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New York's Bail Legislation Explained

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QueensBAR BULLETIN Queens County Bar Association | qcba.org | 90-35 148th Street, Jamaica, NY 11435 | 718-291-4500 March 2020 | Volume 87, No. 6 New York’s Bail Legislation Explained HON. DAVID J. KIRSCHNER As part of the State’s 2020 Budget, the New York Leg- restrictions. And, bail could nevertheless be imposed if jurisdictions classify crimes based on the sentencing ex- islature enacted sweeping changes to the criminal justice a person “persistently and willfully” fails to appear in posure commensurate with the severity of the prohibited system. While a sizeable portion focuses on overhauling court as directed, commits another felony after being conduct. New York has three classes of misdemeanors; the current discovery and speedy trial laws, public atten- released on a felony, intimidates or tampers with a wit- six for felonies. Misdemeanors, however, are not statu- tion has gravitated toward the dramatically transformed ness, or violates domestic, family and certain other types torily designated as violent regardless of whether the bail structure. Specifically, monetary release conditions of protective orders. But when a person fails to appear, prohibited conduct appears to be. Examples include as- or “cash bail” (e.g., cash, credit card, bonds) have been a court must wait 48 hours before ordering a bench war- sault in the third degree, which is intentionally inflict- eliminated for virtually all misdemeanors and non-vi- rant to provide the opportunity for a voluntary return. ing physical injury, obstruction of breathing or blood olent felonies—meaning that persons charged with The legislation purportedly seeks to eliminate pre-tri- circulation, menacing in the second and third degrees, “non-qualifying” offenses must be released from cus- al detention of persons unable to afford modest bail for arson in the fifth degree, sexual abuse in the second and tody. Additionally, law enforcement officers must issue offenses that will eventually be resolved in non-incarcer- third degrees, sexual misconduct and forcible touching. desk appearance tickets (a formal arrest without being atory (e.g., probation, community service, rehabilitation Felonies designated as non-violent include reckless held until arraignment) to individuals charged with programs or fines) or negligible jail sentences because and vehicular manslaughter, robbery in the third de- misdemeanors and Class E felonies (the lowest class level extended incarceration jeopardizes employment, hous- gree, which is using physical force to steal property of felony offenses) in lieu of effecting a custodial arrest ing, and other life circumstances. Agree or disagree, it from another person (without using/threatening use of unless they have an outstanding warrant, a temporary distinguishes between crimes unlikely to result in sub- a weapon or causing physical injury), burglary in the order of protection is being sought, or a driver’s license stantial prison sentences (non-qualifying offenses) and third degree, which is entering a building while intend- suspension is mandated. those that are (qualifying offenses ). This distinction is ing to commit a crime inside (also without using/threat- That said, mandatory release from custody without largely, though not exclusively, based on the categoriza- ening use of a weapon or causing physical injury), rape bail for non-qualifying offenses does not necessarily tion of offenses as either misdemeanors or felonies and in the third degree, which is a lack of actual or legal con- mean release without any conditions. If a judicial deter- designation as either non-violent or violent. Regardless sent, arson in the fourth degree and, of course, larceny mination is made that certain measures are necessary to of whether a charged offense qualifies for bail, however, and drug sale and/or possession. But the test of whether reasonably assure a person will return to court, several judges are required to select the least restrictive alter- felonies are designated as non-violent or violent has little non-monetary conditions may be imposed. Non-mon- native conditions that will reasonably assure a person’s to do with whether the prohibited conduct appears vio- etary conditions include pre-trial supervision (e.g., a return to court. lent or the title of the offense. Rather, it is based on the probation-type monitoring and reporting program), Generally, misdemeanors subject a person to less than legal gravity of the conduct. electronic monitoring, passport surrender and travel one year in jail; felonies to one year or more. And, all CONTINUED ON PAGE 6 Table of Contents New Bail Legislation 1, 6 President’s Message 3 Editor’s Note 4 Immigration