N.Y. CPL Law § 530.40 — New York Code / Act CPL / Part 3 / Title P / Article 530 / Section 530.40
Order of recognizance, release under non-monetary conditions or bail; by superior court when action is pending therein
Status: in_force

§ 530.40 Order of recognizance, release under non-monetary conditions or\n           bail; by superior court when action is pending therein.\n  When a criminal action is pending in a superior court, such court,\nupon application of a defendant, must or may order recognizance or bail\nas follows:\n  1. When the defendant is charged with an offense or offenses of less\nthan felony grade only, the court must, unless otherwise provided by\nlaw, order recognizance or release under non-monetary conditions in\naccordance with this section.\n  2. When the defendant is charged with a felony, the court may, unless\notherwise provided by law in its discretion, order recognizance, release\nunder non-monetary conditions or, where authorized, bail. In any such\ncase in which an indictment (a) has resulted from an order of a local\ncriminal court holding the defendant for the action of the grand jury,\nor (b) was filed at a time when a felony complaint charging the same\nconduct was pending in a local criminal court, and in which such local\ncriminal court or a superior court judge has issued an order of\nrecognizance, release under non-monetary conditions or, where\nauthorized, bail which is still effective, the superior court's order\nmay be in the form of a direction continuing the effectiveness of the\nprevious order.\n  3. In cases other than as described in subdivision four of this\nsection the court shall release the principal pending trial on the\nprincipal's own recognizance or release the principal pending trial\nunder non-monetary conditions, the determination for which shall be made\nin accordance with section 510.10 of this title. The court shall explain\nthe basis for its determination and choice of securing order on the\nrecord or in writing.\n  4. Where the principal stands charged with a qualifying offense, the\ncourt, unless otherwise prohibited by law, may in its discretion, and in\naccordance with section 510.10 of this title, release the principal\npending trial on the principal's own recognizance or under non-monetary\nconditions, fix bail, or order non-monetary conditions in conjunction\nwith fixing bail, or, where the defendant is charged with a qualifying\noffense which is a felony, the court may commit the principal to the\ncustody of the sheriff. The court shall explain the basis for its\ndetermination and its choice of securing order on the record or in\nwriting. A principal stands charged with a qualifying offense for the\npurposes of this subdivision when he or she stands charged with:\n  (a) a felony enumerated in section 70.02 of the penal law, other than\nrobbery in the second degree as defined in subdivision one of section\n160.10 of the penal law, provided, however, that burglary in the second\ndegree as defined in subdivision two of section 140.25 of the penal law\nshall be a qualifying offense only where the defendant is charged with\nentering the living area of the dwelling;\n  (b) a crime involving witness intimidation under section 215.15 of the\npenal law;\n  (c) a crime involving witness tampering under section 215.11, 215.12\nor 215.13 of the penal law;\n  (d) a class A felony defined in the penal law, provided that for class\nA felonies under article two hundred twenty of such law, only class A-I\nfelonies shall be a qualifying offense;\n  (e) a sex trafficking offense defined in section 230.34 or 230.34-a of\nthe penal law, or a felony sex offense defined in section 70.80 of the\npenal law or a crime involving incest as defined in section 255.25,\n255.26 or 255.27 of such law, or a misdemeanor defined in article one\nhundred thirty of such law;\n  (f) conspiracy in the second degree as defined in section 105.15 of\nthe penal law, where the underlying allegation of such charge is that\nthe defendant conspired to commit a class A felony defined in article\none hundred twenty-five of the penal law;\n  (g) money laundering in support of terrorism in the first degree as\ndefined in section 470.24 of the penal law; money laundering in support\nof terrorism in the second degree as defined in section 470.23 of the\npenal law; money laundering in support of terrorism in the third degree\nas defined in section 470.22 of the penal law; money laundering in\nsupport of terrorism in the fourth degree as defined in section 470.21\nof the penal law; or a felony crime of terrorism as defined in article\nfour hundred ninety of the penal law, other than the crime defined in\nsection 490.20 of such law;\n  (h) criminal contempt in the second degree as defined in subdivision\nthree of section 215.50 of the penal law, criminal contempt in the first\ndegree as defined in subdivision (b), (c) or (d) of section 215.51 of\nthe penal law or aggravated criminal contempt as defined in section\n215.52 of the penal law, and the underlying allegation of such charge of\ncriminal contempt in the second degree, criminal contempt in the first\ndegree or aggravated criminal contempt is that the defendant violated a\nduly served order of protection where the protected party is a member of\nthe defendant's same family or household as defined in subdivision one\nof section 530.11 of this article;\n  (i) facilitating a sexual performance by a child with a controlled\nsubstance or alcohol as defined in section 263.30 of the penal law, use\nof a child in a sexual performance as defined in section 263.05 of the\npenal law or luring a child as defined in subdivision one of section\n120.70 of the penal law, promoting an obscene sexual performance by a\nchild as defined in section 263.10 