purpose inmore than two cases not arising out of the same transaction; and

(e) The source of any money posted as cash bail, and whether any such money constitutes the fruitsof criminal or unlawful conduct; and

(f) The background, character and reputation of the person posting cash bail.

2. Upon such inquiry, the court may examine, under oath or otherwise, the obligors and any otherpersons who may possess material information. The district attorney has a right to attend suchinquiry, to call witnesses and to examine any witness in the proceeding. The court may, uponapplication of the district attorney, adjourn the proceeding for a reasonable period to allow him toinvestigate the matter.

3. At the conclusion of the inquiry, the court must issue an order either approving or disapprovingthe bail.

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by Peter Preiser

This section gives the court broad authority to examine the bail, the reliability of the obligor and thesource of any security posted or pledged to determine whether the obligation is in form sufficient tocompensate the state for default, as well as whether the security posted or pledged constitutes thefruits of criminal conduct or otherwise contravenes public policy.

Where cash bail is posted, if the district attorney furnishes the court with reasonable cause tobelieve the person posting the bail is not in rightful possession of the funds or that such moneyconstitutes the fruits of criminal or unlawful conduct, the court may hold a hearing to inquire intowhether there is reasonable cause to support the allegations. Inquiry also may be appropriate wherethe obligor is not the defendant to determine whether the relationship between the two is such as toassure defendant's appearance in court when required. See People v. Baker, 188 Misc.2d 821, 729N.Y.S.2d 580 (Sup. Ct. Kings Co. 2001).

The argument sometimes is made that where an insurance company bail bond is posted the court'sinquiry must be limited to the question of whether the obligation is in proper form to compensatethe state for default--i.e., authorization of the agent and the qualifications of the company--becausepresumably a qualified insurance company can be relied upon for payment, if due. However, thestatute vests the court with substantial discretion to implement public policy in approving bail, andthus the court may inquire into the source of the collateral furnished to the insurance company.Johnson v. Crane, 171 A.D.2d 537, 568 N.Y.S.2d 22 (1st Dept. 1991), but not the company'sbusiness judgment in accepting the collateral (see People ex. Rel. Ocasio v. Horn, 56 A.D.3d 806,870 N.Y.S.2d 45 (2d Dept. 2008). Note too, that insurance company bonds are sometimes offered asa subterfuge for posting cash or other assets that would have been rejected by the court as fruits ofcriminal conduct or for some other policy reason. Johnson v. Crane, supra; People v. McIntyre, 168Misc.2d 556, 640 N.Y.S.2d 386 (Sup. Ct. Kings Co. 1996). Obviously, if the court were unable tomake such inquiry in the case of insurance company bonds, the payment of a bond premium wouldsimply represent nothing more than a fee to enable a defendant to circumvent investigation into thesource of and arrangements for the security.

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§ 520.40 Transfer of cash bail from local criminal court to superior court

When a local criminal court acquires control over the person of an accused and such courtdesignates the amount of bail that the accused may post and such bail is posted in cash andsubsequently the accused is arraigned in superior court where bail is fixed by such court, theaccused may request that the cash bail posted in the local criminal court be transferred to thesuperior court. Notice of such request must be given to the person who posted cash bail. Upon sucha request the superior court shall make an order directing the local criminal court to transfer thecash bail that it holds to the superior court for use in the superior court. If there is an overage, thesuperior court shall order it be paid over to the person who posted the cash bail in the local criminalcourt. If there is a deficiency, the accused shall post additional bail as directed by the superior court.


by Peter Preiser

This section, added in 1974, is simply an administrative device for the transfer of cash bail postedwith a local criminal court (see CPL § 520.15[1]) to the superior court that assumes jurisdiction in acase where the defendant subsequently is indicted on charges originated in the local criminal court.Note in this connection that when the defendant is arraigned in the superior court, the superiorcourt's bail order may be in the form of a direction continuing the local criminal court's previousbail order (see CPL § 530.40[2]).

In any event, irrespective of whether the superior court continues the previous order or issues a newone, the defendant has an absolute right to have the bail transferred, and the superior court isrequired to order the transfer upon defendant's request for same. The section was amended in 1984as part of a comprehensive overhaul of provisions relating to cash bail to require that notice of thedefendant's request be given to the person who posted the cash bail. Presumably proof that notice ofthe request has been given must accompany the request for the order (although concededly thestatute is silent on responsibility for the notice and the timing).

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§ 530.10 Order of recognizance or bail; in general

Under circumstances prescribed in this article, a court, upon application of a defendant chargedwith or convicted of an offense, is required or authorized to order bail or recognizance for therelease or prospective release of such defendant during the pendency of either:

1. A criminal action based upon such charge; or

2. An appeal taken by the defendant from a judgment of conviction or a sentence or from an orderof an intermediate appellate court affirming or modifying a judgment of conviction or a sentence.


by Peter Preiser

As pointed out in the Practice Commentary for CPL § 510.30, there is no constitutional right torecognizance or bail. To the extent that the CPL authorizes courts to exercise discretion in selectionof the appropriate securing order--i.e., selecting recognizance, bail and the amount and formthereof, or commitment-the criteria are set forth in CPL § 510.30.

The present section introduces an article that provides instruction as to when the court is required,authorized or forbidden to order recognizance or bail. Where the court is required or forbidden toorder recognizance or bail, there is of course no discretion with respect to the matter of whethercommitment is the appropriate form of securing order. However, even in cases where recognizanceor bail is mandatory, if the court fixes bail and the principal is unable to meet the terms thereof, theprincipal will be committed (see CPL § 510.40[3]).

Note that the provisions of this article apply both to pending actions and appeals after conviction.

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§ 530.11 Procedures for family offense matters

1. Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over anyproceeding concerning acts which would constitute disorderly conduct, harassment in the firstdegree, harassment in the second degree, aggravated harassment in the second degree, sexualmisconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degreeas set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree,stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminalmischief, menacing in the second degree, menacing in the third degree, reckless endangerment,strangulation in the first degree, strangulation in the second degree, criminal obstruction ofbreathing or blood circulation, assault in the second degree, assault in the third degree or anattempted assault between spouses or former spouses, or between parent and child or betweenmembers of the same family or household except that if the respondent would not be criminallyresponsible by reason of age pursuant to section 30.00 of the penal law, then the family court shallhave exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election toproceed in family court, the criminal court shall not be divested of jurisdiction to hear a familyoffense proceeding pursuant to this section. For purposes of this section, “disorderly conduct”includes disorderly conduct not in a public place. For purposes of this section, “members of thesame family or household” with respect to a proceeding in the criminal courts shall mean the following:

(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they still reside in the samehousehold;

(d) persons who have a child in common, regardless of whether such persons have been married orhave lived together at any time; and

(e) persons who are not related by consanguinity or affinity and who are or have been in an intimaterelationship regardless of whether such persons have lived together at any time. Factors the courtmay consider in determining whether a relationship is an “intimate relationship” include but are notlimited to: the nature or type of relationship, regardless of whether the relationship is sexual innature; the frequency of interaction between the persons; and the duration of the relationship.Neither a casual acquaintance nor ordinary fraternization between two individuals in business orsocial contexts shall be deemed to constitute an “intimate relationship”.

2. Information to petitioner or complainant. The chief administrator of the courts shall designate theappropriate probation officers, warrant officers, sheriffs, police officers, district attorneys or anyother law enforcement officials, to inform any petitioner or complainant bringing a proceedingunder this section before such proceeding is commenced, of the procedures available for theinstitution of family offense proceedings, including but not limited to the following:

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(a) That there is concurrent jurisdiction with respect to family offenses in both family court and thecriminal courts;

(b) That a family court proceeding is a civil proceeding and is for the purpose of attempting to stopthe violence, end family disruption and obtain protection. That referrals for counseling, orcounseling services, are available through probation for this purpose;

(c) That a proceeding in the criminal courts is for the purpose of prosecution of the offender and canresult in a criminal conviction of the offender;

(d) That a proceeding or action subject to the provisions of this section is initiated at the time of thefiling of an accusatory instrument or family court petition, not at the time of arrest, or request forarrest, if any;

(e) Repealed.

(f) That an arrest may precede the commencement of a family court or a criminal court proceeding,but an arrest is not a requirement for commencing either proceeding.

(g) Repealed by L.1997, c, 186, § 7, eff. July 8, 1997.

(h) At such time as the complainant first appears before the court on a complaint or information, thecourt shall advise the complainant that the complainant may: continue with the proceeding incriminal court; or have the allegations contained therein heard in a family court proceeding; orproceed concurrently in both criminal and family court. Notwithstanding a complainant's election toproceed in family court, the criminal court shall not be divested of jurisdiction to hear a familyoffense proceeding pursuant to this section;

(i) Nothing herein shall be deemed to limit or restrict complainant's rights to proceed directly andwithout court referral in either a criminal or family court, or both, as provided for in section onehundred fifteen of the family court act and section 100.07 of this chapter;

(j) Repealed by L.1997, c, 186, § 9, eff. July 8, 1997.

2-a. Upon the filing of an accusatory instrument charging a crime or violation described insubdivision one of this section between members of the same family or household, as such terms aredefined in this section, or as soon as the complainant first appears before the court, whichever issooner, the court shall advise the complainant of the right to proceed in both the criminal and familycourts, pursuant to section 100.07 of this chapter.3. Official responsibility. No official or other person designated pursuant to subdivision two of thissection shall discourage or prevent any person who wishes to file a petition or sign a complaintfrom having access to any court for that purpose.

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4. When a person is arrested for an alleged family offense or an alleged violation of an order ofprotection or temporary order of protection or arrested pursuant to a warrant issued by the supremeor family court, and the supreme or family court, as applicable, is not in session, such person shallbe brought before a local criminal court in the county of arrest or in the county in which suchwarrant is returnable pursuant to article one hundred twenty of this chapter. Such local criminalcourt may issue any order authorized under subdivision eleven of section 530.12 of this article,section one hundred fifty-four-d or one hundred fifty-five of the family court act or subdivisionthree-b of section two hundred forty or subdivision two-a of section two hundred fifty-two of thedomestic relations law, in addition to discharging other arraignment responsibilities as set forth inthis chapter. In making such order, the local criminal court shall consider the bail recommendation,if any, made by the supreme or family court as indicated on the warrant or certificate of warrant.Unless the petitioner or complainant requests otherwise, the court, in addition to scheduling furthercriminal proceedings, if any, regarding such alleged family offense or violation allegation, shallmake such matter returnable in the supreme or family court, as applicable, on the next day suchcourt is in session.

5. Filing and enforcement of out-of-state orders of protection. A valid order of protection ortemporary order of protection issued by a court of competent jurisdiction in another state, territorialor tribal jurisdiction shall be accorded full faith and credit and enforced as if it were issued by acourt within the state for as long as the order remains in effect in the issuing jurisdiction inaccordance with sections two thousand two hundred sixty-five and two thousand two hundred sixty-six of title eighteen of the United States Code.

(a) An order issued by a court of competent jurisdiction in another state, territorial or tribaljurisdiction shall be deemed valid if:

(i) the issuing court had personal jurisdiction over the parties and over the subject matter under thelaw of the issuing jurisdiction;

(ii) the person against whom the order was issued had reasonable notice and an opportunity to beheard prior to issuance of the order; provided, however, that if the order was a temporary order ofprotection issued in the absence of such person, that notice had been given and that an opportunityto be heard had been provided within a reasonable period of time after the issuance of the order; and

(iii) in the case of orders of protection or temporary orders of protection issued against both apetitioner, plaintiff or complainant and respondent or defendant, the order or portion thereof soughtto be enforced was supported by: (A) a pleading requesting such order, including, but not limited to,a petition, cross-petition or counterclaim; and (B) a judicial finding that the requesting party isentitled to the issuance of the order which may result from a judicial finding of fact, judicialacceptance of an admission by the party against whom the order was issued or judicial finding thatthe party against whom the order was issued had given knowing, intelligent and voluntary consentto its issuance.

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(b) Notwithstanding the provisions of article fifty-four of the civil practice law and rules, an orderof protection or temporary order of protection issued by a court of competent jurisdiction in anotherstate, territorial or tribal jurisdiction, accompanied by a sworn affidavit that upon information andbelief such order is in effect as written and has not been vacated or modified, may be filed withoutfee with the clerk of the court, who shall transmit information regarding such order to the statewideregistry of orders of protection and warrants established pursuant to section two hundred twenty-one-a of the executive law; provided, however, that such filing and registry entry shall not berequired for enforcement of the order.

6. Notice. Every police officer, peace officer or district attorney investigating a family offenseunder this article shall advise the victim of the availability of a shelter or other services in thecommunity, and shall immediately give the victim written notice of the legal rights and remediesavailable to a victim of a family offense under the relevant provisions of the criminal procedurelaw, the family court act and the domestic relations law. Such notice shall be prepared in Spanishand English and if necessary, shall be delivered orally, and shall include but not be limited to thefollowing statement:

“If you are the victim of domestic violence, you may request that the officer assist in providing foryour safety and that of your children, including providing information on how to obtain a temporaryorder of protection. You may also request that the officer assist you in obtaining your essentialpersonal effects and locating and taking you, or assist in making arrangements to take you, and yourchildren to a safe place within such officer's jurisdiction, including but not limited to a domesticviolence program, a family member's or a friend's residence, or a similar place of safety. When theofficer's jurisdiction is more than a single county, you may ask the officer to take you or makearrangements to take you and your children to a place of safety in the county where the incidentoccurred. If you or your children are in need of medical treatment, you have the right to request thatthe officer assist you in obtaining such medical treatment. You may request a copy of any incidentreports at no cost from the law enforcement agency. You have the right to seek legal counsel ofyour own choosing and if you proceed in family court and if it is determined that you cannot affordan attorney, one must be appointed to represent you without cost to you.

You may ask the district attorney or a law enforcement officer to file a criminal complaint. You alsohave the right to file a petition in the family court when a family offense has been committedagainst you. You have the right to have your petition and request for an order of protection filed onthe same day you appear in court, and such request must be heard that same day or the next daycourt is in session. Either court may issue an order of protection from conduct constituting a familyoffense which could include, among other provisions, an order for the respondent or defendant tostay away from you and your children. The family court may also order the payment of temporarychild support and award temporary custody of your children. If the family court is not in session,you may seek immediate assistance from the criminal court in obtaining an order of protection.

The forms you need to obtain an order of protection are available from the family court and thelocal criminal court (the addresses and telephone numbers shall be listed). The resources availablein this community for information relating to domestic violence, treatment of injuries, and places of

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safety and shelters can be accessed by calling the following 800 numbers (the statewide English andSpanish language 800 numbers shall be listed and space shall be provided for local domesticviolence hotline telephone numbers).

Filing a criminal complaint or a family court petition containing allegations that are knowingly falseis a crime.”

The division of criminal justice services in consultation with the state office for the prevention ofdomestic violence shall prepare the form of such written notice consistent with provisions of thissection and distribute copies thereof to the appropriate law enforcement officials pursuant tosubdivision nine of section eight hundred forty-one of the executive law.

Additionally, copies of such notice shall be provided to the chief administrator of the courts to bedistributed to victims of family offenses through the criminal court at such time as such persons firstcome before the court and to the state department of health for distribution to all hospitals definedunder article twenty-eight of the public health law. No cause of action for damages shall arise infavor of any person by reason of any failure to comply with the provisions of this subdivisionexcept upon a showing of gross negligence or willful misconduct.

