2020 BAIL AMENDMENTS Effective July 2, 2020 NYSDA, July 27, 2020

7/23/2020

SUMMARY I. BAIL ELIGIBLE CHARGES EXPANDED MORE VIOLENT FELONIES MORE NON-VIOLENT FELONIES MORE CLASS A MISDEMEANORS NEW CATEGORY: FOR REPEAT OFFENSES II. TWEAKS EXPANSION OF NON-MONETARY CONDITIONS ELECTRONIC MONITORING DATA COLLECTION RETURN DATE FOR APPEARANCE TICKETS II. CLARIFICATIONS guilty pleas/verdicts contact information III. SOME RECENT DECISIONS

1 7/23/2020

I. Bail eligible charges expanded

VIOLENT FELONIES:

• BURGLARY 2ND (140.25(2)) “only where the defendant is charged with entering the living area of the dwelling”

• STRANGULATION 2ND (121.12)(note: this is a D violent so it was already a qualifying)

• SEX TRAFFICKING (230.34)(note: 230.34(5)(a) &(b) were already violent B felonies so already a qualifying)

• SEX TRAFFICKING – CHILD (230.34-a) (B violent, so already a qualifying)

2 7/23/2020

Dwelling – but not a living area

• Screened in porch. People v. Rivera, 301 A.D.2d 787 (3rd Dept. 2003) • Attached mud room and garage, People v. Carducci, 143 A.D.3d 1260 (4th Dept. 2016) • Attached garage, People v. Willis, 165 A.D.3d 984 (2nd Dept. 2018) • Basement, storage room in residential building, People v. Cohen, 204 A.D.2d 159 (1st Dept. 1994)(paint supplies)

Not a Dwelling:

• Mixed use: Museum within a hotel, not a dwelling burglary, because sealed off from hotel. People v. McCray, 23 N.Y.3d 621 (2014)

• Mixed use: deli in basement of residential. People v. Joseph, 28 N.Y.3d 1003 (2016)

• If not sealed off or locked off – then still not bail eligible even though it may still be a burglary 2.

3 7/23/2020

A vestibule is not a part of the “dwelling”

Is it locked or unlocked? • People v. Sanchez, 209 A.D.2d 265 (1st Dept. 1994) - unlocked • People v. Taufiq, 115 A.D.3d 887 (2nd Dept. 2014)(CW testified vestibule was locked, but landlord had key and no signs of forced entry).

NON-VIOLENT FELONIES • CLASS A-I DRUG FELONIES • ALL HOMICIDES (manslaughters, negligent homicides) • And, because language is “ANY CRIME THAT THAT IS ALLEGED TO HAVE CAUSED THE DEATH OF ANOTHER PERSON” it could include VTL 511 (if accidentally causes death), VTL 600 (leaving the scene of an accident, if the driver causes death). • FAILURE TO REGISTER UNDER SORA WHERE DEFENDANT IS CLASSIFIED LEVEL 3, Corr. L. 168 et al. (1st offense, E felony) • ENDANGERING THE WELFARE OF A CHILD WHERE DEFENDANT IS CLASSIFIED LEVEL 3, Corr. L. 168 et al. • SEX TRAFFICKING, 230.34(1)-(4) and (5)(c – h) (B felony) • MONEY LAUNDERING IN SUPPORT OF TERRORISM 3RD AND 4TH, 470.22 (D felony) & 470.21(E felony) • PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD, 263.15 (D felony) • AGGRAVATED VEHICULAR ASSAULT, 120.04-a (C felony), VEHICULAR ASSAULT 1ST, 120.04 (D felony)

4 7/23/2020

Continued… • ASSAULT IN THE 3RD AS HATE CRIME (E FELONY) • ARSON 3RD AS HATE CRIME (B FELONY) • AGGRAVATED ASSAULT UPON A PERSON LESS THAN 11 YEARS OLD, 120.12 (E FELONY) • CRIMINAL POSSESSION OF A WEAPON ON SCHOOL GROUNDS, 265.01-a (E felony) (a student brings a rifle, shotgun, or firearm to school, college or university) • GRAND LARCENY 1ST , 155.42 (B felony)($1M) • ENTERPRISE CORRUPTION, 460.20 (B FELONY) • MONEY LAUNDERING 1ST, 470.20 (B FELONY) • BAIL JUMPING 1ST AND 2ND, , 215.57 & 215.56 (D AND E FELONIES) • ESCAPE 1ST AND 2ND , 205.15 & 205.10 (D AND E FELONIES) • UNLAWFUL IMPRISONMENT 1ST, 135.10 (E felony)