Questions 5 The Practice Page 14 Immigration Updates.................... ............................15 2 | Queens Bar Bulletin | March 2020 The Docket Being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th Street, New Members Jamaica, NY. Due to unforeseen events, please note that dates listed in this schedule are subject to change. More information and changes will be made available to members via written notice and brochures. Questions? Please call 718-291-4500. David A. Bowen Daniel Cerritos David P. Horowitz Lloyd Katz Andrew Rozo Emili Kilom CLE Seminar & Event listings Neyci V. Lopez MARCH 2020 Basics of Business Dissolution Tuesday, March 10 Wednesday CLE: Discovery & Speedy Trial CLE: CPLR & Evidence Update Wednesday, March 11 Necrology CLE: Ethics Update 2020 MAY 2020 Wednesday, March 18 Thursday, May 7 CLE: Meet the New Supervising Annual Dinner & Judge of the Civil Court, Installation of Officers Queens County – 1:00 pm Monday, May 25 Tuesday, March 31 Memorial Day - Office Closed Judiciary, Past President’s & Golden Jubilarian Night JULY 2020 Friday, July 3 APRIL 2020 Observation of Independence Day Thursday, April 2 – Office Closed CLE: LGBTQ+ & Immigration/ Naturalization Committees SEPTEMBER 2020 Friday, April 10 Monday, September 7 Good Friday - Office Closed Labor Day – Office Closed Wednesday, April 22 Monday, September 14 CLE: Equitable Distribution Update Golf & Tennis Outing at Thursday, April 23 the Garden City Country Club CLE: Breakin’ Up is Hard to Do: 2019-2020 Officers and Board of Managers of the Queens County Bar Association Lawyers President – Marie-Eleana First President-Elect - Clifford M. Welden Vice President - Frank Bruno, Jr. Assistance Secretary – Adam Moses Orlow Treasurer – Michael D. Abneri Class of 2020 Class of 2021 Class of 2022 Committee Alla Allison Ageyeva Gregory J. Newman Kristen J. Dubowski Barba Gregory J. Brown Deborah M. Garibaldi Charles A. Giudice The Queens County Bar Association (QCBA) provides free Joshua R. Katz Jeffrey D. Lebowitz Richard Michael Gutierrez Michael Kohan Michael Serres Janet Keller confidential assistance to attorneys, judges, law students and Zenith T. Taylor Elizabeth Yablon Andrea S. Ogle their families struggling with alcohol and substance abuse, de- pression, stress, burnout, career concerns and other issues that Queens Bar Bulletin affect quality of life, personally and/or professionally. Executive Director Queens Bar Bulletin Editor Arthur N. Terranova Paul E. Kerson QCBA Lawyers Assistance Committee (LAC) offers consul- tation, assessment, counseling, intervention, education, referral and peer support. Associate Editors: Stephen D. Fink and Richard N. Golden All communication with QCBA LAC staff and volunteers Send letters and editorial copy to: Publisher: Queens Bar Bulletin 90-35 148th Street, Jamaica, NY 11435 are completely confidential. Confidentiality is privileged and Queens Public Media, LLC, under Editor's Note: Articles appearing in the Queens Bar Bulletin assured under Section 499 of the Judiciary law as amended by the auspices of Queens County represent the views of the respective authors and do not Bar Association. The Queens Bar necessarily carry the endorsement of the Association, the the Chapter 327 of the laws of 1993. Bulletin is published monthly from Board of Managers, or the Editorial Board of the Queens October to May. All rights reserved. Bar Bulletin. Material in this publication may not If you or someone you know is having a problem, we can help. be stored or reproduced in any form To learn more, contact QCBA LAC for a confidential conversation. without permission. "Queens Bar Bulletin" (USPS Number: 452-520) is published monthly except June, ©2019 July, August, and September by Queens Public Media, LLC, The Queens County Bar Association 8900 Sutphin Boulevard, LL11, Jamaica, NY 11435, under LAWYERS ASSISTANCE COMMITTEE Advertising Office: the auspices of the Queens County Bar Association. Entered CONFIDENTIAL HELPLINE Queens Daily Eagle as periodical postage paid at the Post Office at Flushing, 8900 Sutphin Boulevard, LL11, New York and additional mailing offices under the Act of 718-307-7828 Jamaica, Queens, NY 11435 Congress. Postmaster send address changes to the Queens (718) 422-7412 County Bar Association, 90-35 148th Street, Jamaica, NY 11435. March 2020 | Queens Bar Bulletin | 3 President's Message “Every great dream begins with a dreamer. Always remember, you have within you the strength, the patience, and the passion to reach for the stars to change the world.” ~ Harriet Tubman Greetings Dear Members, Park’s speech are poignant and still relevant today. Be- March 10, 1990 be designated as Harriet Tubman Day, Happy Springtime to all of you! As the world awak- low is a portion of the excerpt
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