7. Rules of court regarding concurrent jurisdiction. The chief administrator of the courts, pursuantto paragraph (e) of subdivision two of section two hundred twelve of the judiciary law, shallpromulgate rules to facilitate record sharing and other communication between the criminal andfamily courts, subject to applicable provisions of this chapter and the family court act pertaining tothe confidentiality, expungement and sealing of records, when such courts exercise concurrentjurisdiction over family offense proceedings.

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by Peter Preiser

This section was enacted in 1980 to make it clear to victims of family offenses that they have theoption of proceeding either civilly in the Family court or criminally in a criminal court. Basically itwas intended to enhance public perception that a family offense could be commenced in eitherforum and thus to supplement limited criminal court jurisdiction over such offenses conferred in1977 by CPL § 100.07. The jurisdictional provisions of the section were taken almost verbatimfrom the Family Court Act (§ 812) and the section does not to this day contain any substantiveprovisions apart from the duty to inform victims of the availability of choosing a forum. Thesubstantive provisions regarding criminal court orders of protection on arraignment for familyoffense cases, formerly in this section, were transferred through renumbering to be CPL § 530.12.Accordingly, this section functions as a jurisdictional and information imparting device.

A thumbnail history of the development of co-jurisdiction over family offenses starting with theenactment of the Family Court Act in 1962 may be helpful in understanding both this section andCPL § 530.12.

Historically, the present criminal court statutory structure for dealing with family offenses evolvedin three stages after the 1962 enactment of the Family Court Act. Under the first stage, the FamilyCourt was given exclusive original jurisdiction over acts which would constitute disorderly conductor assault between members of the same family or household (Family Court Act of 1962, § 812). Acriminal complaint charging any such offense had to be transferred from the criminal court to theFamily Court (id., § 813) to be processed to completion there. The only way in which a familyoffense could be prosecuted in a criminal court was upon transfer in the discretion of the FamilyCourt, if a judge of that court concluded that the processes of the Family Court were inappropriate(id., § 814). By subsequent legislation other offenses were added (see e.g., L.1969, c. 736), but thebasic structure remained in place until 1977.

In the second stage, which lasted from 1977 to 1995, criminal courts were given concurrent originaljurisdiction over family offenses (CPL § 100.07) and concomitantly were authorized to issue ordersof protection in family offense cases (the section that now is CPL § 530.12 was enacted as §530.11) and the complainant was required to elect between the two. Under this structure thecomplainant could file in either court and switch from one to the other, but the case could not beprocessed by both courts. The election to switch had to be exercised within seventy-two hours afterfiling (later changed to three days) and at the expiration of that period the choice became final. Thecase could proceed to completion in either court, but not both (see Family Court Act § 821 and CPL§ 100.07 (as added in 1977 and amended in 1978). As above noted, the present section 530.11 wasinserted in 1980 to reinforce the precept that criminal courts have concurrent family offensejurisdiction with the Family Court, so that those offenses should not routinely be considered simplyas matters to be brought in or referred to the Family Court.

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The third and present stage became effective January 1, 1995, as a component of sweepinglegislation captioned “The Family Protection and Domestic Violence Intervention Act of 1994”(Chapter 222). An action based upon a family offense--as defined in subdivision one--henceforthcould not only be commenced in either a criminal court or the Family Court, but also could becommenced in both, and then may proceed to adjudication in both in accordance with the respectiveprocedures applicable to those courts. Accordingly, when the complainant first appears in eithercourt he or she is advised of the right to proceed in that court or the other or both (see CPL § 530.11[2(h)(I)], Family Court Act § 821-a[5]). Then, in 1997 criminal courts were granted jurisdiction toissue Family Court orders of protection in cases where a person is arrested for a family offense orSupreme Court orders of protection where a person is arrested on a Supreme Court warrant ofarrest, provided the other court is not in session (see subd. 4); and in 1998 jurisdiction wasexpanded to include orders of protection issued by out-of-state courts (subd. 5).

Since enactment this section has been amended virtually every year and in some years twice. Thelatest amendment was in 2008 and if past history is any guide, additional amendments may wellfollow. Basically, the amendments broadened the types of offenses and the scope of therelationships between offender and victim that are deemed to be within the concept of familyoffenses. By-and-large they were inserted or added as additional needs or gaps in coverage came tothe attention of the Legislature. For example, in 2007, criminal mischief was added to make it clearthat joint ownership by a family member is no defense to destruction of a victim's property, and in2008 the scope of persons covered was expanded to include persons not residing in the samehousehold who have been in intimate relationship, apparently to include dating couples.

In sum, apart from the provisions dealing with criminal court jurisdiction over family offenses, thebulk of this section is devoted to administrative matters designed to assure that complainants areinformed of their options and rights.

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§ 530.12 Protection for victims of family offenses

1. When a criminal action is pending involving a complaint charging any crime or violationbetween spouses, former spouses, parent and child, or between members of the same family orhousehold, as members of the same family or household are defined in subdivision one of section530.11 of this article, the court, in addition to any other powers conferred upon it by this chaptermay issue a temporary order of protection in conjunction with any securing order committing thedefendant to the custody of the sheriff or as a condition of any order of recognizance or bail or anadjournment in contemplation of dismissal. In addition to any other conditions, such an order mayrequire the defendant:

(a) to stay away from the home, school, business or place of employment of the family or householdmember or of any designated witness, provided that the court shall make a determination, and shallstate such determination in a written decision or on the record, whether to impose a conditionpursuant to this paragraph, provided further, however, that failure to make such a determinationshall not affect the validity of such temporary order of protection. In making such determination,the court shall consider, but shall not be limited to consideration of, whether the temporary order ofprotection is likely to achieve its purpose in the absence of such a condition, conduct subject toprior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcoholabuse, and access to weapons;

(b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, tovisit the child at stated periods;

(c) to refrain from committing a family offense, as defined in subdivision one of section 530.11 ofthis article, or any criminal offense against the child or against the family or household member oragainst any person to whom custody of the child is awarded, or from harassing, intimidating orthreatening such persons;

(d) to refrain from acts of commission or omission that create an unreasonable risk to the health,safety and welfare of a child, family or household member's life or health;

(e) to permit a designated party to enter the residence during a specified period of time in order toremove personal belongings not in issue in this proceeding or in any other proceeding or actionunder this chapter, the family court act or the domestic relations law;

(f) 1. to refrain from intentionally injuring or killing, without justification, any companion animalthe defendant knows to be owned, possessed, leased, kept or held by the victim or a minor childresiding in the household.

2. “Companion animal”, as used in this section, shall have the same meaning as in subdivision fiveof section three hundred fifty of the agriculture and markets law.

(g) The court may issue an order, pursuant to section two hundred twenty-seven-c of the realproperty law, authorizing the party for whose benefit any order of protection has been issued toterminate a lease or rental agreement pursuant to section two hundred twenty-seven-c of the realproperty law.

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2. Notwithstanding any other provision of law, a temporary order of protection issued or continuedby a family court pursuant to section eight hundred thirteen of the family court act shall continue ineffect, absent action by the appropriate criminal court pursuant to subdivision three of this section,until the defendant is arraigned upon an accusatory instrument filed pursuant to section eighthundred thirteen of the family court act in such criminal court.

3. The court may issue a temporary order of protection ex parte upon the filing of an accusatoryinstrument and for good cause shown. When a family court order of protection is modified, thecriminal court shall forward a copy of such modified order to the family court issuing the originalorder of protection; provided, however, that where a copy of the modified order is transmitted to thefamily court by facsimile or other electronic means, the original copy of such modified order andaccompanying affidavit shall be forwarded immediately thereafter.

3-a. Emergency powers when family court not in session; issuance of temporary orders ofprotection. Upon the request of the petitioner, a local criminal court may on an ex parte basis issue atemporary order of protection pending a hearing in family court, provided that a sworn affidavit,verified in accordance with subdivision one of section 100.30 of this chapter, is submitted: (i)alleging that the family court is not in session; (ii) alleging that a family offense, as defined insubdivision one of section eight hundred twelve of the family court act and subdivision one ofsection 530.11 of this article, has been committed; (iii) alleging that a family offense petition hasbeen filed or will be filed in family court on the next day the court is in session; and (iv) showinggood cause. Upon appearance in a local criminal court, the petitioner shall be advised that he or shemay continue with the proceeding either in family court or upon the filing of a local criminal courtaccusatory instrument in criminal court or both. Upon issuance of a temporary order of protectionwhere petitioner requests that it be returnable in family court, the local criminal court shall transferthe matter forthwith to the family court and shall make the matter returnable in family court on thenext day the family court is in session, or as soon thereafter as practicable, but in no event morethan four calendar days after issuance of the order. The local criminal court, upon issuing atemporary order of protection returnable in family court pursuant to this subdivision, shallimmediately forward, in a manner designed to insure arrival before the return date set in the order, acopy of the temporary order of protection and sworn affidavit to the family court and shall provide acopy of such temporary order of protection to the petitioner; provided, however, that where a copyof the temporary order of protection and affidavit are transmitted to the family court by facsimile orother electronic means, the original order and affidavit shall be forwarded to the family courtimmediately thereafter. Any temporary order of protection issued pursuant to this subdivision shallbe issued to the respondent, and copies shall be filed as required in subdivisions six and eight of thissection for orders of protection issued pursuant to this section. Any temporary order of protectionissued pursuant to this subdivision shall plainly state the date that such order expires which, in thecase of an order returnable in family court, shall be not more than four calendar days after itsissuance, unless sooner vacated or modified by the family court. A petitioner requesting atemporary order of protection returnable in family court pursuant to this subdivision in a case inwhich a family court petition has not been filed shall be informed that such temporary order ofprotection shall expire as provided for herein, unless the petitioner files a petition pursuant tosubdivision one of section eight hundred twenty-one of the family court act on or before the returndate in family court and the family court issues a temporary order of protection or order ofprotection as authorized under article eight of the family court act. Nothing in this subdivision shalllimit or restrict the petitioner's right to proceed directly and without court referral in either acriminal or family court, or both, as provided for in section one hundred fifteen of the family courtact and section 100.07 of this chapter.

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3-b. Emergency powers when family court not in session; modifications of orders of protection ortemporary orders of protection. Upon the request of the petitioner, a local criminal court may on anex parte basis modify a temporary order of protection or order of protection which has been issuedunder article four, five, six or eight of the family court act pending a hearing in family court,provided that a sworn affidavit verified in accordance with subdivision one of section 100.30 of thischapter is submitted: (i) alleging that the family court is not in session and (ii) showing good cause,including a showing that the existing order is insufficient for the purposes of protection of thepetitioner, the petitioner's child or children or other members of the petitioner's family or household.The local criminal court shall make the matter regarding the modification of the order returnable infamily court on the next day the family court is in session, or as soon thereafter as practicable, butin no event more than four calendar days after issuance of the modified order. The court shallimmediately forward a copy of the modified order, if any, and sworn affidavit to the family courtand shall provide a copy of such modified order, if any, and affidavit to the petitioner; provided,however, that where copies of such modified order and affidavit are transmitted to the family courtby facsimile or other electronic means, the original copies of such modified order and affidavit shallbe forwarded to the family court immediately thereafter. Any modified temporary order ofprotection or order of protection issued pursuant to this subdivision shall be issued to therespondent and copies shall be filed as required in subdivisions six and eight of this section fororders of protection issued pursuant to this section.

4. The court may issue or extend a temporary order of protection ex parte or on noticesimultaneously with the issuance of a warrant for the arrest of defendant. Such temporary order ofprotection may continue in effect until the day the defendant subsequently appears in court pursuantto such warrant or voluntarily or otherwise.

5. [Eff. until Sept. 1, 2013, pursuant to L.1995, c. 3, § 74, par. d. See, also, opening paragraphbelow.] Upon sentencing on a conviction for any crime or violation between spouses, between aparent and child, or between members of the same family or household as defined in subdivisionone of section 530.11 of this article, the court may in addition to any other disposition, including aconditional discharge or youthful offender adjudication, enter an order of protection. Where atemporary order of protection was issued, the court shall state on the record the reasons for issuingor not issuing an order of protection. The duration of such an order shall be fixed by the court and:(A) in the case of a felony conviction, shall not exceed the greater of: (i) eight years from the dateof such sentencing, or (ii) eight years from the date of the expiration of the maximum term of anindeterminate or the term of a determinate sentence of imprisonment actually imposed; or (B) in thecase of a conviction for a class A misdemeanor, shall not exceed the greater of: (i) five years fromthe date of such sentencing, or (ii) five years from the date of the expiration of the maximum termof a definite or intermittent term actually imposed; or (c) in the case of a conviction for any otheroffense, shall not exceed the greater of: (i) two years from the date of sentencing, or (ii) two yearsfrom the date of the expiration of the maximum term of a definite or intermittent term actuallyimposed. For purposes of determining the duration of an order of protection entered pursuant to thissubdivision, a conviction shall be deemed to include a conviction that has been replaced by ayouthful offender adjudication. In addition to any other conditions, such an order may require thedefendant:

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5. [Eff. Sept. 1, 2013, pursuant to L.1995, c. 3, § 74, par. d. See, also, opening paragraph above.]Upon sentencing on a conviction for any crime or violation between spouses, between a parent andchild, or between members of the same family or household as defined in subdivision one of section530.11 of this article, the court may in addition to any other disposition, including a conditionaldischarge or youthful offender adjudication, enter an order of protection. Where a temporary orderof protection was issued, the court shall state on the record the reasons for issuing or not issuing anorder of protection. The duration of such an order shall be fixed by the court and, in the case of afelony conviction, shall not exceed the greater of: (i) five years from the date of such sentencing, or(ii) three years from the date of the expiration of the maximum term of an indeterminate sentence ofimprisonment actually imposed; or in the case of a conviction for a class A misdemeanor, shall notexceed three years from the date of such sentencing; or in the case of a conviction for any otheroffense, shall not exceed one year from the date of sentencing. For purposes of determining theduration of an order of protection entered pursuant to this subdivision, a conviction shall be deemedto include a conviction that has been replaced by a youthful offender adjudication. In addition toany other conditions, such an order may require the defendant: :

(a) to stay away from the home, school, business or place of employment of the family or householdmember, the other spouse or the child, or of any witness designated by the court, provided that thecourt shall make a determination, and shall state such determination in a written decision or on therecord, whether to impose a condition pursuant to this paragraph, provided further, however, thatfailure to make such a determination shall not affect the validity of such order of protection. Inmaking such determination, the court shall consider, but shall not be limited to consideration of,whether the order of protection is likely to achieve its purpose in the absence of such a condition,conduct subject to prior orders of protection, prior incidents of abuse, extent of past or presentinjury, threats, drug or alcohol abuse, and access to weapons;

(b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, tovisit the child at stated periods;

(c) to refrain from committing a family offense, as defined in subdivision one of section 530.11 ofthis article, or any criminal offense against the child or against the family or household member oragainst any person to whom custody of the child is awarded, or from harassing, intimidating orthreatening such persons; or

(d) to refrain from acts of commission or omission that create an unreasonable risk to the health,safety and welfare of a child, family or household member's life or health;

(e) to permit a designated party to enter the residence during a specified period of time in order toremove personal belongings not in issue in this proceeding or in any other proceeding or actionunder this chapter, the family court act or the domestic relations law.