Class A Misdemeanors

• DOMESTIC VIOLENCE: OBSTRUCTION OF BREATHING, 121.11

• ENDANGERING WELFARE OF A CHILD, 260.10 – ONLY IF A LEVEL 3 (highest) SEX OFFENDER

• BAIL JUMPING 3RD , 215.55

• ESCAPE 3RD , 205.05

5 7/23/2020

FOR REPEAT OFFENSES/ARRESTS

• ANY FELONY WHILE SENTENCED TO PROBATION OR POST RELEASE SUPERVISION, 510.10(4)(r) • ANY FELONY IF QUALIFIES FOR LIFE SENTENCE AS A DISCRETIONARY PERSISTENT OFFENDER UNDER PENAL LAW 70.10, 510.10(4)(s) • FELONY or Class A Misdemeanor WHERE “HARM” OCCURRED TO AN IDENTIFIABLE PERSON OR PROPERTY WHILE OUT ON A SEPARATE FELONY OR CLASS A MISDEMEANOR WHERE HARM OCCURRED TO AN IDENTIFIABLE PERSON OR PROPERTY. PROSECUTORS MUST SHOW “REASONABLE CAUSE” THAT THE DEFENDANT COMMITTED BOTH OFFENSES, 510.10(4)(t)

4(r): ANY felony while serving a sentence of probation or while released on post- release supervision excludes: interim probation, parole or conditional release from indeterminate sentence.

6 7/23/2020

4(s): ANY felony and qualifies as a persistent felony offender “where the defendant qualifies for sentencing on such charge as a persistent felony offender pursuant to section 70.10 of the penal law.”

70.10 applies only after a person ”stands convicted” so a person merely charged with a felony does not qualify as a persistent felony offender.

Review the rap sheet carefully: did the person have two separate PRISON terms imposed? The sequentiality rule applies.

Excludes mandatory persistent violent felony “offender”. See Penal Law § 70.10 (1)(a) (“A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08).

The DLRA eliminated life sentences for drug/marijuana felony offenses.

7 7/23/2020

(4)(t): REPEAT OFFENSES/ARRESTS

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

What if the person posted bail and then was rearrested?

8 7/23/2020

Repeat offenses/arrests:

Reminder: under 530.60, the prosecution can move to change the securing order for only the “underlying” crime.

NOW: under 510.10(4)(t) – the prosecution must show “reasonable cause” that the person committed the “new” crime AND the “underlying” crime.

”HARM”

TO AN IDENTIFIABLE PERSON OR PROPERTY • physical harm • Injury to a person or damage to property • Must be an element of the crime –

9 7/23/2020

Why the word “harm”? – could it be because a person cannot cause “injury” to property? Could it be because you cannot damage a person? “HARM” in a broad sense includes injury AND damage

“material harm” in the stalking statute – specifies that the harm can be “mental or emotional” – the legislature could have done so with the amendments.

As a practical matter, the statute would be unworkable if “harm” was understood to refer to matters not discernable from the elements of the charged crimes. Whether a crime is a qualifying offense for bail or remand is a threshold question that must be determined at arraignment. The amendment requires the prosecutor to “show reasonable cause to believe that the defendant committed the instant crime and [the preceding] underlying crime.” This obligation simply mirrors well established constitutional and statutory requirements for judicial review of probable cause at arraignment (see Gerstein v. Pugh, 420 U.S. 103 (1975); CPL §140.45). The subsection makes no mention of any additional burden of proof concerning the “harm” element of the prior charge and the current one, an omission that clearly reflects the legislature’s understanding that the harm determination would be subsumed within the probable cause determination itself. Because the legislature included no statutory mechanism for consideration of extraneous proof, courts must review the charging documents to determine whether they establish reasonable cause to believe the defendant twice caused physical harm to an identified person (e.g., physical injury) or property (i.e., damage). In short, “harm” must be an element of the crime and not one that can be inferred by the nature of the crime. Al O’Connor (BDS)

10 7/23/2020

Constitutional implications:

The harm should be an element of the offense: assault (injury), criminal mischief (damage), robbery with injury, etc.