of the penal law or promoting a\nsexual performance by a child as defined in section 263.15 of the penal\nlaw;\n  (j) any crime that is alleged to have caused the death of another\nperson;\n  (k) criminal obstruction of breathing or blood circulation as defined\nin section 121.11 of the penal law, strangulation in the second degree\nas defined in section 121.12 of the penal law or unlawful imprisonment\nin the first degree as defined in section 135.10 of the penal law, and\nis alleged to have committed the offense against a member of the\ndefendant's same family or household as defined in subdivision one of\nsection 530.11 of this article;\n  (l) aggravated vehicular assault as defined in section 120.04-a of the\npenal law or vehicular assault in the first degree as defined in section\n120.04 of the penal law;\n  (m) assault in the third degree as defined in section 120.00 of the\npenal law or arson in the third degree as defined in section 150.10 of\nthe penal law, when such crime is charged as a hate crime as defined in\nsection 485.05 of the penal law;\n  (n) aggravated assault upon a person less than eleven years old as\ndefined in section 120.12 of the penal law or criminal possession of a\nweapon on school grounds as defined in section 265.01-a of the penal\nlaw;\n  (o) grand larceny in the first degree as defined in section 155.42 of\nthe penal law, enterprise corruption as defined in section 460.20 of the\npenal law, or money laundering in the first degree as defined in section\n470.20 of the penal law;\n  (p) failure to register as a sex offender pursuant to section one\nhundred sixty-eight-t of the correction law or endangering the welfare\nof a child as defined in subdivision one of section 260.10 of the penal\nlaw, where the defendant is required to maintain registration under\narticle six-C of the correction law and designated a level three\noffender pursuant to subdivision six of section one hundred\nsixty-eight-l of the correction law;\n  (q) a crime involving bail jumping under section 215.55, 215.56 or\n215.57 of the penal law, or a crime involving escaping from custody\nunder section 205.05, 205.10 or 205.15 of the penal law;\n  (r) any felony offense committed by the principal while serving a\nsentence of probation or while released to post release supervision;\n  (s) a felony, where the defendant qualifies for sentencing on such\ncharge as a persistent felony offender pursuant to section 70.10 of the\npenal law;\n  (t) any felony or class A misdemeanor involving harm to an\nidentifiable person or property, or any charge of criminal possession of\na firearm as defined in section 265.01-b of the penal law, where such\ncharge arose from conduct occurring while the defendant was released on\nhis or her own recognizance, released under conditions, or had yet to be\narraigned after the issuance of a desk appearance ticket for a separate\nfelony or class A misdemeanor involving harm to an identifiable person\nor property, or any charge of criminal possession of a firearm as\ndefined in section 265.01-b of the penal law, provided, however, that\nthe prosecutor must show reasonable cause to believe that the defendant\ncommitted the instant crime and any underlying crime. For the purposes\nof this subparagraph, any of the underlying crimes need not be a\nqualifying offense as defined in this subdivision. For the purposes of\nthis paragraph, "harm to an identifiable person or property" shall\ninclude but not be limited to theft of or damage to property. However,\nbased upon a review of the facts alleged in the accusatory instrument,\nif the court determines that such theft is negligible and does not\nappear to be in furtherance of other criminal activity, the principal\nshall be released on his or her own recognizance or under appropriate\nnon-monetary conditions; or\n  (u) criminal possession of a weapon in the third degree as defined in\nsubdivision three of section 265.02 of the penal law or criminal sale of\na firearm to a minor as defined in section 265.16 of the penal law.\n  5. Notwithstanding the provisions of subdivisions three and four of\nthis section, with respect to any charge for which bail or remand is not\nordered, and for which the court would not or could not otherwise\nrequire bail or remand, a defendant may, at any time, request that the\ncourt set bail in a nominal amount requested by the defendant in the\nform specified in paragraph (a) of subdivision one of section 520.10 of\nthis title; if the court is satisfied that the request is voluntary, the\ncourt shall set such bail in such amount.\n  6. Notwithstanding the provisions of subdivisions two, three and four\nof this section, a superior court may not order recognizance, release\nunder non-monetary conditions or, where authorized, bail, or permit a\ndefendant to remain at liberty pursuant to an existing order, after the\ndefendant has been convicted of either: (a) a class A felony or (b) any\nclass B or class C felony as defined in article one hundred thirty of\nthe penal law committed or attempted to be committed by a person\neighteen years of age or older against a person less than eighteen years\nof age. In either case the court must commit or remand the defendant to\nthe custody of the sheriff.\n  7. Notwithstanding the provisions of subdivisions two, three and four\nof this section, a superior court may not order recognizance, release\nunder non-monetary conditions or, where authorized, bail when the\ndefendant is charged with a felony unless and until the district\nattorney has had an opportunity to be heard in the matter and such court\nand counsel for the defendant have been furnished with a report as\ndescribed in subparagraph (ii) of paragraph (b) of subdivision two of\nsection 530.20 of this article.\n