6. An order of protection or a temporary order of protection issued pursuant to subdivision one, two,three, four or five of this section shall bear in a conspicuous manner the term “order of protection”or “temporary order of protection” as the case may be and a copy shall be filed by the clerk of thecourt with the sheriff's office in the county in which the complainant resides, or, if the complainantresides within a city, with the police department of such city. The absence of such language shallnot affect the validity of such order. A copy of such order of protection or temporary order ofprotection may from time to time be filed by the clerk of the court with any other police departmentor sheriff's office having jurisdiction of the residence, work place, and school of anyone intended tobe protected by such order. A copy of the order may also be filed by the complainant at the

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appropriate police department or sheriff's office having jurisdiction. Any subsequent amendment orrevocation of such order shall be filed in the same manner as herein provided.

Such order of protection shall plainly state the date that such order expires.

6-a. The court shall inquire as to the existence of any other orders of protection between thedefendant and the person or persons for whom the order of protection is sought.

7. A family offense subject to the provisions of this section which occurs subsequent to the issuanceof an order of protection under this chapter shall be deemed a new offense for which thecomplainant may seek to file a new accusatory instrument and may file a family court petition underarticle eight of the family court act as provided for in section 100.07 of this chapter.

8. In any proceeding in which an order of protection or temporary order of protection or a warranthas been issued under this section, the clerk of the court shall issue to the complainant anddefendant and defense counsel and to any other person affected by the order a copy of the order ofprotection or temporary order of protection and ensure that a copy of the order of protection ortemporary order of protection be transmitted to the local correctional facility where the individual isor will be detained, the state or local correctional facility where the individual is or will beimprisoned, and the supervising probation department or department of corrections and communitysupervision where the individual is under probation or parole supervision. The presentation of acopy of such order or a warrant to any peace officer acting pursuant to his or her special duties orpolice officer shall constitute authority for him or her to arrest a person who has violated the termsof such order and bring such person before the court and, otherwise, so far as lies within his or herpower, to aid in securing the protection such order was intended to afford.

9. If no warrant, order or temporary order of protection has been issued by the court, and an actalleged to be a family offense as defined in section 530.11 of this chapter is the basis of the arrest,the magistrate shall permit the complainant to file a petition, information or accusatory instrumentand for reasonable cause shown, shall thereupon hold such respondent or defendant, admit to, fix oraccept bail, or parole him or her for hearing before the family court or appropriate criminal court asthe complainant shall choose in accordance with the provisions of section 530.11 of this chapter.

10. Punishment for contempt based on a violation of an order of protection or temporary order ofprotection shall not affect the original criminal action, nor reduce or diminish a sentence uponconviction for the original crime or violation alleged therein or for a lesser included offense thereof.

11. If a defendant is brought before the court for failure to obey any lawful order issued under thissection, or an order of protection issued by a court of competent jurisdiction in another state,territorial or tribal jurisdiction, and if, after hearing, the court is satisfied by competent proof thatthe defendant has willfully failed to obey any such order, the court may:

(a) revoke an order of recognizance or revoke an order of bail or order forfeiture of such bail andcommit the defendant to custody; or

(b) restore the case to the calendar when there has been an adjournment in contemplation ofdismissal and commit the defendant to custody; or

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(c) revoke a conditional discharge in accordance with section 410.70 of this chapter and imposeprobation supervision or impose a sentence of imprisonment in accordance with the penal law basedon the original conviction; or

(d) revoke probation in accordance with section 410.70 of this chapter and impose a sentence ofimprisonment in accordance with the penal law based on the original conviction. In addition, if theact which constitutes the violation of the order of protection or temporary order of protection is acrime or a violation the defendant may be charged with and tried for that crime or violation.

(e) Repealed.

12. The chief administrator of the courts shall promulgate appropriate uniform temporary orders ofprotection and orders of protection forms to be used throughout the state. Such forms shall bepromulgated and developed in a manner to ensure the compatability [FN1] of such forms with thestatewide computerized registry established pursuant to section two hundred twenty-one-a of theexecutive law.

13. Notwithstanding the foregoing provisions, an order of protection, or temporary order ofprotection when applicable, may be entered against a former spouse and persons who have a childin common, regardless of whether such persons have been married or have lived together at anytime, or against a member of the same family or household as defined in subdivision one of section530.11 of this article.

14. The people shall make reasonable efforts to notify the complainant alleging a crime constitutinga family offense when the people have decided to decline prosecution of such crime, to dismiss thecriminal charges against the defendant or to enter into a plea agreement. The people shall advise thecomplainant of the right to file a petition in the family court pursuant to section 100.07 of thischapter and section one hundred fifteen of the family court act.

In any case where allegations of criminal conduct are transferred from the family court to thecriminal court pursuant to paragraph (ii) of subdivision (b) of section eight hundred forty-six of thefamily court act, the people shall advise the family court making the transfer of any decision to filean accusatory instrument against the family court respondent and shall notify such court of thedisposition of such instrument and the sentence, if any, imposed upon such respondent.

Release of a defendant from custody shall not be delayed because of the requirements of thissubdivision.

15. Any motion to vacate or modify an order of protection or temporary order of protection shall beon notice to the non-moving party, except as provided in subdivision three-b of this section.

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SUPPLEMENTARY PRACTICE COMMENTARIESby Peter Preiser

2011

Subdivision five of this section was amended in 2011 to change the requirement for entering finalorders of protection from date of conviction to date of imposition of sentence and the limitation onthe length of that order to span from the date of sentencing rather than the date of conviction. Thissimply corrects an anomaly as the victim was covered by the temporary order of protection duringthe pendency of the criminal proceeding, which lasted up to the date of sentencing.

A similar change was made to subdivision four of section 530.13.


The genesis of this section is outlined in the practice commentaries for the comprehensive criminalcourt family offense jurisdiction section (see CPL § 530.11), and the two sections should beconstrued together. Indeed, in many cases when amendments are made to one of the two sections, acomplementary amendment is made to the other. As is the case with CPL § 530.11, this section iscomprised of a patchwork of amendments and duplications caused by legislation virtually everyyear since it's enactment, including the latest to the 2008 legislative session.

These provisions appropriately were inserted in an article that deals with securing orders so thatcourts will consider the immediate need for protection of a family offense complainant from abuseby persons closely associated as members of the same family or household when defendant firstappears in the court for arraignment. Thus, the statute provides in subdivision one that the court isto consider issuance of an order of protection in conjunction with a securing order that it must issueupon a finding of probable cause. (see CPL §§ 170.10[7], 530.20).

In summary, this section supplements the jurisdictional section by granting a criminal court broadauthority to issue, continue and/or modify orders of protection in the family offenses for which ithas concurrent jurisdiction with the Family Court. These comprise certain specifically designatedoffenses occurring between spouses or former spouses, parent and child, or members of the samefamily or household as that rather broad term is defined in subdivision one of CPL § 530.11.

This section also provides authority for immediate protection in cases where the Family Court is notavailable. Thus, if the victim of a family offense would rather proceed without making a criminalcharge, a criminal court may issue a temporary order of protection pending a hearing in the FamilyCourt (subd. 3-a), or upon request of a Family Court petitioner when that court is not in sessionmodify orders of protection issued by that Court (subd. 3-b). Additionally, the jurisdictional section,CPL § 530.11[4], authorizes local criminal courts to receive persons arrested on Supreme Court orFamily Court warrants when those courts are not in session and to deal with them pursuant tospecified statutory authority set forth in the Family Court Act and the Domestic Relations law.

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The authority for a criminal court to issue it's own order of protection in family offense cases is setforth in subdivisions one, three, four and five. Subdivision one authorizes a temporary order ofprotection upon arraignment of the defendant. Subdivisions three and four authorize ex partetemporary orders of protection, and under subdivision five the court may issue a non-temporaryorder of protection covering a span of years when defendant is convicted of a crime. Subdivisiontwo provides that a Family Court order of protection remains in effect when a respondent appears inthe criminal court and as above noted subdivisions 3-a and 3-b permit a criminal court to issueand/or modify Family Court orders of protection when that court is not in session. Thecomprehensive scope of the restrictions that may be imposed upon a defendant by an order ofprotection is spelled out in subdivision one. To be certain that the scope is covered and therestrictions specific, courts customarily utilize a preprinted form with boxes on which check marksmay be inserted to prescribe the restrictions for individual cases (see e.g., 22 NYCRR subd. D, Ch.III, Subch. C).

In addition to the restrictions pursuant to the order of protection, the order of protection may requiredefendant to surrender and turn in any and all firearms, including rifles and shotguns. Moreover, incertain situations the court has discretionary authority or is required to declare defendant ineligiblefor a license to possess a firearm (CPL § 530.14, Penal Law § 400.00[1], [11]). Apart fromrestrictions upon the defendant, by recent amendment the court has authority to permit a victim toavoid future liability under the obligations of a lease or rental agreement (see par. g).

An order of protection must state the date on which it expires and copies must be filed with theclerk of the court and the local police agencies as well as delivered to the defendant, defensecounsel and any other person affected. The date is important because a willful violation of an ordermay be prosecuted as a criminal contempt under the judiciary law (§ 751) or as a class Amisdemeanor under the Penal Law (§ 215.50[3]). Under certain circumstances a willful violationmay be punishable as a class E felony. Note too that multiple willful violations may be punishedseparately and consecutive sentences may be imposed (see Walker v. Walker, 1995, 86 N.Y.2d 624,635 N.Y.S.2d 152, 658 N.E.2d 1025). Although the statute expressly permits some orders to beissued ex parte, a defendant cannot be held responsible for wilful violation absent proof that he orshe has been informed both of the existence of the order and of the provision allegedly violated.People v. Inserra, 2004, 4 N.Y.3d 30, 790 N.Y.S.2d 72, 823 N.E.2d 437; see People v. McCowan,1995, 85 N.Y.2d 985, 629 N.Y.S.2d 163, 652 N.E.2d 909. Presumably, where the order is issued exparte upon issuance of a warrant of arrest to continue in effect until defendant appears in court,notice will occur when it is served along with the warrant and expiration can be established byrecords showing the date of defendant's appearance (but see People v. Prescott, 115 Misc.3d1122(A), 839 N.Y.S.2d 436 [Sup Ct. NY Co. 2007]).

Apart from contempt of court, if the defendant commits some other offense, such as assault,whether before or after the contempt, a separate prosecution and punishment for that offense mayensue as well (see subds. 7, 10, 11[d]). In addition to direct punishment, upon willful violation of anorder of protection pending final disposition of a family offense, the court may revoke an order ofrecognizance or bail and commit the defendant to custody (subd. 11[a], [b)]). This constitutes anexception to the general requirement that a court must order recognizance or bail where a defendantis charged with an offense below felony grade (see CPL § 530.20[1] and Practice Commentariesthereto). Alternatively, in cases where defendant is currently under sentence for a prior crime, thecourt may revoke conditional discharge and impose probation supervision or revoke probation andsentence defendant to jail where permitted by the penal law (subd. 11[c], [d]).

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Subdivision five deals with orders of protection upon conviction of the defendant for a familyoffense. At this point the court is required to determine whether a temporary order has been issuedand, if so, explain the reasons for issuing or not issuing a “permanent” order when imposing thesentence. Upon determining that an order of protection is needed at sentencing, the court mayimpose an order covering a period of time that may extend in the case of a felony for as long aseight years from the date of conviction or alternatively from expiration of the term of imprisonmentimposed. In other cases the maximum duration shall be five years from the date of conviction for aclass A misdemeanor or two years for a lesser offense. When sentence has been imposed, the clerkof the court is required to transmit a copy of the order to the correctional facility or the parole orprobation agency that is to receive custody or jurisdiction. In addition, the court may, or in certaincircumstances must, order defendant to surrender any and all firearms and declare defendantineligible for a license to possess a firearm (see CPL 530.14). A permanent order of protection isdeemed part of the judgment of conviction and is appealable in the same fashion as any other aspectof the judgment. Note though that the order, though part of the judgment, is not considered a part ofthe sentence and thus an irregularity in the order is not a jurisdictional defect that invalidates it.Accordingly, preservation of an objection is required for raising errors on appeal. People v. Whalen,49 A.D.3d 916, 917 n.1, 852 N.Y.S.2d 482 (3d Dept. 2008); cf., People v. Nieves, 2004, 2 N.Y.3d310, 778 N.Y.S.2d 751, 811 N.E.2d 13.

Due to the fact that a defendant may be subject to two convictions, either through dual jurisdictionof both a criminal court and the family court, or because of exposure to punishment for both willfulviolation of an order of protection (contempt) and the crime that served as a basis for the violation(e.g., assault), double jeopardy issues may arise. Since a victim of a family offense has the right toproceed against a defendant in both a criminal court and the Family Court, there is a possibility thatthe same conduct could simultaneously be a willful violation of the orders of both courts. In suchcase punishment for contempt by either court would be deemed to preclude punishment forcontempt by the other, if based upon the same conduct, irrespective of which court imposed thepunishment first. People v. Wood, 2000, 95 N.Y.2d 509, 719 N.Y.S.2d 639, 742 N.E.2d 114.However, where the contempt is based upon a substantive crime committed against the victim, thedefendant may be punished separately for contempt in violating the order of the court and also forthe crime committed against the victim. In such case double jeopardy does not apply, because thecrime of willful violation of the order is not one of the elements of the statute violated by thedefendant (see Practice Commentaries for CPL § 40.20); but if the criminal conduct were the basisfor violation of the order of protection, the sentences cannot be consecutive (see Penal Law §70.25[2]).

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§ 530.13 Protection of victims of crimes, other than family offenses

1. When any criminal action is pending, and the court has not issued a temporary order of protectionpursuant to section 530.12 of this article, the court, in addition to the other powers conferred upon itby this chapter, may for good cause shown issue a temporary order of protection in conjunctionwith any securing order committing the defendant to the custody of the sheriff or as a condition of apre-trial release, or as a condition of release on bail or an adjournment in contemplation ofdismissal. In addition to any other conditions, such an order may require that the defendant:

(a) stay away from the home, school, business or place of employment of the victims of, ordesignated witnesses to, the alleged offense;

(b) refrain from harassing, intimidating, threatening or otherwise interfering with the victims of thealleged offense and such members of the family or household of such victims or designatedwitnesses as shall be specifically named by the court in such order;

(c) 1. to refrain from intentionally injuring or killing, without justification, any companion animalthe defendant knows to be owned, possessed, leased, kept or held by such victim or victims or aminor child residing in such victim's or victims' household.


In addition to the foregoing provisions, the court may issue an order, pursuant to section twohundred twenty-seven-c of the real property law, authorizing the party for whose benefit any orderof protection has been issued to terminate a lease or rental agreement pursuant to section twohundred twenty-seven-c of the real property law.

2. The court may issue a temporary order of protection under this section ex parte upon the filing ofan accusatory instrument and for good cause shown.

3. The court may issue or extend a temporary order of protection under this section ex partesimultaneously with the issuance of a warrant for the arrest of the defendant. Such temporary orderof protection may continue in effect until the day the defendant subsequently appears in courtpursuant to such warrant or voluntarily or otherwise.