Otherwise, why require the prosecution to show “reasonable cause” – as to all the elements of the underlying offense and the new offense? Gerstein v. Pugh, 420 U.S. 103 (1975); CPL §140.45

EXPANSION OF NON-MONETARY CONDITIONS OF RELEASE “...shall be the least restrictive conditions that will reasonably assure the principal's return to court and reasonably assure the principal's compliance with court conditions.”

Conditions to assure compliance with conditions …

11 7/23/2020

II. TWEAKS

NON-EXCLUSIVE (JUDGE CAN ADD MORE even if NOT SPECIFIED by statute): • SURRENDER PASSPORT • MANDATORY PROGRAMS (counseling, treatment, intimate partner violence, placement in hospital under MHL 9.43) WHILE IN PRE-TRIAL SERVICES – no longer maintaining contact or just “supervision” • REFRAIN FROM “ASSOCIATING” WITH PERSON CONNECTED TO THE ALLEGED CRIME (not just victims and eyewitnesses, also co- defendants) • MAKE DILIGENT EFFORTS TO MAINTAIN EMPLOYMENT HOUSING OR ENROLLMENT IN SCHOOL/EDUCATIONAL PROGRAMMING • OBEY AN ORDER OF PROTECTION • CONDITIONS SET BY COURT ADDRESSED TO SAFETY OF VICTIM OF FAMILY OFFENSE, INCLUDING REASONABLE CONDITIONS REQUESTED BY OR BEHALF OF VICTIM

12 7/23/2020

ELECTRONIC MONITORING

• MUNICIPALITIES CAN CONTRACT WITH PRIVATE COMPANIES BUT THE COMPANIES CANNOT INTERACT WITH DEFENDANT • DEFENDANT STILL CANNOT BE MADE TO PAY FOR ANY CONDITIONS OF RELEASE, INCLUDING ELECTRONIC MONITORING.

DATA COLLECTION BY OCA AND DCJS

• DISAGGREGATED TO PROTECT CONFIDENTIALITY OF DEFENDANTS.

• RACE, GENDER, ETHNIC, CHARGE TYPE, RELEASE, RELEASE WITH CONDITIONS, BAIL, DETENTION, LENGTH OF TIME IN JAIL, OUTCOMES

13 7/23/2020

APPEARANCE TICKETS

20 DAY RETURN PERIOD EXTENDED IF COURT DOES NOT MEET WITHIN 20 DAYS OF THE ISSUANCE DATE

III. CLARIFICATIONS

14 7/23/2020

BAIL/REMAND AUTHORIZED FOR CONVICTION BUT PENDING SENTENCE OR APPEAL. Including B misdemeanors (violations)?

CONTACT INFORMATION, CPL 510.43

IF DEFENDANT REFUSES TO PROVIDE THEN HE OR SHE FORFEITS THE RIGHT TO GET COURT NOTIFICATION. • consequence for intentionally failing to provide contact information is NOT a willfulness or agreement to have bench warrant issued.

15 7/23/2020

IV. RECENT DECISIONS

bail modifications People ex rel Chiszar v. Brann, --- N.Y.S.3d ----2020 WL 31636842020 N.Y. Slip Op. 20132 (NY County June 12, 2020) • 2 complaints for Burglary 2 charges and then re-arrest for another Burglary 2. felony complaint cannot satisfy 530.60 requirements. People ex rel. Woolworth v Department of Corr. Warden, Bellevue Hosp. Prison Ward , ___AD3d___, 2020 NY Slip Op 03204 (2d Dept. 2020) • Indictment for Burglary 3 and then re-arrest for another Burglary 3. felony complaint cannot satisfy 530.60 requirements. People ex rel. Batmanghelidj v Brann, ___AD3D___, 2020 NY Slip OP 04132 (2d Dept. 2020) • Multiple indictments for Burglary 2 and then re-arrest for multiple Burglary 3. remanded for hearing under 530.60(2)(c)

16 7/23/2020

People v. Knight, 67 Misc.3d 247 (Kings Cty 2020) – copy of indictment for Burglary 2 satisfied 530.60 when defendant had open indictment for 3 different Burglary 2 offenses.

Q: why do we move to inspect and dismiss/reduce?

After a reasonable cause hearing:

People ex rel. Cooke v. Dept. of Corrections Warden,184 A.D.3d 849 (2nd Dept. 2020). manslaughter. June 24, 2020

People ex rel. Christy v. Dzurenda, 184 A.D.3d 703 (2nd Dept. 2020)(We find that the writ should be sustained as the People failed to establish that there is reasonable cause to believe that Antonio Bac Choc committed a felony (see CPL 180.70). Burglary (entry with intent to endanger welfare of a child). June 12, 2020

17 7/23/2020

YUNG-MI LEE BROOKLYN DEFENDER SERVICES [email protected] 646-787-3317

18 7/23/2020

1 2020 BAIL AMENDMENTS Effective July 2, 2020 NYSDA, July 27, 2020

2 SUMMARY I. BAIL ELIGIBLE CHARGES EXPANDED MORE VIOLENT FELONIES MORE NON-VIOLENT FELONIES MORE CLASS A MISDEMEANORS NEW CATEGORY: FOR REPEAT OFFENSES II. TWEAKS EXPANSION OF NON-MONETARY CONDITIONS ELECTRONIC MONITORING DATA COLLECTION RETURN DATE FOR APPEARANCE TICKETS II. CLARIFICATIONS guilty pleas/verdicts contact information III. SOME RECENT DECISIONS

3 I. Bail eligible charges expanded

4 VIOLENT FELONIES:

• BURGLARY 2ND (140.25(2)) “only where the defendant is charged with entering the living area of the dwelling” • • STRANGULATION 2ND (121.12)(note: this is a D violent so it was already a qualifying) • • SEX TRAFFICKING (230.34)(note: 230.34(5)(a) &(b) were already violent B felonies so already a qualifying) • • SEX TRAFFICKING – CHILD (230.34-a) (B violent, so already a qualifying) • • • •

5 Dwelling – but not a living area • Screened in porch. People v. Rivera, 301 A.D.2d 787 (3rd Dept. 2003) • Attached mud room and garage, People v. Carducci, 143 A.D.3d 1260 (4th Dept. 2016) • Attached garage, People v. Willis, 165 A.D.3d 984 (2nd Dept. 2018)

1 6

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7/23/2020 5

• Attached mud room and garage, People v. Carducci, 143 A.D.3d 1260 (4th Dept. 2016) • Attached garage, People v. Willis, 165 A.D.3d 984 (2nd Dept. 2018) • Basement, storage room in residential building, People v. Cohen, 204 A.D.2d 159 (1st Dept. 1994)(paint supplies) •

6 Not a Dwelling: • Mixed use: Museum within a hotel, not a dwelling burglary, because sealed off from hotel. People v. McCray, 23 N.Y.3d 621 (2014) • • Mixed use: deli in basement of residential. People v. Joseph, 28 N.Y.3d 1003 (2016) • • If not sealed off or locked off – then still not bail eligible even though it may still be a burglary 2. •

7 A vestibule is not a part of the “dwelling” Is it locked or unlocked? • People v. Sanchez, 209 A.D.2d 265 (1st Dept. 1994) - unlocked • People v. Taufiq, 115 A.D.3d 887 (2nd Dept. 2014)(CW testified vestibule was locked, but landlord had key and no signs of forced entry).

8 NON-VIOLENT FELONIES • CLASS A-I DRUG FELONIES • ALL HOMICIDES (manslaughters, negligent homicides) • And, because language is “ANY CRIME THAT THAT IS ALLEGED TO HAVE CAUSED THE DEATH OF ANOTHER PERSON” it could include VTL 511 (if accidentally causes death), VTL 600 (leaving the scene of an accident, if the driver causes death). • FAILURE TO REGISTER UNDER SORA WHERE DEFENDANT IS CLASSIFIED LEVEL 3, Corr. L. 168 et al. (1st offense, E felony) • ENDANGERING THE WELFARE OF A CHILD WHERE DEFENDANT IS CLASSIFIED LEVEL 3, Corr. L. 168 et al. • SEX TRAFFICKING, 230.34(1)-(4) and (5)(c – h) (B felony) • MONEY LAUNDERING IN SUPPORT OF TERRORISM 3RD AND 4TH, 470.22 (D felony) & 470.21(E felony) • PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD, 263.15 (D felony) • AGGRAVATED VEHICULAR ASSAULT, 120.04-a (C felony), VEHICULAR ASSAULT 1ST, 120.04 (D felony)