4. [Eff. until Sept. 1, 2013, pursuant to L.1995, c. 3, § 74, par. d. See, also, opening paragraphbelow.] Upon sentencing on a conviction for any offense, where the court has not issued an order ofprotection pursuant to section 530.12 of this article, the court may, in addition to any otherdisposition, including a conditional discharge or youthful offender adjudication, enter an order ofprotection. Where a temporary order of protection was issued, the court shall state on the record thereasons for issuing or not issuing an order of protection. The duration of such an order shall be fixedby the court and; (A) in the case of a felony conviction, shall not exceed the greater of: (i) eightyears from the date of such sentencing, or (ii) eight years from the date of the expiration of the

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maximum term of an indeterminate or the term of a determinate sentence of imprisonment actuallyimposed; or (B) in the case of a conviction for a class A misdemeanor, shall not exceed the greaterof: (i) five years from the date of such sentencing, or (ii) five years from the date of the expirationof the maximum term of a definite or intermittent term actually imposed; or (c) in the case of aconviction for any other offense, shall not exceed the greater of: (i) two years from the date ofsentencing, or (ii) two years from the date of the expiration of the maximum term of a definite orintermittent term actually imposed. For purposes of determining the duration of an order ofprotection entered pursuant to this subdivision, a conviction shall be deemed to include a convictionthat has been replaced by a youthful offender adjudication. In addition to any other conditions suchan order may require that the defendant:

4. [Eff. Sept. 1, 2013, pursuant to L.1995, c. 3, § 74, par. d. See, also, opening paragraph above.]Upon sentencing on a conviction for any offense, where the court has not issued an order ofprotection pursuant to section 530.12 of this article, the court may, in addition to any otherdisposition, including a conditional discharge or youthful offender adjudication, enter an order ofprotection. Where a temporary order of protection was issued, the court shall state on the record thereasons for issuing or not issuing an order of protection. The duration of such an order shall be fixedby the court and, in the case of a felony conviction, shall not exceed the greater of: (i) five yearsfrom the date of such sentencing, or (ii) three years from the date of the expiration of the maximumterm of an indeterminate sentence of imprisonment actually imposed; or in the case of a convictionfor a class A misdemeanor, shall not exceed three years from the date of such sentencing; or in thecase of a conviction for any other offense, shall not exceed one year from the date of sentencing.For purposes of determining the duration of an order of protection entered pursuant to thissubdivision, a conviction shall be deemed to include a conviction that has been replaced by ayouthful offender adjudication. In addition to any other conditions such an order may require thatthe defendant:

(a) stay away from the home, school, business or place of employment of the victim or victims, orof any witness designated by the court, of such offense;

(b) refrain from harassing, intimidating, threatening or otherwise interfering with the victim orvictims of the offense and such members of the family or household of such victim or victims asshall be specifically named by the court in such order;

(c) 1. to refrain from intentionally injuring or killing, without justification, any companion animalthe defendant knows to be owned, possessed, leased, kept or held by such victim or victims or aminor child residing in such victim's or victims' household.


5. The court shall inquire as to the existence of any other orders of protection between the defendantand the person or persons for whom the order of protection is sought. An order of protection issuedunder this section shall plainly state the date that such order expires. Orders of protection issued toprotect victims of domestic violence, as defined in section four hundred fifty-nine-a of the socialservices law, shall be on uniform statewide forms that shall be promulgated by the chief

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administrator of the courts in a manner to ensure the compatibility of such forms with the statewideregistry of orders of protection and warrants established pursuant to section two hundred twenty-one-a of the executive law. A copy of an order of protection or a temporary order of protectionissued pursuant to subdivision one, two, three, or four of this section shall be filed by the clerk ofthe court with the sheriff's office in the county in which such victim or victims reside, or, if thevictim or victims reside within a city, with the police department of such city. A copy of such orderof protection or temporary order of protection may from time to time be filed by the clerk of thecourt with any other police department or sheriff's office having jurisdiction of the residence, workplace, and school of anyone intended to be protected by such order. A copy of the order may also befiled by the victim or victims at the appropriate police department or sheriff's office havingjurisdiction. Any subsequent amendment or revocation of such order shall be filed in the samemanner as herein provided.

6. In any proceeding in which an order of protection or temporary order of protection or a warranthas been issued under this section, the clerk of the court shall issue to the victim and the defendantand defense counsel and to any other person affected by the order, a copy of the order of protectionor temporary order of protection and ensure that a copy of the order of protection or temporaryorder of protection be transmitted to the local correctional facility where the individual is or will bedetained, the state or local correctional facility where the individual is or will be imprisoned, andthe supervising probation department or department of corrections and community supervisionwhere the individual is under probation or parole supervision. The presentation of a copy of suchorder or a warrant to any police officer or peace officer acting pursuant to his or her special dutiesshall constitute authority for him or her to arrest a person who has violated the terms of such orderand bring such person before the court and, otherwise, so far as lies within his or her power, to aidin securing the protection such order was intended to afford.

7. Punishment for contempt based upon a violation of an order or [FN1] protection or temporaryorder of protection issued under this section shall not affect a pending criminal action, nor reduce ordiminish a sentence upon conviction for any other crimes or offenses.

8. If a defendant is brought before the court for failure to obey any lawful order issued under thissection and if, after hearing, the court is satisfied by competent proof that the defendant haswillfully failed to obey any such order, the court may:

(a) revoke an order of recognizance or bail and commit the defendant to custody; or

(b) restore the case to the calendar when there has been an adjournment in contemplation ofdismissal and commit the defendant to custody or impose or increase bail pending a trial of theoriginal crime or violation; or

(c) revoke a conditional discharge in accordance with section 410.70 of this chapter and imposeprobation supervision or impose a sentence of imprisonment in accordance with the penal law basedon the original conviction; or

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(d) revoke probation in accordance with section 410.70 of this chapter and impose a sentence ofimprisonment in accordance with the penal law based on the original conviction. In addition, if theact which constitutes the violation of the order of protection or temporary order of protection is acrime or a violation the defendant may be charged with and tried for that crime or violation.

9. The chief administrator of the courts shall promulgate appropriate uniform temporary order ofprotection and order of protection forms to be used throughout the state.

SUPPLEMENTARY PRACTICE COMMENTARIESby William C. Donnino

2012

Subdivision four of this section specifies in part that when a determinate sentence of imprisonmentis actually imposed and an order of protection is issued, the duration of the order of protection“shall not exceed ... (ii) eight years from the date of the expiration of the maximum term of ... theterm of a determinate sentence of imprisonment actually imposed.” In calculating the maximum ofthe determinate sentence, the determinate sentence's period of imprisonment and period of post-release supervision must be added together. See People v. Williams, 19 N.Y.3d 100, 945 N.Y.S.2d629, 968 N.E.2d 983 (2012).

SUPPLEMENTARY PRACTICE COMMENTARIES2011

by Peter Preiser

Subdivision four of this section was amended in 2011 to change the requirement for entering finalorders of protection from date of conviction to date of imposition of sentence and the limitation onthe length of that order to span from the date of sentencing rather than the date of conviction. Thissimply corrects an anomaly as the victim was covered by the temporary order of protection duringthe pendency of the criminal proceeding, which lasted up to the date of sentencing.

A similar change was made to subdivision five of section 530.12.

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The provisions of this section vest criminal courts with independent authority to issue orders ofprotection for victims and witnesses who are not involved in the family offenses defined in CPL §530.11[1] where criminal court's basically function as an adjunct to jurisdiction of the FamilyCourt. Since there may well be good cause to authorize orders of protection for persons who are notwithin the relationships covered by family offenses, it makes sense to authorize this protection tovictims and witnesses involved in other offenses. Basically, this section supplements CPL § 530.12,which was drafted originally for family offense cases and as a result the operative provisions foradministration of orders of protection virtually duplicate those, except that some of the restrictionsof the former relating to family relationships do not apply to the latter.

Orders of protection under this section are usually on pre-printed forms issued by the office ofCourt Administration (subd. 9). They may be issued at any time when a criminal action is pendingif no other order issued under CPL § 530.12 is pending and good cause is shown. (Subd. 1). As inthe case of family offenses, the orders of protection may be temporary (subds. 2, 3) or permanent(subd. 4) and must have an expiration date (subd. 5). While usually issued when defendant is beforethe court they may be issued ex parte simultaneously with issuance of an order of arrest. But note inthis connection that notice to defendant is a prerequisite to a charge of contempt for a violation (seepractice commentaries for CPL § 530.12). Like family offense orders, the clerk of the court isrequired to deliver copies to the parties, defense counsel, appropriate police agencies and anycorrectional authority having jurisdiction to deal with defendant. Also, like family offense orders,the order may require defendant to surrender any firearm, rifle or shotgun and under certaincircumstances declare defendant ineligible for a firearm permit (see also CPL § 530.14),Additionally, by recent amendment also made for family offense matters, the court has authority topermit a victim to avoid future liability under the obligations of a lease or rental agreement (seeunnumbered par. following subd. 1).

As in the case of family offenses, if defendant is convicted of a criminal offense, the court mayissue an order of protection as part of the sentence (see subd. 4). Most of the appellate litigationinvolving such orders of protection raise issues regarding orders imposed under the family offensesection (CPL § 530.12). Accordingly, certain aspects applicable to orders issued under that sectionare particularly apropos for commentary here. As under CPL § 530.12 an order of protection, whileappealable as part of the judgment of conviction is not deemed part of the sentence. People v.Nieves, 2004, 2 N.Y.3d 310, 778 N.Y. 751, 811 N.E.2d 13. Thus it need not be mentioned in a pleabargain negotiation (People v. Hull, 52 A.D.3d 962, 859 N.Y.S.2d 508 (3d Dept. 2008); People v.Dixon, 16 A.D.3d 517, 792 N.Y.S.2d 110 (2d Dept. 2005), and therefore defendant might wish tobear this in mind at that time. Also, and perhaps most importantly, since the order is not part of thesentence it is not exempt from the requirement of preservation and thus any objection must beentered at the time it is imposed in order to be raised on appeal as an error of law, though a courtmight consider it as a matter of discretion in the interest of justice (see CPL § 470.15[6]; e.g.,People v. Harris, 50 A.D.3d 1608, 857 N.Y.S.2d 840 (4th Dept. 2008). Note in the latterconnection, that when a “permanent” order of protection is imposed for a felony and it's length iskeyed to the expiration of a determinate or indeterminate sentence (subdivision 4[ii]), the court maynot have taken jail time into account in specifying the date of expiration. Thus, as the Court of

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Appeals has suggested, if a defendant would like to have jail time deducted from the expiration dateof the order of protection, defendant should raise the issue at sentencing and request to be returnedfor resentencing after jail time has been calculated (People v. Nieves, supra at 318).

As in the case of family offenses multiple contempt convictions for violations of an order ofprotection under this section may result in consecutive sentences (cf., Walker v. Walker, 1995, 86N.Y.2d 624, 635 N.Y.S.2d 152, 658 N.E.2d 1025). Any crime that also violates an order ofprotection may be punished separately (see subd. 7) and a sentence for willful violation of an orderof protection will not be a double jeopardy bar for prosecution of a substantive crime committedagainst the victim for the same conduct, because the elements are not the same. See PracticeCommentaries for CPL § 40.20; cf. People v. Wood, 2000, 95 N.Y.2d 509, 513, 719 N.Y.S.2d 639,742 N.E.2d 114; but if the criminal conduct were the basis for violation of the order of protection,the sentences cannot be consecutive (see Penal Law § 70.25[2]).

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§ 530.14 Suspension and revocation of a license to carry, possess, repair ordispose of a firearm or firearms pursuant to section 400.00 of the penal law andineligibility for such a license; order to surrender firearms

1. Mandatory and permissive suspension of firearms license and ineligibility for such a license uponissuance of temporary order of protection. Whenever a temporary order of protection is issuedpursuant to subdivision one of section 530.12 or subdivision one of section 530.13 of this article:

(a) the court shall suspend any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned orpossessed where the court receives information that gives the court good cause to believe that (i) thedefendant has a prior conviction of any violent felony offense as defined in section 70.02 of thepenal law; (ii) the defendant has previously been found to have willfully failed to obey a prior orderof protection and such willful failure involved (A) the infliction of physical injury, as defined insubdivision nine of section 10.00 of the penal law, (B) the use or threatened use of a deadly weaponor dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section10.00 of the penal law, or (c) behavior constituting any violent felony offense as defined in section70.02 of the penal law; or (iii) the defendant has a prior conviction for stalking in the first degree asdefined in section 120.60 of the penal law, stalking in the second degree as defined in section120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law orstalking in the fourth degree as defined in section 120.45 of such law; and

(b) the court may where the court finds a substantial risk that the defendant may use or threaten touse a firearm unlawfully against the person or persons for whose protection the temporary order ofprotection is issued, suspend any such existing license possessed by the defendant, order thedefendant ineligible for such a license and order the immediate surrender of any or all firearmsowned or possessed.

2. Mandatory and permissive revocation or suspension of firearms license and ineligibility for sucha license upon issuance of an order of protection. Whenever an order of protection is issuedpursuant to subdivision five of section 530.12 or subdivision four of section 530.13 of this article:

(a) the court shall revoke any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned orpossessed where such action is required by section 400.00 of the penal law; and

(b) the court may where the court finds a substantial risk that the defendant may use or threaten touse a firearm unlawfully against the person or persons for whose protection the order of protectionis issued, (i) revoke any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned orpossessed or (ii) suspend or continue to suspend any such existing license possessed by thedefendant, order the defendant ineligible for such a license and order the immediate surrender ofany or all firearms owned or possessed.

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3. Mandatory and permissive revocation or suspension of firearms license and ineligibility for sucha license upon a finding of a willful failure to obey an order of protection. Whenever a defendanthas been found pursuant to subdivision eleven of section 530.12 or subdivision eight of section530.13 of this article to have willfully failed to obey an order of protection issued by a court ofcompetent jurisdiction in this state or another state, territorial or tribal jurisdiction, in addition toany other remedies available pursuant to subdivision eleven of section 530.12 or subdivision eightof section 530.13 of this article:

(a) the court shall revoke any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned orpossessed where the willful failure to obey such order involved (i) the infliction of physical injury,as defined in subdivision nine of section 10.00 of the penal law, (ii) the use or threatened use of adeadly weapon or dangerous instrument as those terms are defined in subdivisions twelve andthirteen of section 10.00 of the penal law, (iii) behavior constituting any violent felony offense asdefined in section 70.02 of the penal law; or (iv) behavior constituting stalking in the first degree asdefined in section 120.60 of the penal law, stalking in the second degree as defined in section120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law orstalking in the fourth degree as defined in section 120.45 of such law; and

(b) the court may where the court finds a substantial risk that the defendant may use or threaten touse a firearm unlawfully against the person or persons for whose protection the order of protectionwas issued, (i) revoke any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned orpossessed or (ii) suspend any such existing license possessed by the defendant, order the defendantineligible for such a license and order the immediate surrender of any or all firearms owned or possessed.

4. Suspension. Any suspension order issued pursuant to this section shall remain in effect for theduration of the temporary order of protection or order of protection, unless modified or vacated bythe court.