9 Continued… • ASSAULT IN THE 3RD AS HATE CRIME (E FELONY) • ARSON 3RD AS HATE CRIME (B FELONY) • AGGRAVATED ASSAULT UPON A PERSON LESS THAN 11 YEARS OLD, 120.12 (E FELONY) • CRIMINAL POSSESSION OF A WEAPON ON SCHOOL GROUNDS, 265.01-a (E felony)

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9 7/23/2020

FELONY) • CRIMINAL POSSESSION OF A WEAPON ON SCHOOL GROUNDS, 265.01-a (E felony) (a student brings a rifle, shotgun, or firearm to school, college or university) • GRAND LARCENY 1ST , 155.42 (B felony)($1M) • ENTERPRISE CORRUPTION, 460.20 (B FELONY) • MONEY LAUNDERING 1ST, 470.20 (B FELONY) • BAIL JUMPING 1ST AND 2ND, , 215.57 & 215.56 (D AND E FELONIES) • ESCAPE 1ST AND 2ND , 205.15 & 205.10 (D AND E FELONIES) • UNLAWFUL IMPRISONMENT 1ST, 135.10 (E felony)

10 Class A Misdemeanors • DOMESTIC VIOLENCE: OBSTRUCTION OF BREATHING, 121.11 • • ENDANGERING WELFARE OF A CHILD, 260.10 – ONLY IF A LEVEL 3 (highest) SEX OFFENDER • • BAIL JUMPING 3RD , 215.55 • • ESCAPE 3RD , 205.05 • •

11 FOR REPEAT OFFENSES/ARRESTS • ANY FELONY WHILE SENTENCED TO PROBATION OR POST RELEASE SUPERVISION, 510.10(4)(r) • ANY FELONY IF QUALIFIES FOR LIFE SENTENCE AS A DISCRETIONARY PERSISTENT OFFENDER UNDER PENAL LAW 70.10, 510.10(4)(s) • FELONY or Class A Misdemeanor WHERE “HARM” OCCURRED TO AN IDENTIFIABLE PERSON OR PROPERTY WHILE OUT ON A SEPARATE FELONY OR CLASS A MISDEMEANOR WHERE HARM OCCURRED TO AN IDENTIFIABLE PERSON OR PROPERTY. PROSECUTORS MUST SHOW “REASONABLE CAUSE” THAT THE DEFENDANT COMMITTED BOTH OFFENSES, 510.10(4)(t) 12 4(r): ANY felony while serving a sentence of probation or while released on post-release supervision

excludes: interim probation, parole or conditional release from indeterminate sentence.

13 4(s): ANY felony and qualifies as a persistent felony offender “where the defendant qualifies for sentencing on such charge as a persistent felony offender pursuant to section 70.10 of the penal law.”

70.10 applies only after a person ”stands convicted” so a person merely charged with a

35 1

13 7/23/2020

70.10 applies only after a person ”stands convicted” so a person merely charged with a felony does not qualify as a persistent felony offender.

Review the rap sheet carefully: did the person have two separate PRISON terms imposed? The sequentiality rule applies.

14 Excludes mandatory persistent violent felony “offender”. See Penal Law § 70.10 (1)(a) (“A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08).

The DLRA eliminated life sentences for drug/marijuana felony offenses.

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

•

What if the person posted bail and then was rearrested?

17 Repeat offenses/arrests: Reminder: under 530.60, the prosecution can move to change the securing order for only the “underlying” crime.

NOW: under 510.10(4)(t) – the prosecution must show “reasonable cause” that the person committed the “new” crime AND the “underlying” crime.

18 ”HARM” TO AN IDENTIFIABLE PERSON OR PROPERTY • physical harm • Injury to a person or damage to property • Must be an element of the crime –

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18 7/23/2020

• Must be an element of the crime –

19 Why the word “harm”? – could it be because a person cannot cause “injury” to property? Could it be because you cannot damage a person? “HARM” in a broad sense includes injury AND damage

“material harm” in the stalking statute – specifies that the harm can be “mental or emotional” – the legislature could have done so with the amendments.

20 As a practical matter, the statute would be unworkable if “harm” was understood to refer to matters not discernable from the elements of the charged crimes. Whether a crime is a qualifying offense for bail or remand is a threshold question that must be determined at arraignment. The amendment requires the prosecutor to “show reasonable cause to believe that the defendant committed the instant crime and [the preceding] underlying crime.” This obligation simply mirrors well established constitutional and statutory requirements for judicial review of probable cause at arraignment (see Gerstein v. Pugh, 420 U.S. 103 (1975); CPL §140.45). The subsection makes no mention of any additional burden of proof concerning the “harm” element of the prior charge and the current one, an omission that clearly reflects the legislature’s understanding that the harm determination would be subsumed within the probable cause determination itself. Because the legislature included no statutory mechanism for consideration of extraneous proof, courts must review the charging documents to determine whether they establish reasonable cause to believe the defendant twice caused physical harm to an identified person (e.g., physical injury) or property (i.e., damage). In short, “harm” must be an element of the crime and not one that can be inferred by the nature of the crime. Al O’Connor (BDS)

21 Constitutional implications: The harm should be an element of the offense: assault (injury), criminal mischief (damage), robbery with injury, etc.

Otherwise, why require the prosecution to show “reasonable cause” – as to all the elements of the underlying offense and the new offense? Gerstein v. Pugh, 420 U.S. 103 (1975); CPL §140.45

22 EXPANSION OF NON-MONETARY CONDITIONS OF RELEASE “...shall be the least restrictive conditions that will reasonably assure the principal's return to court and reasonably assure the principal's compliance with court conditions.” • Conditions to assure compliance with conditions …

23 II. TWEAKS

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7/23/2020

23 II. TWEAKS

24 NON-EXCLUSIVE (JUDGE CAN ADD MORE even if NOT SPECIFIED by statute): • SURRENDER PASSPORT • MANDATORY PROGRAMS (counseling, treatment, intimate partner violence, placement in hospital under MHL 9.43) WHILE IN PRE-TRIAL SERVICES – no longer maintaining contact or just “supervision” • REFRAIN FROM “ASSOCIATING” WITH PERSON CONNECTED TO THE ALLEGED CRIME (not just victims and eyewitnesses, also co-defendants) • MAKE DILIGENT EFFORTS TO MAINTAIN EMPLOYMENT HOUSING OR ENROLLMENT IN SCHOOL/EDUCATIONAL PROGRAMMING • OBEY AN ORDER OF PROTECTION • CONDITIONS SET BY COURT ADDRESSED TO SAFETY OF VICTIM OF FAMILY OFFENSE, INCLUDING REASONABLE CONDITIONS REQUESTED BY OR BEHALF OF VICTIM •

25 ELECTRONIC MONITORING • MUNICIPALITIES CAN CONTRACT WITH PRIVATE COMPANIES BUT THE COMPANIES CANNOT INTERACT WITH DEFENDANT • DEFENDANT STILL CANNOT BE MADE TO PAY FOR ANY CONDITIONS OF RELEASE, INCLUDING ELECTRONIC MONITORING. •

26 DATA COLLECTION BY OCA AND DCJS • DISAGGREGATED TO PROTECT CONFIDENTIALITY OF DEFENDANTS. • • RACE, GENDER, ETHNIC, CHARGE TYPE, RELEASE, RELEASE WITH CONDITIONS, BAIL, DETENTION, LENGTH OF TIME IN JAIL, OUTCOMES • •

27 APPEARANCE TICKETS 20 DAY RETURN PERIOD EXTENDED IF COURT DOES NOT MEET WITHIN 20 DAYS OF THE ISSUANCE DATE •

28 III. CLARIFICATIONS

29 BAIL/REMAND AUTHORIZED FOR CONVICTION BUT PENDING SENTENCE OR APPEAL. Including B misdemeanors (violations)?

•

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29 7/23/2020

•

30 CONTACT INFORMATION, CPL 510.43 IF DEFENDANT REFUSES TO PROVIDE THEN HE OR SHE FORFEITS THE RIGHT TO GET COURT NOTIFICATION. • consequence for intentionally failing to provide contact information is NOT a willfulness or agreement to have bench warrant issued. •