5. Surrender. (a) Where an order to surrender one or more firearms has been issued, the temporaryorder of protection or order of protection shall specify the place where such firearms shall besurrendered, shall specify a date and time by which the surrender shall be completed and, to theextent possible, shall describe such firearms to be surrendered, and shall direct the authorityreceiving such surrendered firearms to immediately notify the court of such surrender.

(b) The prompt surrender of one or more firearms pursuant to a court order issued pursuant to thissection shall be considered a voluntary surrender for purposes of subparagraph (f) of paragraph oneof subdivision a of section 265.20 of the penal law. The disposition of any such firearms shall be inaccordance with the provisions of subdivision six of section 400.05 of the penal law.

(c) The provisions of this section shall not be deemed to limit, restrict or otherwise impair theauthority of the court to order and direct the surrender of any or all pistols, revolvers, rifles,shotguns or other firearms owned or possessed by a defendant pursuant to sections 530.12 or 530.13of this article.

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6. Notice. (a) Where an order of revocation, suspension or ineligibility has been issued pursuant tothis section, any temporary order of protection or order of protection issued shall state that suchfirearm license has been suspended or revoked or that the defendant is ineligible for such license, asthe case may be.

(b) The court revoking or suspending the license, ordering the defendant ineligible for such alicense, or ordering the surrender of any firearm shall immediately notify the duly constituted policeauthorities of the locality concerning such action and, in the case of orders of protection andtemporary orders of protection issued pursuant to section 530.12 of this article, shall immediatelynotify the statewide registry of orders of protection.

(c) The court revoking or suspending the license or ordering the defendant ineligible for such alicense shall give written notice thereof without unnecessary delay to the division of state police atits office in the city of Albany.

(d) Where an order of revocation, suspension, ineligibility or surrender is modified or vacated, thecourt shall immediately notify the statewide registry of orders of protection and the duly constitutedpolice authorities of the locality concerning such action and shall give written notice thereofwithout unnecessary delay to the division of state police at its office in the city of Albany.

7. Hearing. The defendant shall have the right to a hearing before the court regarding anyrevocation, suspension, ineligibility or surrender order issued pursuant to this section, provided thatnothing in this subdivision shall preclude the court from issuing any such order prior to a hearing.Where the court has issued such an order prior to a hearing, it shall commence such hearing withinfourteen days of the date such order was issued.

8. Nothing in this section shall delay or otherwise interfere with the issuance of a temporary orderof protection or the timely arraignment of a defendant in custody.

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by Peter Preiser

This section authorizes and in some instances requires a criminal court that has issued an order ofprotection under CPL §§ 530.12 or 530.13 to order a defendant to surrender and turn in all firearmshe or she possesses and to impose comprehensive restrictions upon defendant's possession of afirearm license. Note that the firearms covered by the surrender order are not limited to those forwhich a license is required under Penal Law § 400.00. That order can extend without limitation topistols, rifles and shotguns (subd. 5[c]).

Basically the firearms portion of an order of protection involves two aspects of the court's authority:discretionary and mandatory orders. The statute structures authority in accordance with threedifferent stages of supervision, as outlined in separate subdivisions. Subdivision one applies uponissuing the order of protection. Subdivision two applies upon sentencing defendant for commissionof an offense, and subdivision three applies when defendant is found guilty of willfully violating theorder of protection. Each category sets out two paragraphs, one requiring mandatory orders and theother permitting discretionary ones. The subdivisions are reviewed here in order of the stages ofenforcement rather than in numerical order.

Subdivision one, applies when the order is initially entered or revised. Here mandatory firearmrestrictions (par. [a]) are focused upon defendant's criminal history and recent threatening conduct.Thus the criteria include matters such as, prior conviction of a felony or of stalking, failure to obeya prior order of protection, threatening the use of a deadly weapon or behavior constituting anyviolent felony offense relating to a person covered by the order. Upon so finding, the court mustrequire surrender of all firearms, suspend defendant's firearm license and impose ineligibility forsame. Where mandatory restrictions are not applicable, discretionary authority (par. [b]) authorizesthe court to require surrender of firearms, suspension of and ineligibility for a firearms license, ifthe court finds a substantial risk that defendant may use or threaten to use a firearm unlawfullyagainst a person covered by the order.

Subdivision three comes into play when there is willful violation of the order through infliction ofphysical injury, the use of a deadly weapon or dangerous instrument, behavior constituting a violentfelony, or stalking. Paragraph (a) requires immediate surrender of firearms and revocation andsuspension of a firearms license together with ineligibility for one. Paragraph (b) grants discretionfor comprehensive firearms restrictions where there is a substantial risk to a person covered by theorder.

Finally, upon conviction of any offense and imposition of a “permanent” order of protection,subdivision two applies. Here, under paragraph (a) mandatory revocation of a firearms license willbe required upon conviction of any felony or serious offense and future ineligibility will follow inaccordance with Penal Law § 400.00[1], (11), together of course with the surrender of firearms asrequired by that section. Where the mandatory provision does not apply, discretionary authority asto firearms surrender and licenses under paragraph (b) is available for willful violation of the orderunder the same circumstances as set forth in subdivision three.

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Subdivision four governs the duration of an order of suspension and subdivision five deals with thedetails of when, where, how and what weapons are to be surrendered. Subdivision six is devoted toadministrative matters.

Subdivision seven provides that defendant is entitled to a hearing with respect to any revocation,suspension or ineligibility ordered under this section. The court may issue the order without theneed for a hearing, but in such case the hearing must be held within fourteen days. Research to datehas not uncovered any published judicial decisions on this matter.

Note: Apart from this section and other state laws dealing with the possession and transportation offirearms, a person may well be liable for a federal offense, irrespective of whether a court hasordered surrender of his or her firearms. See 18 U.S.C. § 922(g)[8], [9].

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§ 530.20 Order of recognizance or bail; by local criminal court when action ispending therein

When a criminal action is pending in a local criminal court, such court, upon application of adefendant, must or may order recognizance or bail as follows:

1. When the defendant is charged, by information, simplified information, prosecutor's informationor misdemeanor complaint, with an offense or offenses of less than felony grade only, the courtmust order recognizance or bail.

2. When the defendant is charged, by felony complaint, with a felony, the court may, in itsdiscretion, order recognizance or bail except as otherwise provided in this subdivision:

(a) A city court, a town court or a village court may not order recognizance or bail when (i) thedefendant is charged with a class A felony, or (ii) it appears that the defendant has two previousfelony convictions;

(b) No local criminal court may order recognizance or bail with respect to a defendant charged witha felony unless and until:

(i) The district attorney has been heard in the matter or, after knowledge or notice of the applicationand reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwisewaived his right to do so; and

(ii) The court has been furnished with a report of the division of criminal justice servicesconcerning the defendant's criminal record if any or with a police department report with respect tothe defendant's prior arrest record. If neither report is available, the court, with the consent of thedistrict attorney, may dispense with this requirement; provided, however, that in an emergency,including but not limited to a substantial impairment in the ability of such division or policedepartment to timely furnish such report, such consent shall not be required if, for reasons stated onthe record, the court deems it unnecessary. When the court has been furnished with any such reportor record, it shall furnish a copy thereof to counsel for the defendant or, if the defendant is notrepresented by counsel, to the defendant.

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This section prescribes the authority for a court to order bail or recognizance on arraigning adefendant. Subdivisions one and two should be considered separately.

Subdivision one applies to offenses other than felonies, i.e, charged in accusatory instruments otherthan felony complaints. In these cases the court must order recognizance or set bail and cannotorder commitment, unless of course the defendant is unable to post bail as fixed by the court (seeCPL § 510.40[3]). The provision in the preamble to the section that appears to require anapplication by defendant has been interpreted as inapplicable here, because the duty of the court inthis regard is mandatory and thus the court should not await an application. As explained by theCourt of Appeals, “it makes little practical sense to require a defendant to make an application forrecognizance or bail, a benefit of obvious importance and to which the defendant is entitled as amatter of right, at a time when the defendant is unlikely to be represented by counsel” (Matter ofLaBelle, 1992, 79 N.Y.2d 350, 358, 582 N.Y.S.2d 970, 591 N.E.2d 1156).

Subdivision two, which applies where the charge is a felony, grants the court discretion to either (a)order recognizance or bail, subject to the restrictions described infra; or (b) commit the defendant tothe custody of the sheriff (see CPL § 180.10[6]). Here the requirement of an application forrecognizance or bail makes sense, if defendant is represented by counsel at arraignment.

Recognizance or bail for a felony cannot be ordered until the court has received a fingerprint reportconcerning the defendant's prior criminal record and the district attorney has had an opportunity tobe heard or, if such report is unavailable, the district attorney consents to bail or recognizancewithout the necessity of a fingerprint report (subd. 2[b]). Since virtually all jurisdictions within thestate utilize fingerprint reports transmitted electronically from a computerized database maintainedby the State Division of Criminal Justice Services in Albany, provision is made for emergenciessuch as computer breakdown or extended electric power or telephone line failure permitting thecourt to dispense with the required report notwithstanding the prosecutor's lack of consent in theevent the court, for reasons stated upon the record, deems the report unnecessary.

Apart from the above prerequisites, city, town and village courts lack authority to release onrecognizance or bail where defendant is charged with 1) a class A felony, or 2) any other felony andthe fingerprint report indicates two prior felony convictions (subd. 2[a]). But this does not restrictthe Criminal Court of the city of New York, district courts (established in Nassau and part ofSuffolk Counties), or superior court judges and justices sitting as a local criminal court. Where therestriction does apply, application should be made to a superior court judge or justice (see CPL §530.30).

It is important to be aware that in any case where a securing order is made by a local criminal court,other than by a superior court judge or justice sitting as a local criminal court, if the defendantbelieves the securing order fixed is unduly burdensome, the defendant has an absolute right to applyto a judge of the county court or a justice of the supreme court functioning in the locality for thesetting of recognizance or bail or de novo review of the local criminal court's order (see CPL §

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530.30). Only one such application is permitted, but importantly, that does not cut off thedefendant's right to apply for habeas corpus and to appeal denial of the writ (see discussion ofhabeas corpus criteria in Practice Commentaries for CPL § 510.20).

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§ 530.30 Order of recognizance or bail; by superior court judge when action ispending in local criminal court

1. When a criminal action is pending in a local criminal court, other than one consisting of asuperior court judge sitting as such, a judge of a superior court holding a term thereof in the county,upon application of a defendant, may order recognizance or bail when such local criminal court:

(a) Lacks authority to issue such an order, pursuant to paragraph (a) of subdivision two of section530.20; or

(b) Has denied an application for recognizance or bail; or

(c) Has fixed bail which is excessive. In such case, such superior court judge may vacate the orderof such local criminal court and release the defendant on his own recognizance or fix bail in a lesseramount or in a less burdensome form.

2. Notwithstanding the provisions of subdivision one, when the defendant is charged with a felonyin a local criminal court, a superior court judge may not order recognizance or bail unless and untilthe district attorney has had an opportunity to be heard in the matter and such judge has beenfurnished with a report as described in subparagraph (ii) of paragraph (b) of subdivision two ofsection 530.20.

3. Not more than one application may be made pursuant to this section.

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This section provides authority for a superior court judge or justice to grant recognizance or bail inthe felony cases where certain local criminal courts have no authority to do so (see CPL § 530.20and Practice Commentaries thereto) and also provides an avenue for de novo review of securingorders fixed by all local criminal courts where defendants allege the terms to be unlawful or overlysevere (subd. 1).

Although only one application may be made for the review authorized by this section (see subd. 3),a defendant may still apply for release through a writ of habeas corpus. The difference between thetwo avenues is that under the present section the superior court may review the local criminalcourt's order de novo and substitute its judgment for that of the former; but on a habeas corpusapplication, the only basis for relief is error of law--i.e., constitutional or statutory violations,including abuse of discretion (see Practice Commentaries for CPL § 510.20).

Subdivision two imposes upon the superior court the same restrictions regarding a fingerprint reportand the district attorney's opportunity to be heard as are imposed upon local criminal courts (seePractice Commentaries for CPL § 530.20).

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§ 530.40 Order of recognizance or bail; by superior court when action is pendingtherein

When a criminal action is pending in a superior court, such court, upon application of a defendant,must or may order recognizance or bail as follows:

1. When the defendant is charged with an offense or offenses of less than felony grade only, thecourt must order recognizance or bail.

2. When the defendant is charged with a felony, the court may, in its discretion, order recognizanceor bail. In any such case in which an indictment (a) has resulted from an order of a local criminalcourt holding the defendant for the action of the grand jury, or (b) was filed at a time when a felonycomplaint charging the same conduct was pending in a local criminal court, and in which such localcriminal court or a superior court judge has issued an order of recognizance or bail which is stilleffective, the superior court's order may be in the form of a direction continuing the effectiveness ofthe previous order.

3. Notwithstanding the provisions of subdivision two, a superior court may not order recognizanceor bail, or permit a defendant to remain at liberty pursuant to an existing order, after he has beenconvicted of either: (a) a class A felony or (b) any class B or class C felony defined in article onehundred thirty of the penal law committed or attempted to be committed by a person eighteen yearsof age or older against a person less than eighteen years of age. In either case the court must commitor remand the defendant to the custody of the sheriff.

4. Notwithstanding the provisions of subdivision two, a superior court may not order recognizanceor bail when the defendant is charged with a felony unless and until the district attorney has had anopportunity to be heard in the matter and such court has been furnished with a report as described insubparagraph (ii) of paragraph (b) of subdivision two of section 530.20.

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This section implements the duty of a superior court to fix a securing order at the time ofarraignment before that court (see CPL § 210.15[6]). But in the case of a felony, the superior courtcannot order recognizance or bail unless the district attorney has been offered an opportunity to beheard and a fingerprint report has been made available as provided in CPL § 530.20 (subd.4)

As in the case of local criminal courts, subdivision one, applicable to charges below felony grade,the superior court must order recognizance or bail (see also CPL § 530.20[1]).

Subdivision two, applicable where the charge is a felony, provides that if the local criminal courthad ordered recognizance or bail, the superior court has discretion to continue that order. In suchcase, any cash bail posted would be transferred to the superior court (see CPL § 520.40). Wheredefendant is not free on bail or on recognizance, subdivision four authorizes the court to set bail,provided that the court first must receive a report of defendant's prior criminal record and afford thedistrict attorney an opportunity to be heard.

Note that there is no provision for appeal of a superior court's exercise of discretion when fixing asecuring order, though there may be collateral review by habeas corpus for abuse of discretion (seeCPL § 510.20 and accompanying practice commentaries).

Subdivision three applies upon conviction of certain offenses and prevents the superior court fromordering, or permitting a defendant to continue freedom on recognizance or bail when conviction isentered for the offenses specified therein. Similar restrictions apply to granting of recognizance orbail by a justice of the appellate division in the period between conviction and sentencing (see CPL§ 530.45), or after sentence to a justice of the appellate division or a judge of the Court of Appealspending appeal from sentence (see CPL § 530.50).