31 IV. RECENT DECISIONS

32 bail modifications People ex rel Chiszar v. Brann, --- N.Y.S.3d ----2020 WL 31636842020 N.Y. Slip Op. 20132 (NY County June 12, 2020) • 2 complaints for Burglary 2 charges and then re-arrest for another Burglary 2. felony complaint cannot satisfy 530.60 requirements. People ex rel. Woolworth v Department of Corr. Warden, Bellevue Hosp. Prison Ward , ___AD3d___, 2020 NY Slip Op 03204 (2d Dept. 2020) • Indictment for Burglary 3 and then re-arrest for another Burglary 3. felony complaint cannot satisfy 530.60 requirements. People ex rel. Batmanghelidj v Brann, ___AD3D___, 2020 NY Slip OP 04132 (2d Dept. 2020) • Multiple indictments for Burglary 2 and then re-arrest for multiple Burglary 3. remanded for hearing under 530.60(2)(c)

33 People v. Knight, 67 Misc.3d 247 (Kings Cty 2020) – copy of indictment for Burglary 2 satisfied 530.60 when defendant had open indictment for 3 different Burglary 2 offenses.

Q: why do we move to inspect and dismiss/reduce?

34 After a reasonable cause hearing: People ex rel. Cooke v. Dept. of Corrections Warden,184 A.D.3d 849 (2nd Dept. 2020). manslaughter. June 24, 2020

7 7/23/2020

[email protected] 646-787-3317

8 REMAND MONEY ELECTRONIC PRE-TRIAL RELEASE WITH RELEASE BAIL MONITORING SERVICES CONDITIONS VIOLENT FELONIES YES YES YES YES YES YES EXCEPT: some Burglary 2, PL 140.25(2) (areas which are not “the living area of the dwelling” - vestibules, hallways in apt. buildings, attached garages, enclosed porches, certain commercial burglaries in larger buildings with dwelling units) & Robbery 2 (AI C) & Terroristic Threats, PL 490.20

NON-VIOLENT FELONIES: YES YES YES YES YES YES §220 A-I Drug Felonies B non-violent: • Witness Tampering, PL§215.13 • Facilitating Sexual Performance by a Child with a Controlled Substance or Alcohol, PL §263.30 • Sexually Motivated Promoting Prostitution, §130.91/230.32 • Sexually Motivated Compelling Prostitution §130.91/230.33 • Aggravated Patronizing a Minor for Prostitution 2, PL §230.13 • Sex Trafficking, PL §230.34(1)-(4) and (5)(c-h) • Conspiracy 2° (to commit homicide), PL §105.15 • Money Laundering in Support of Terrorism 1º, 470.24 • Aggravated Vehicular Homicide, PL §125.14 • Arson 3° as Hate Crime, PL §150.10/Art. 480 • Grand Larceny 1° ($1M), PL §155.42 • Enterprise Corruption, PL §460.20 • Money Laundering 1, PL §470.20 C non-violent: • Use of a Child in a Sexual Performance, PL §263.05 • Manslaughter 2°, PL §125.15 • Vehicular Manslaughter 1°, PL §125.13 • Sexually motivated Manslaughter 2°, PL §§130.91/125.15 • Sexually Motivated Robbery 3°, PL §§130.91/160.09 • Sexually Motivated Promoting Prostitution 2°, §130.91/230.31. • Sexually Motivated Use of a Child in a Sexual Performance, PL §§130.91/263.05 • Money Laundering in Support of Terrorism 2º, §470.23 • Aggravated Vehicular Assault, PL §120.04-a D non-violent: • Witness Tampering, PL§215.12 • Patronizing a person for prostitution 1°, PL §230.06 • Incest 2°, PL §255.26 • Aggravated Criminal Contempt, PL §215.51 (only if case is DV) • Luring a Child, PL §120.70(1) • Sexually Motivated Stalking 1°, PL §§130.91/120.60 (except subdiv.1 which is violent) • Sexually Motivated Burglary 3°, PL §§130.9/140.20 • Sexually Motivated Robbery 3°, PL §§130.91/160.10 • Sexually Motivated Disseminating Indecent Material to Minors 1°, PL §§130.91/235.22 • Sexually Motivated Promoting an Obscene Sexual Performance by a Child, PL §§130.91/263.15 • Sexually Motivated Promoting a Sexual Performance by a Child, PL §§130.91/263.15 • Vehicular Manslaughter 2°, PL 125.12

nd • Failure to Register under SORA where Defendant is Classified Level 3, 2 Offense, Corr. Law §168 • Money Laundering in Support of Terrorism 3°, PL §470.22 • Promoting an Obscene Sexual Performance by a Child, PL §263.15 • Vehicular Assault 1°, PL §120.04 • Bail Jumping 1°, PL §215.57 • Escape 1°, PL §205.15 E non-violent: • Witness intimidation, PL §215.15 (E felony) • Criminal Contempt 1°, PL §215.51 (b)(c) or (d) (only if case is DV) • Rape 3°, PL§130.25 • Patronizing a Person for Prostitution 2°, PL §230.05 • Aggravated Patronizing a Minor for Prostitution 3°, PL §230.11 • Incest 3°, PL §255.25 • Criminally Negligent Homicide, PL §125.10 st • Failure to Register under SORA where Defendant is Classified Level 3, 1 Offense, Corr. Law §168 • Money Laundering in Support of Terrorism 4°, PL §470.21 • Assault in the 3° as Hate Crime, PL §120.00/Art. 480 • Aggravated Assault Upon a Person Less than 11 Years Old, PL §120.12 • Criminal Possession of a Weapon on School Grounds, PL §165.01-a • Bail Jumping 2°, PL §215.56 • Escape 2°, PL §205.10 • Unlawful Imprisonment 1° (Same family or household), PL §135.10 Repeat Offenses/Arrests • Any felony while on probation or post release supervision • Any felony if qualifies for life sentence as a discretionary persistent offender under PL §70.10 • Felony where “harm” occurred to an identifiable person or property while out on a separate felony or class A misdemeanor where harm occurred to an identifiable person or property. Prosecutors must show “reasonable cause” that the defendant committed both offenses.

REMAND MONEY BAIL ELECTRONIC MONITORING PRE-TRIAL RELEASE RELEASE SERVICES WITH CONDITIONS ALL OTHER NON-VIOLENT FELONIES NO NO, UNLESS WHILE OUT the defendant: YES YES YES YES • Includes A-I and A-II controlled substanceoffenses, otherthanmajor • Commits a Class A or violent felony or trafficking. witness intimidation (reasonable • And, although violent felonies in PL 70.02: Burglary 2 (areas which are cause), OR not “the living area of the dwelling” - vestibules, hallways in apt. By clear & convincing evidence, defendant buildings, attached garages, enclosed porches, certain commercial • persistently and willfully fails to appear burglaries in larger buildings with dwelling units), PL • violates an order of protection §140.25(2), and Robbery 2 (aided by another), PL§160.10(1) • tampers or intimidates a witness

MI SDEMEANOR SEX OFFENSES: NO YES YES YES YES YES • Sexual Misconduct, PL §130.20 (A misdemeanor) • Forcible Touching, PL §130.52 • Sexual Abuse 3, PL §130.55(B misdemeanor) • Sexual Abuse 2, PL §130.60 (A misdemeanor) OTHER MISDEMEANOR OFFENSES: • Criminal Contempt 2°, PL §215.50(3) – only if DV • Criminal Obstruction of Breathing (same family or household), PL §121.11 • Endangering Welfare of a Child (only if Level 3 Sex Offender), PL §260.10 • Bail Jumping 3°, PL §215.55 • Escape 3°, PL §205.05 REPEAT ARRESTS • Any Class A misdemeanor while on probation or post-release supervision (but not parole or conditional release) • Any Class A misdemeanor where harm occurs to an identifiable person or property (assault 3, criminal mischief) while out on a separate felony or Class A misdemeanor where harm occurred to an identifiable person or property MI SDEMEANOR CRIME OF DOMESTI C VI OLENCE, no NO, UNLESS WHILE OUT, defendant by C &C yes YES YES YES as defined in CPL 530.11(1) (other than contempt, see above) evid.: • persistently and willfully fails to appear • violates an order of protection, tampers or intimidates a witness

ALL OTHER MISDEMEANORS NO, UNLESS WHILE OUT, defendant by C & C POSSIBLY, YES YES YES evid.: • if defendant has a VIOLENT • persistently and willfully fails to appear felony conviction within past • violates an order of protection, tampers 5 years (tolled by or intimidates a witness incarceration), OR WHILE OUT, def. by C & C evid.: • persistently and willfully fails to appear • violates an order of protection intimidates or tampers with a witness