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§ 530.45 Order of recognizance or bail; after conviction and before sentence

1. When the defendant is at liberty in the course of a criminal action as a result of a prior order ofrecognizance or bail and the court revokes such order and then either fixes no bail or fixes bail in agreater amount or in a more burdensome form than was previously fixed and remands or commitsdefendant to the custody of the sheriff, a judge designated in subdivision two, upon application ofthe defendant following conviction of an offense other than a class A felony or a class B or class Cfelony offense defined in article one hundred thirty of the penal law committed or attempted to becommitted by a person eighteen years of age or older against a person less than eighteen years ofage, and before sentencing, may issue a securing order and either release defendant on his ownrecognizance, or fix bail, or fix bail in a lesser amount or in a less burdensome form than fixed bythe court in which the conviction was entered.

2. An order as prescribed in subdivision one may be issued by the following judges in the indicated situations:

(a) If the criminal action was pending in supreme court or county court, such order may be issuedby a justice of the appellate division of the department in which the conviction was entered.

(b) If the criminal action was pending in a local criminal court, such order may be issued by a judgeof a superior court holding a term thereof in the county in which the conviction was entered.

3. An application for an order specified in this section must be made upon reasonable notice to thepeople, and the people must be accorded adequate opportunity to appear in opposition thereto. Notmore than one application may be made pursuant to this section. Defendant must allege in hisapplication that he intends to take an appeal to an intermediate appellate court immediately aftersentence is pronounced.

4. Notwithstanding the provisions of subdivision one, if within thirty days after sentence thedefendant has not taken an appeal to an intermediate appellate court from the judgment or sentence,the operation of such order terminates and the defendant must surrender himself to the criminalcourt in which the judgment was entered in order that execution of the judgment be commenced.

5. Notwithstanding the provisions of subdivision one, if within one hundred twenty days after thefiling of the notice of appeal such appeal has not been brought to argument in or submitted to theintermediate appellate court, the operation of such order terminates and the defendant mustsurrender himself to the criminal court in which the judgment was entered in order that execution ofthe judgment be commenced or resumed; except that this subdivision does not apply where theintermediate appellate court has (a) extended the time for argument or submission of the appeal to adate beyond the specified period of one hundred twenty days, and (b) upon application of thedefendant, expressly ordered that the operation of the order continue until the date of thedetermination of the appeal or some other designated future date or occurrence.

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6. Where the defendant is at liberty during the pendency of an appeal as a result of an order issuedpursuant to this section, the intermediate appellate court, upon affirmance of the judgment, must byappropriate certificate remit the case to the criminal court in which such judgment was entered. Thecriminal court must, upon at least two days notice to the defendant, his surety and his attorney,promptly direct the defendant to surrender himself to the criminal court in order that execution ofthe judgment be commenced or resumed, and if necessary the criminal court may issue a benchwarrant to secure his appearance.

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This section was added in 1974 to fill what was perceived as a gap in the opportunity to appeal to ahigher court for release on recognizance or bail by a defendant who intends to appeal from aconviction where sentence has not as yet been imposed. Until sentence is imposed there is nojudgment that can be appealed (see CPL § 1.20[15] and Practice Commentaries thereto).Accordingly, this section applies during the hiatus--which may well be a goodly number of weeks--between conviction and sentence. Absent this section, the only path the defendant would have forreview of a post conviction order that results in custody pending sentence would be habeas corpus(see Practice Commentaries for CPL § 510.20).

The conditions under which the section can be utilized are extremely narrow. It applies only to: (a)a person who has been at liberty during the course of the criminal action under a securing order thatwas revoked who now is incarcerated pursuant to a fresh securing order that either decreedcommitment to the custody of the sheriff or fixed new and more onerous terms the defendant wasunable to meet; and (b) the period between conviction of an offense, other than a class A felony or aclass B or C felony defined in Penal Law Article 130 committed by a person 18 years of age orolder against a person less than 18, and sentence thereon.

As provided in subdivision three, the application must allege the defendant's intention to appealimmediately after sentence and must be on notice to the district attorney, who is entitled to areasonable opportunity to appear in opposition thereto. Only one such application can be made, butfailure to succeed thereon does not preclude a subsequent application pursuant to CPL § 460.50after judgment has been entered.

Subdivisions four, five and six set forth the administrative mechanism for assuring termination ofany release order issued where the defendant does not timely complete the steps necessary for theappeal, or where the conviction is affirmed on appeal. These provisions parallel those applicable toorders staying judgment upon appeal after sentence (see CPL § 460.50 and Practice Commentarythereto). In this connection it is essential to remember that any application for an extension of timeto perfect the appeal must be accompanied by an application to extend the duration of the order ofrecognizance or bail. The granting of an extension of time to perfect the appeal does notautomatically extend the order of recognizance or bail. Unless the intermediate appellate courtexpressly continues that order it will expire (see subd. 5[b]).

Finally, note the provision of CPL § 510.30(2)(a)(vii) directing the court to take into account “themerit or lack of merit of the appeal” as one of the factors to be considered in the case of anapplication for bail or recognizance pending appeal. After judgment is entered, that factor alonewould justify rejection of an application for a stay (id., subd. 2[b]; see also Practice Commentariesfor CPL § 460.50).

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§ 530.50 Order of recognizance or bail; during pendency of appeal

A judge who is otherwise authorized pursuant to section 460.50 or section 460.60 to issue an orderof recognizance or bail pending the determination of an appeal, may do so unless the defendantreceived a class A felony sentence or a sentence for any class B or class C felony offense defined inarticle one hundred thirty of the penal law committed or attempted to be committed by a personeighteen years of age or older against a person less than eighteen years of age.


This section simply serves as a cross reference to the procedure for obtaining recognizance or bailafter sentence pending the outcome of an appeal from the judgment or sentence (see PracticeCommentaries for CPL §§ 460.50, 460.60). Apparently the original purpose of the statute was toimpose the exclusion applicable to a class A felony sentence, which subsequently was expanded toinclude the class B and C felonies specified.

The right to post conviction bail is purely a matter of statute (see People v. Wortschafter, 1953, 305N.Y. 515, 519-520, 114 N.E.2d 18) and the present statute prohibits recognizance or bail fordefendants who received sentences for the crimes specified herein. Thus there is no court withauthority to grant recognizance or bail to any such defendant. Further, due to the absence of astatutory or constitutional right, habeas corpus is not available. People ex rel. Hinspeter v.Senkowski, 12 A.D.3d 23, 783 N.Y.S.2d 386 (2d Dept. 2004), lv. dismissed, 4 N.Y.3d 753, 790N.Y.S.2d 643, 823 N.E.2d 1290.

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§ 530.60 Order of recognizance or bail; revocation thereof

1. Whenever in the course of a criminal action or proceeding a defendant is at liberty as a result ofan order of recognizance or bail issued pursuant to this chapter, and the court considers it necessaryto review such order, it may, and by a bench warrant if necessary, require the defendant to appearbefore the court. Upon such appearance, the court, for good cause shown, may revoke the order ofrecognizance or bail. If the defendant is entitled to recognizance or bail as a matter of right, thecourt must issue another such order. If he or she is not, the court may either issue such an order orcommit the defendant to the custody of the sheriff. Where the defendant is committed to the custodyof the sheriff and is held on a felony complaint, a new period as provided in section 180.80 of thischapter shall commence to run from the time of the defendant's commitment under this subdivision.

2. (a) Whenever in the course of a criminal action or proceeding a defendant charged with thecommission of a felony is at liberty as a result of an order of recognizance or bail issued pursuant tothis article it shall be grounds for revoking such order that the court finds reasonable cause tobelieve the defendant committed one or more specified class A or violent felony offenses orintimidated a victim or witness in violation of sections 215.15, 215.16 or 215.17 of the penal lawwhile at liberty. Before revoking an order of recognizance or bail pursuant to this subdivision, thecourt must hold a hearing and shall receive any relevant, admissible evidence not legally privileged.The defendant may cross-examine witnesses and may present relevant, admissible evidence on hisown behalf. Such hearing may be consolidated with, and conducted at the same time as, a felonyhearing conducted pursuant to article one hundred eighty of this chapter. A transcript of testimonytaken before the grand jury upon presentation of the subsequent offense shall be admissible asevidence during the hearing. The district attorney may move to introduce grand jury testimony of awitness in lieu of that witness' appearance at the hearing.

(b) Revocation of an order of recognizance or bail and commitment pursuant to this subdivisionshall be for the following periods, either:

(i) For a period not to exceed ninety days exclusive of any periods of adjournmentrequested by the defendant; or

(ii) Until the charges contained within the accusatory instrument have been reducedor dismissed such that no count remains which charges the defendant withcommission of a felony; or

(iii) Until reduction or dismissal of the charges contained within the accusatoryinstrument charging the subsequent offense such that no count remains whichcharges the defendant with commission of a class A or violent felony offense.

Upon expiration of any of the three periods specified within this paragraph, whichever is shortest,the court may grant or deny release upon an order of bail or recognizance in accordance with theprovisions of this article. Upon conviction to an offense the provisions of article five hundred thirtyof this chapter shall apply.

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(c) Notwithstanding the provisions of paragraph (a) of this subdivision a defendant, against whom afelony complaint has been filed which charges the defendant with commission of a class A orviolent felony offense committed while he was at liberty as specified therein, may be committed tothe custody of the sheriff pending a revocation hearing for a period not to exceed seventy-twohours. An additional period not to exceed seventy-two hours may be granted by the court uponapplication of the district attorney upon a showing of good cause or where the failure to commencethe hearing was due to the defendant's request or occurred with his consent. Such good cause mustconsist of some compelling fact or circumstance which precluded conducting the hearing within theinitial prescribed period.

SUPPLEMENTARY PRACTICE COMMENTARIESby Peter Preiser

2012

Subdivision one was amended in 2011 to clarify the procedure for dealing with the seizure bywarrant and possible recommitment ordered of defendants originally released on recognizancepursuant to CPL § 180.80 who have failed to appear in court when required.

The amendment clarifies procedure in two respects. First, although trial courts have customarilyutilized this section to retake a defendant released on recognizance pursuant to § 180.80 who failedto appear when required, it was not clear that the section actually covered those released pursuant to§ 180.80 because it's stated applicability was for persons at liberty pursuant to this article and CPL§ 180.80 is not within this article. By amending applicability to persons released pursuant to thischapter rather than simply this article, it now is clear that the section covers those released onrecognizance pursuant to CPL § 180.80.

Second, in cases where courts have remanded § 180.80 released defendants upon their appearancepursuant to a warrant there has been no CPL provision governing whether or when these defendantsmay be entitled to rerelease if the felony complaint remains undisposed of, although some courtshave customarily set new § 180.80 dates. The amendment now codifies a defendant's right torerelease by providing that a new § 180.80 period will commence from the time of defendant'scommitment under this subdivision.

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This section embodies two concepts of securing order review. Subdivision one deals with reviewbased upon the traditional pre-trial securing order criterion where the objective is to determine “thekind and degree of control or restriction that is necessary to secure [the defendant's] courtattendance when required” (CPL § 510.30[2]). And subdivision two authorizes a form of preventivedetention.

Review and revocation of an order of recognizance or bail under subdivision one would have to bebased upon some factor brought to the attention of the court that has a material bearing upon theprobability of defendant's future attendance (as outlined in CPL § 510.30[2](a)). The statuterequires good cause shown and thus, as with the initial decision as to recognizance or bail: (a) thecourt's action cannot be arbitrary; and (b) the defendant is entitled to at least a summary hearing(see Practice Commentaries for CPL § 510.20; cf., People v. Outley, 1993, 80 N.Y.2d 702, 594N.Y.S.2d 683, 610 N.E.2d 356).

Note however, that in cases where recognizance or bail is mandatory--i.e., offenses that are notfelonies--upon revoking recognizance or bail the court must fix a new order of recognizance or bail,presumably one with stiffer terms.

Subdivision two was added in 1981, some years before Congress authorized federal courts toimpose preventive detention (see 18 U.S.C. § 3142), which was upheld against federalconstitutional challenge by United States v. Salerno, 1987, 107 S.Ct. 2095, 481 U.S. 739, 95L.Ed.2d 697. As originally enacted, subdivision two did not include intimidation of a victim or awitness as a cause for revocation. That was added by amendment in 1986 and settled the uncertaintyregarding whether revocation of recognizance or bail could be based upon victim or witnessintimidation (compare People v. Torres, 112 Misc.2d 145, 446 N.Y.S.2d 969 [1981] with People v.Saulnier, 129 Misc.2d 151, 492 N.Y.S.2d 897 [1985]).

The procedure that must be followed for the preventive detention revocation authorized bysubdivision two is far more extensive than the summary type applicable to subdivision one. Herethe defendant has a right to cross-examine witnesses (except where grand jury testimony isintroduced) and present relevant evidence on his or her behalf. Unfortunately, use of the term“admissible evidence” in paragraph (a) creates an ambiguity, because it is not clear whether theintention is to restrict the proof to only competent evidence admissible at a criminal trial. It seemsnot though, because the statute specifically permits use of grand jury minutes as evidence.

Apart from this, note that legislation enacted in 1981 separately dealt with victim and witnessintimidation by persons released on recognizance or bail. CPL § 530.13[1(b)], establishing that suchconduct can be prosecuted for contempt as a violation of an order of protection for victims ofcrimes other than family offenses and can justify revocation of recognizance or bail andcommitment (id., subd. 11[a]).

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Finally, most likely by legislative oversight, when subdivision two was amended in 1986 to make itapplicable to victim and witness intimidation, there was no amendment to paragraph ©, so that theauthorization for temporary commitment pending a revocation hearing does not apply to allegationsof such conduct, even though one would think that temporary commitment would be quiteimportant.

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§ 530.70 Order of recognizance or bail; bench warrant

1. A bench warrant issued by a superior court, by a district court, by the New York City criminalcourt or by a superior court judge sitting as a local criminal court may be executed anywhere in thestate. A bench warrant issued by a city court, a town court or a village court may be executed in thecounty of issuance or any adjoining county; and it may be executed anywhere else in the state uponthe written endorsement thereon of a local criminal court of the county in which the defendant is tobe taken into custody. When so endorsed, the warrant is deemed the process of the endorsing courtas well as that of the issuing court.

2. A bench warrant may be addressed to: (a) any police officer whose geographical area ofemployment embraces either the place where the offense charged was allegedly committed or thelocality of the court by which the warrant is issued; or (b) any uniformed court officer for a court inthe city of New York, the county of Nassau, the county of Suffolk or the county of Westchester orfor any other court that is part of the unified court system of the state for execution in the buildingwherein such court officer is employed or in the immediate vicinity thereof. A bench warrant mustbe executed in the same manner as a warrant of arrest, as provided in section 120.80, and followingthe arrest, such executing police officer or court officer must without unnecessary delay bring thedefendant before the court in which it is returnable; provided, however, if the court in which thebench warrant is returnable is a city, town or village court, and such court is not available, and thebench warrant is addressed to a police officer, such executing police officer must withoutunnecessary delay bring the defendant before an alternate local criminal court, as provided insubdivision five of section 120.90; or if the court in which the bench warrant is returnable is asuperior court, and such court is not available, and the bench warrant is addressed to a policeofficer, such executing police officer may bring the defendant to the local correctional facility of thecounty in which such court sits, to be detained there until not later than the commencement of thenext session of such court occurring on the next business day.

2-a. A court which issues a bench warrant may attach thereto a summary of the basis for thewarrant. In any case where, pursuant to subdivision two of this section, a defendant arrested upon abench warrant is brought before a local criminal court other than the court in which the warrant isreturnable, such local criminal court shall consider such summary before issuing a securing orderwith respect to the defendant.

3. A bench warrant may be executed by (a) any officer to whom it is addressed, or (b) any otherpolice officer delegated to execute it under circumstances prescribed in subdivisions four and five.

4. The issuing court may authorize the delegation of such warrant. Where the issuing court has soauthorized, a police officer to whom a bench warrant is addressed may delegate another policeofficer to whom it is not addressed to execute such warrant as his or her agent when:

(a) He or she has reasonable cause to believe that the defendant is in a particular county other thanthe one in which the warrant is returnable; and

(b) The geographical area of employment of the delegated police officer embraces the localitywhere the arrest is to be made.

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5. Under circumstances specified in subdivision four, the police officer to whom the bench warrantis addressed may inform the delegated officer, by telecommunication, mail or any other means, ofthe issuance of the warrant, of the offense charged in the underlying accusatory instrument and ofall other pertinent details, and may request him or her to act as his or her agent in arresting thedefendant pursuant to such bench warrant. Upon such request, the delegated police officer is to thesame extent as the delegating officer, authorized to make such arrest pursuant to the bench warrantwithin the geographical area of such delegated officer's employment. Upon so arresting thedefendant, he or she must without unnecessary delay deliver the defendant or cause him or her to bedelivered to the custody of the police officer by whom he or she was so delegated, and the lattermust then without unnecessary delay bring the defendant before the court in which such benchwarrant is returnable.

6. A bench warrant may be executed by an officer of the state department of corrections andcommunity supervision or a probation officer when the person named within the warrant is underthe supervision of the department of corrections and community supervision or a department ofprobation and the probation officer is authorized by his or her probation director, as the case maybe. The warrant must be executed upon the same conditions and in the same manner as is otherwiseprovided for execution by a police officer.

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A “bench warrant” differs from a “warrant of arrest” in that it is used to achieve the appearance of adefendant previously released on recognizance or bail in a pending criminal action, as distinguishedfrom obtaining initial appearance for arraignment in the action (see definition, CPL § 1.20[28], [29],[30]).

Due to a specific jurisdictional limitation in the state constitution (art. VI, § 1 c) warrants issued bytown, village and city courts are valid process only in the county of issuance and those adjoining it.Hence the somewhat clumsy procedure for “adoption” of the warrant by a local criminal court ofthe jurisdiction where the arrest is to be made, if there is need to make it in a county other than thecounty of issuance or one that adjoins it (see subd. 1).

Originally, bench warrants could be addressed only to a police officer. By amendment in 1976uniformed court officers in certain counties--who are peace officers and not police officers (seeCPL § 2.10[21](a))--were added as well, ostensibly to permit them to make arrests of waywarddefendants they happened to recognize in and around the courthouse. Apart from this, note thatparole and probation officers are authorized to execute bench warrants when the person named inthe warrant is under their supervision (see subd. 6).

The delegation process spelled out in subdivisions three, four and five lacks practical rationale. Itapparently is a hangover from the unsuccessful attempt of the CPL revisors to impose geographicallimitations upon exercise of police officer authority. It is especially incongruous in view of the factthat the failure of revision attempt perpetuated the authority of police officers to make a warrantlessarrest for a crime anywhere in the state, irrespective of “geographical area of employment” (seePractice Commentary for CPL § 140.10 at page 18). In any event, warrant forms customarily usedcontain a printed clause pre-approving the formality of delegation (see e.g., West's McKinney'sForms for the Criminal Procedure Law, Vol. 18B, §§ 530.28-530.30).

As provided in subdivision two the mechanics of execution are the same as for execution of awarrant of arrest (see Practice Commentaries for CPL §§ 120.80 and 120.90).

Subdivision two-a was added in 1990 in conjunction with an amendment to subdivision two thatprovides for the use of alternate local criminal courts if a defendant is arrested on a bench warrantissued by a city, town or village court at a time when the issuing court is not in session. Thealternate court provision is the same as the one added for warrants of arrest (see CPL § 120.90[5]).Since the alternate court will be required to fix a securing order, subdivision two-a provides theissuing court with a procedural vehicle to alert the alternate court to pertinent factors relevantthereto.

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§ 530.80 Order of recognizance or bail; surrender of defendant

1. At any time before the forfeiture of a bail bond, an obligor may surrender the defendant in hisexoneration, or the defendant may surrender himself, to the court in which his case is pending or tothe sheriff to whose custody he was committed at the time of giving bail, in the following manner:

(a) A certified copy of the bail bond must be delivered to the sheriff, who must detain the defendantin his custody thereon, as upon a commitment. The sheriff must acknowledge the surrender by acertificate in writing, and must forthwith notify the court in which the case is pending that suchsurrender has been made.

(b) Upon the bail bond and the certificate of the sheriff, or upon the surrender to the court in whichthe case is pending, such court must, upon five days notice to the district attorney, order that the bailbe exonerated. On filing such order, the bail is exonerated accordingly.

2. For the purpose of surrendering the defendant, an obligor or the person who posted cash bail forthe defendant may take him into custody at any place within the state, or he may, by a writtenauthority indorsed on a certified copy of the bail bond, empower any person over twenty years ofage to do so.

3. At any time before the forfeiture of cash bail, the defendant may surrender himself or the personwho posted bail for the defendant may surrender the defendant in the manner prescribed insubdivision one. In such case, the court must order a return of the money to the person who postedit, upon producing the certificate of the sheriff showing the surrender, and upon a notice of fivedays to the district attorney.


This section establishes a procedure for surrender of a defendant and exoneration of bail, if eitherthe obligor or the defendant has reason to pursue that course of action. This would usually be wherethe obligor who posted the bail has reason to feel the defendant will not appear as required and thatthe proceeds of the bond or the cash posted are in jeopardy.

The procedure authorized here can be utilized only before forfeiture of the bond or cash. Afterforfeiture, the only way to save the proceeds of the bond or the cash forfeited is by application tothe court for discharge of the forfeiture (see CPL § 540.10) or application for its remission (see CPL§ 540.30).

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§ 540.10 Forfeiture of bail; generally

1. If, without sufficient excuse, a principal does not appear when required or does not renderhimself amenable to the orders and processes of the criminal court wherein bail has been posted, thecourt must enter such facts upon its minutes and the bail bond or the cash bail, as the case may be,is thereupon forfeited.

2. If the principal appears at any time before the final adjournment of the court, and satisfactorilyexcuses his neglect, the court may direct the forfeiture to be discharged upon such terms as are just.If the forfeiture is not so discharged and the forfeited bail consisted of a bail bond, the districtattorney, within one hundred twenty days after the adjournment of the court at which such bond wasdirected to be forfeited, must proceed against the obligor or obligors who executed such bond, inthe manner prescribed in subdivision three. If the forfeited bail consisted of cash bail, the countytreasurer with whom it is deposited shall give written notice of the forfeiture to the person whoposted cash bail for the defendant [FN1] may at any time after the final adjournment of the court orforty-five days after notice of forfeiture required herein has been given, whichever comes later,apply the money deposited to the use of the county.

3. A bail bond or cash bail, upon being forfeited, together with a certified copy of the order of thecourt forfeiting the same, must be filed by the district attorney in the office of the clerk of thecounty wherein such order was issued. Such clerk must docket the same in the book kept by him fordocketing of judgments and enter therein a judgment against the obligor or obligors who executedsuch bail bond for the amount of the penalty of said bond or against the person who posted the cashbail for the amount of the cash bail, and the bond and the certified copy of the order of the courtforfeiting the bond or the cash bail constitutes the judgment roll. Such judgment constitutes a lienon the real estate of the obligor or obligors who executed such bail bond from the time of the entryof the judgment. An execution may be issued to collect the amount of said bail bond in the sameform and with the same effect as upon a judgment recovered in an action in said county upon a debtin favor of the people of the state of New York against such obligor or obligors.

88


Subdivision one furnishes authorization for forfeiture of bail, and the first sentence of subdivisiontwo authorizes the court to discharge the forfeiture. The remaining provisions set forth theprocedure for converting forfeited bail to the use of the public treasury. A separate procedure setforth in CPL § 540.20 applies notwithstanding this section for converting forfeited bail depositedwith city, town and village local criminal courts for appearance in offenses alleged in accusatoryinstruments that do not charge a felony.

In dealing with forfeiture it is important to pinpoint the date upon which forfeiture actually occursbecause this triggers the obligor's loss of the security that was posted, which only can be redeemedthrough a subsequent application for discretionary remission upon a showing of exceptionalcircumstances. Thus, in recognition of the severity of loss, mere failure to appear when requireddoes not forfeit the bail. Bail is forfeited only when the court finds that defendant's failure to appearwas without sufficient excuse, and thus courts will usually afford the defendant or obligor anopportunity to explain before actually ordering forfeiture. Indeed, even when courts do orderforfeiture they frequently will discharge the forfeiture if defendant appears before adjournment.Thus a forfeiture of bail requires an order that can be certified finding that defendant failed toappear without sufficient excuse. People v. Nicholas, 2001, 97 N.Y.2d 24, 734 N.Y.S.2d 557, 760N.E.2d 345.

Under the present section, the statutory procedure for dealing with the bail following the court'sorder of forfeiture differs depending upon whether the bail was posted in the form of a bond or incash. Where bail is posted in the form of a bond, it is necessary to reduce the obligation to ajudgment that can be enforced. Accordingly, subdivision two requires that the district attorneyinitiate the process within one hundred twenty days after the forfeiture is declared by filing acertified copy of the order of forfeiture and the bond with the clerk of the county, who then willenter the amount as a judgment against the obligor. Note especially, that the district attorney'sfailure to comply with this one hundred twenty day filing requirement absolutely bars any remedyfor enforcement of the debt. People v. Schonfeld, 1989, 74 N.Y.2d 324, 547 N.Y.S.2d 266, 546N.E.2d 395.

In the case of cash bail, upon receipt of the order of forfeiture, the treasurer simply gives notice tothe person who posted the bail and the treasurer then may convert same to the use of the county atany time after final adjournment of the court or forty-five days from the date the notice was given,whichever comes later.

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§ 540.20 Forfeiture of bail; certain local criminal courts

Notwithstanding the provisions of section 540.10, when bail has been posted in a city court, towncourt or village court in connection with a local criminal court accusatory instrument, other than afelony complaint, and thereafter such bail is forfeited, the following rules are applicable:

1. If such bail consists of a bail bond, the financial officer of such city, town or village mustpromptly commence an action for the recovery of the sum of money specified in such bond, andupon collection thereof shall pay the same over to the treasurer or financial officer of the city, thesupervisor of the town or the treasurer of the village. Any amount recovered in such action, unlessotherwise provided by law, shall be the property of the city, town or village in which the offensecharged is alleged to have been committed.

2. If such bail consists of cash bail, the local criminal court must:

(a) If it is a city court, pay the forfeited bail to the treasurer or other financial officer of the city.Such forfeited bail, unless otherwise provided by law, is the property of such city.

(b) If it is a town court or a village court, pay the forfeited bail to the state comptroller on or beforethe tenth day of the month next succeeding such forfeiture. Such forfeited bail, unless otherwiseprovided by law, is the property of the town or village in which the offense charged is alleged tohave been committed; provided, however, that when (i) a single amount of bail is posted for morethan a single offense charged, and (ii) the town or village justice court does not attribute a specificamount of bail to each offense, and (iii) forfeited bail for at least two of the offenses would be theproperty of different governmental entities, the entire amount of forfeited bail shall be the propertyof the town or village in which the offenses charged are alleged to have been committed, exceptthat, when forfeited bail for at least one of the offenses would be the property of the state, the entireamount of forfeited bail shall be the property of the state.

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This section prescribes the procedure for collection and disposition of forfeited bail in cases notcovered by CPL § 540.10.

Paragraph (b) of subdivision two was amended in 1991 to solve an administrative problem thatarose in certain cases where cash bail fixed by a town or village court to cover appearances on twoor more offenses is forfeited and the court has not specified a separate amount for each offense. Theproblem was caused by the fact that forfeited bail on specified offenses is claimable by differentpolitical entities under laws providing that for designated offenses forfeited cash bail becomes theproperty of the county or the state rather than the town or village. Prior to the amendment, where adefendant was charged with two or more offenses and forfeited bail for one of them belonged to thecounty or state rather than the town or village, if the court did not allocate the bail to a particularoffense or specify separate amounts for the different offenses when fixing it, there was no rationalway to determine the entity entitled to the forfeited amount.

Under the 1991 revision, if the court does not attribute a specific amount for each offense and oneof the entities is the county, then the town or village still receives the entire amount; but where oneof the entities is the state, the state gets the entire amount. Thus, for example, where a lump sum ofunallocated bail is posted for three charges and forfeited bail for the first would ordinarily go to thetown or village, for the second to the county and for the third to the state, the entire amount wouldgo to the state.

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§ 540.30 Remission of forfeiture

1. After the forfeiture of a bail bond or cash bail, as provided in section 540.10, an application forremission of such forfeiture may be made to a court as follows:

(a) If the forfeiture has been ordered by a superior court, the application must be made in such court;

(b) If the forfeiture has been ordered by a local criminal court, the application must be made to asuperior court in the county, except that if the local criminal court which ordered the forfeiture wasa district court, the application may alternatively be made to that district court.

2. The application must be made within one year after the forfeiture of the bail is declared upon atleast five days notice to the district attorney and service of copies of the affidavits and papers uponwhich the application is founded. The court may grant the application and remit the forfeiture orany part thereof, upon such terms as are just. The application may be granted only upon payment ofthe costs and expenses incurred in the proceedings for the enforcement of the forfeiture.

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Once forfeiture has occurred pursuant to CPL § 540.10(1) the only way cash bail can be retrieved,or an obligor relieved of the obligation under the bond, is an application for remission under thissection. As provided in subdivision one that application must be made to a superior court,irrespective of whether the bail was posted in a local criminal court or a superior court, with thesingle exception, engrafted in 1980, applicable to bail posted in a District Court (a local criminalcourt in Nassau and part of Suffolk counties) permitting application there, rather than in a superiorcourt.

The one year period within which application must be made commences when the court, uponfinding that defendant's failure to appear was without excuse enters an order declaring forfeiture ofthe bail. People v. Nicholas, 2001, 97 N.Y.2d 24, 734 N.Y.S.2d 557, 760 N.E.2d 345 (see alsoPractice Commentaries for CPL § 540.10). Failure to complete application for remission--whichmust include an affidavit stating the basis for relief--prior to expiration of this period constitutes anabsolute bar to remission that cannot be extended by the court or waived by the district attorney.Moreover, the court cannot consider any factor raised or submitted filed after expiration of theperiod. People v. Public Service Mut. Ins. Co., 1975, 37 N.Y.2d 606, 376 N.Y.S.2d 421, 339 N.E.2d128.

There is however a narrow window of escape from the one year limitation. If it can be shown thatthe forfeiture was based upon some error, the one year period will not apply. But in such case itwould appear that the appropriate avenue for relief would be a motion to vacate the forfeiturecoupled with a request for remission of bail. People v. Wirtshafter, 1953, 305 N.Y. 515, 519-520,114 N.E.2d 18; People v. Salabarria, 121 A.D.2d 438, 503 N.Y.S.2d 411 [2d Dept. 1986]; cf.,Seneca Insurance Co. v. People, 40 A.D.3d 1151, 834 N.Y.S.2d 581 (3d Dept. 2007).

Assuming timely application for remission, decision is within the discretion of the court. Applicantwill have the burden of establishing sworn facts showing exceptional circumstances to justify aremission that would promote the ends of justice. People v. Parkin, 1934, 263 N.Y. 428, 431-432,189 N.E. 480. Factors taken into consideration include a justifiable reason for the failure to appear.Of course, if failure to appear was deliberate, chances of recovery are not favored. People v.Continental Casualty Co., 1950, 301 N.Y. 79, 92 N.E.2d 898. However, notwithstanding failure toadvance a justifiable excuse, remission may be ordered if the court finds the indemnitor will sufferextreme financial hardship bordering upon a family's destitution. People v. Fiannaca, 1954, 306N.Y. 513, 516-517, 119 N.E.2d 363; Nationwide Bail Bonds/ International Fidelity Ins. Co. v.People, 244 A.D.2d 556, 665 N.Y.S.2d 575 (2d Dept. 1997).

Finally, note that an appeal from a determination on an application for remission is governed bystatutory and constitutional provisions applicable to civil, and not criminal, appeals. People v.Schonfeld, 1989, 74 N.Y.2d 324, 547 N.Y.S.2d 266, 546 N.E.2d 395.

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APPENDIX A

People ex rel McManus v Horn, 18 NY3d 660 (2012)

94

967 N.E.2d 671 Page 1

18 N.Y.3d 660, 967 N.E.2d 671, 944 N.Y.S.2d 448, 2012 N.Y. Slip Op. 02121

(Cite as: 18 N.Y.3d 660, 967 N.E.2d 671, 944 N.Y.S.2d 448)

Court of Appeals of New York.

The PEOPLE of the State of New York ex rel. ShaunMcMANUS, Appellant,

v.Martin F. HORN, Commissioner of the New York City

Department of Corrections, et al., Respondents.March 22, 2012.

Background: Petitioner sought habeas corpus relief,challenging Supreme Court's decision to set only one formof bail. The Supreme Court, Bronx County, MartinMarcus, J., dismissed petition. Petitioner appealed. TheSupreme Court, Appellate Division, 77 A.D.3d 571, 909N.Y.S.2d 357, affirmed. Leave to appeal was granted.

Holding: The Court of Appeals, Graffeo, J., held thatSupreme Court was prohibited under criminal procedurerule from imposing “cash only” bail.

Reversed; declaratory judgment granted.

West Headnotes

[1] Habeas Corpus 197 469

197 Habeas Corpus

197II Grounds for Relief; Illegality of Restraint 197II(B) Particular Defects and Authority forDetention in General 197k469 k. Bail. Most Cited Cases

Bail orders can be reviewed in a habeas corpusproceeding only for an error of law. McKinney's CPLR70.

[2] Habeas Corpus 197 826(3.1)

197 Habeas Corpus

197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)1 In General 197k825 Dismissal 197k826 Mootness 197k826(3) Appeals Not Moot, orConsidered Despite Mootness 197k826(3.1) k. In general. MostCited Cases

Court of Appeals would not dismiss as moot habeaspetitioner's challenge to Supreme Court's decision to setonly one form of bail, even though petitioner had enteredguilty plea to arson and other offenses, such that legalityof his pretrial detention was technically no longergermane, inasmuch as mootness exception appliedbecause propriety of cash-only bail was important issuethat was likely to recur and which typically would evadereview.

[3] Bail 49 73

49 Bail

49II In Criminal Prosecutions 49k73 k. Deposit in lieu of bail. Most Cited Cases

Supreme Court was prohibited under criminalprocedure rule from imposing “cash only” bail, despite itsbelief that defendant had flouted judicial directive and thatstricter bail was required to encourage compliance with itsmandates; Court could have complied with rule byordering second type of bail that, in effect, might bevirtually indistinguishable from cash option. McKinney'sCPL § 520.10(2)(b).

[4] Bail 49 42

49 Bail

49II In Criminal Prosecutions 49k41 Right to Release on Bail 49k42 k. In general. Most Cited Cases

The statute providing that a court “may direct that thebail be posted in any one of two or more” of the listedforms prohibits a court from fixing only one form of bail.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

967 N.E.2d 671 Page 2



McKinney's CPL § 520.10(2)(b).

***448 The Bronx Defenders, Bronx (V. Marika Meis ofcounsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Stanley R.Kaplan and Joseph N. Ferdenzi of counsel), forrespondent.

New York Civil Liberties Union Foundation, New YorkCity (Taylor Pendergrass, Corey Stoughton and ArthurEisenberg of counsel), for New York Civil LibertiesUnion and others, amici curiae.

***449 *662 OPINION OF THE COURT

GRAFFEO, J.**672 In this appeal, we consider whether CPL

520.10(2)(b) prohibits a court from designating only oneform of bail.

Petitioner Shaun McManus was on parole in January2009 when he was arrested for arson in the third degreeand related offenses stemming from two separate incidentsinvolving the same victim. McManus was alleged to haveassaulted the individual and set two of his automobiles onfire. Bail was set at $5,000, cash or bond, whichMcManus posted. The victim was granted a temporaryorder of protection.

*663 McManus subsequently violated the order ofprotection by verbally abusing the victim and twicethreatening him with weapons (a screwdriver and whatappeared to be a handgun). At his arraignment on the newcharges, bail was set at $1,500 for each incident, cash orbond. Because the Division of Parole filed a violationwarrant with the Department of Corrections, McManuswas not released on bail after arraignment.

Based on the first two incidents between McManusand the victim, McManus was indicted for two counts ofarson in the third degree, four counts of aggravatedharassment in the second degree, two counts of criminalmischief in the fourth degree and one count of assault inthe third degree. Supreme Court ordered that bail be set at$20,000, “CASH ONLY.” A few days later, the Peoplemoved to increase the amount of cash bail to $50,000 butthe court denied the application.

When the Division of Parole lifted its hold onMcManus, he tried to secure a bail bond but was unable todo so because the court had designated bail as cash only.This prompted McManus to seek alteration of the bailruling, arguing that setting one form of bail—such ascash-only bail—is prohibited under CPL 520.10(2)(b),which he claimed requires a court to set a secondpermissible form of bail. Supreme Court disagreed andadhered to the $20,000 cash bail order.

[1] McManus then commenced this CPLR article 70proceeding for a writ of habeas corpus.FN1 A differentjustice dismissed the petition, concluding that CPL520.10(2) does not preclude a judge from setting a singleform of bail ( 26 Misc.3d 317, 888 N.Y.S.2d 392 [Sup.Ct., Bronx County 2009] ). The Appellate Divisionaffirmed for the same reason ( 77 A.D.3d 571, 909N.Y.S.2d 357 [1st Dept.2010] ). We granted leave toappeal (16 N.Y.3d 768, 919 N.Y.S.2d 117, 944 N.E.2d654 [2011] ) and now reverse.

FN1. Bail orders can be reviewed under CPLRarticle 70 only for an error of law (see e.g.People ex rel. Lazer v. Warden, N.Y. CountyMen's House of Detention, 79 N.Y.2d 839, 840,580 N.Y.S.2d 183, 588 N.E.2d 81 [1992]; Peopleex rel. Parker v. Hasenauer, 62 N.Y.2d 777,778–779, 477 N.Y.S.2d 320, 477 N.Y.S.2d 320[1984]; People ex rel. Rosenthal v. Wolfson, 48N.Y.2d 230, 232–233, 422 N.Y.S.2d 55, 397N.E.2d 745 [1979]; Preiser, PracticeCommentaries, McKinney's Cons. Laws of N.Y.,Book 11A, CPL 510.20, at 21).

[2] As an initial matter, it is necessary to addresswhether this appeal became moot after McManus entereda guilty plea to arson in the fourth degree and otheroffenses. As a result of the plea, the legality of his pretrialdetention is technically no longer germane since thatcustody was terminated (see e.g. People ex rel. Chakwinv. Warden, N.Y. City Correctional Facility, Rikers Is., 63N.Y.2d 120, 125, 480 N.Y.S.2d 719, 470 N.E.2d 146[1984] ). Nevertheless, the mootness *664 exceptionapplies under these circumstances because **673 ***450the propriety of cash-only bail is an important issue that islikely to recur and which typically will evade our review


967 N.E.2d 671 Page 3



(see e.g. City of New York v. Maul, 14 N.Y.3d 499, 507,903 N.Y.S.2d 304, 929 N.E.2d 366 [2010]; Matter ofHearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). We thereforedecline to dismiss this appeal.FN2

FN2. [1] In light of the fact that McManus nolonger needs affirmative habeas corpus relief,this proceeding is converted into a declaratoryjudgment action (see Matter of Blossom ViewNursing Home v. Novello, 4 N.Y.3d 581, 584 n.1, 596, 797 N.Y.S.2d 370, 830 N.E.2d 268[2005] ).

Section 520.10 of the Criminal Procedure Lawdelineates the authorized forms of bail and the methods bywhich bail may be set by a court. Nine categories of bailare permitted under subdivision (1) of the statute: (1) cash;(2) an insurance company bail bond; (3) a secured suretybond; (4) a secured appearance bond; (5) apartially-secured surety bond; (6) a partially-securedappearance bond; (7) an unsecured surety bond; (8) anunsecured appearance bond; and (9) by posting bail witha credit card or similar device (see CPL 520.10[1][a]-[i] ).

Subdivision (2) of the statute specifies two distinct“methods of fixing bail.” The first option permits a courtto “designate the amount of the bail without designatingthe form or forms in which it may be posted”—in suchinstance, the court merely declares a monetary sum. If thisoccurs, the accused can post either an unsecured suretybond or an unsecured appearance bond (see CPL520.10[2][a] ). The second option states that a “court maydirect that the bail be posted in any one of two or more ofthe forms specified in subdivision one, designated in thealternative, and may designate different amounts varyingwith the forms” (CPL 520.10[2][b] ).

McManus asserts that cash-only bail is illegal underCPL 520.10(2)(b) because that statutory provision doesnot authorize a court to fix a single form of designatedbail; he maintains that the subdivision instead requires thatat least two forms of bail be ordered. In support of thisclaim, McManus relies on the language in subdivision(2)(b) referring to “any one of two or more of the forms”of bail enumerated in subdivision (1). The DistrictAttorney contests that interpretation and asserts that a

single form of bail is permissible because subdivision(2)(a) references a singular “form” of bail and the word“may” rather than “must” appears in paragraphs (a) and(b) of subdivision (2).

*665 As the District Attorney observes, the referenceto a single “form” of bail arguably suggests that theLegislature intended a court to have discretion to imposeonly one type of bail. Moreover, the use of the word“may” in conjunction with the reference to two or morebail alternatives could be interpreted to mean that otherunspecified options—including a single form of bail—arenot outlawed by CPL 520.10.

Both parties' contentions have some degree oflinguistic merit. However, in our view, defendant'sproposed construction is the better reading of the statuteas it comports with the overall statutory structure and thelegislative purpose that prompted the enactment of section520.10 in the Criminal Procedure Law. Inclusion of theword “may” in both subdivisions was the simplest way forthe Legislature to codify the two permissible methods forfixing bail: under subdivision (2)(a), a court may order aspecific amount of bail without stating any particular bailform (in which case the accused may choose either anunsecured surety bond or an unsecured **674 ***451appearance bond); or, under subdivision (2)(b), a courtmay specify the forms of bail but the defendant is entitledto at least two alternative choices. The Legislature couldnot have used the word “must” in either provision becausethat would have defeated the court's discretion to choosebetween the two options for fixing bail.

Providing flexible bail alternatives to pretrialdetainees—who are presumptively innocent until provenguilty beyond a reasonable doubt—is consistent with theunderlying purpose of article 520. The legislation wasintended to reform the restrictive bail scheme that existedin the former Code of Criminal Procedure in order toimprove the availability of pretrial release (see e.g.Bellamy v. Judges in N.Y. City Crim. Ct., 41 A.D.2d 196,202, 342 N.Y.S.2d 137 [1st Dept.1973], aff'd 32 N.Y.2d886, 346 N.Y.S.2d 812, 300 N.E.2d 153 [1973]; Mem. ofCommn. on Rev. of Penal Law and Crim. Code, BillJacket, L. 1970, ch. 996, at 10). Subsequent amendmentsfurther loosened those strictures (see Preiser, PracticeCommentaries, McKinney's Cons. Laws of N.Y., Book


967 N.E.2d 671 Page 4



11A, CPL 520.10, at 51).

[3] CPL 520.10(2)(b) imposes no undue restriction ona court that believes a substantial personal undertaking “isnecessary to secure [the defendant's] court attendance” infuture proceedings (CPL 510.30 [2][a] ). Here, the bailcourt evidently decided that $20,000 cash bail waswarranted because McManus had flouted a judicialdirective by repeatedly engaging in criminal conducttoward the subject of the temporary order of protection. Ajudge could reasonably conclude that a person who has*666 already violated a judicial edict is more likely toignore another command—such as an instruction to appearin court—and therefore impose stricter bail to encouragecompliance with the court's mandates. If a court believesthat $20,000 cash bail is an effective method to achievethis objective, CPL 520.10(2)(b) allows it to be orderedalong with a second type of bail that, in effect, may bevirtually indistinguishable from the cash option. Forinstance, the judge could order as an alternative a$200,000 partially-secured appearance bond requiring amonetary deposit of 10% (see CPL 500.10[18] ), or a$20,000 secured appearance bond that could be satisfiedwith (among other things) $20,000 in cash (see CPL500.10[17][a] ). Hence, there does not appear to have beena compelling need for the Legislature to authorize a singleform of bail in CPL 520.10(2)(b).

We also reject the District Attorney's reliance oncases in which a court decides to order $1 cash bail. TheDistrict Attorney posits that there is no valid reason for analternative type of bail in this situation. While this may betrue from a practical standpoint, it fails to account for theunderlying purpose of ordering $1 cash bail. A defendantwho refrains from posting the $1 can receive credit fortime served when there is some other reason that preventshis release from custody, such as an inability to post bailin an unrelated matter. Since $1 cash bail is ordered forthe benefit of the accused, it is not surprising that noobjection would be raised to the lack of an alternativeform. In any event, it will take little judicial effort in sucha situation to order another form of bail, which must nowbe done routinely to properly comply with the statute.

For these reasons, we hold that CPL 520.10(2)(b)prohibits a court from fixing only one form of bail.

[4] Accordingly, the order of the Appellate Divisionshould be reversed, without costs, the proceedingconverted to a declaratory judgment action and judgmentgranted declaring that CPL 520.10(2)(b) prohibits thedesignation of one form of bail.

**675 ***452 Chief Judge LIPPMAN and JudgesCIPARICK, READ, SMITH, PIGOTT and JONESconcur.

Order reversed, etc.N.Y.,2012.

People ex rel. McManus v. Horn18 N.Y.3d 660, 967 N.E.2d 671, 944 N.Y.S.2d 448, 2012N.Y. Slip Op. 02121END OF DOCUMENT


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OVERVIEW OF THE BEGINNING STAGES OF A CRIMINAL CASE