NY Crim Pro L § 530.40 (2021)
2021 New York Laws CPL - Criminal Procedure Part 3 - Special Proceedings and Miscellaneous Procedures Title P - Procedures for Securing Attendance at Criminal Actions and Proceedings of Defendants and Witnesses Under Control of Court--Recognizance, Bail Article 530 - Orders of Recognizance or Bail With Respect to Defendants in Criminal Actions and Proceedings--When and by What Courts Authorized 530.40 - Order of Recognizance, Release Under Non-Monetary Conditions or Bail; by Superior Court When Action Is Pending Therein.

§ 530.40 Order of recognizance, release under non-monetary conditions or            bail; by superior court when action is pending therein.   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, the court must,  unless  otherwise  provided  by law,  order  recognizance  or  release  under non-monetary conditions in accordance with this section.   2. When the defendant is charged with a felony, the court may,  unless otherwise provided by law in its discretion, order recognizance, release under  non-monetary  conditions  or, where authorized, bail. In any such case in which an indictment (a) has resulted from an order  of  a  local criminal  court  holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony  complaint  charging  the  same conduct  was  pending in a local criminal court, and in which such local criminal court or  a  superior  court  judge  has  issued  an  order  of recognizance,   release   under   non-monetary   conditions   or,  where authorized, bail which is still effective, the  superior  court's  order may  be  in  the form of a direction continuing the effectiveness of the previous order.   3. In cases other than  as  described  in  subdivision  four  of  this section  the  court  shall  release  the  principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release  on  the  principal's  own  recognizance  will  not reasonably  assure  the  principal's return to court. In such instances, the court shall release the  principal  under  non-monetary  conditions, selecting  the  least  restrictive  alternative and conditions that will reasonably assure the principal's  return  to  court.  The  court  shall explain  its  choice  of  alternative and conditions on the record or in writing.   4. Where the principal stands charged with a qualifying  offense,  the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary  conditions,  fix  bail, or, where the defendant is charged with a qualifying offense which is a felony, the court  may  commit  the principal  to  the  custody  of the sheriff. The court shall explain its choice of release, release with conditions, bail or remand on the record or in writing. A principal stands charged with a qualifying offense  for the purposes of this subdivision when he or she stands charged with:  (a)  a felony enumerated in section 70.02 of the penal law, other than robbery in the second degree as defined in subdivision  one  of  section 160.10  of the penal law, provided, however, that burglary in the second degree as defined in subdivision two of section 140.25 of the penal  law shall  be  a qualifying offense only where the defendant is charged with entering the living area of the dwelling;  (b) a crime involving witness intimidation under section 215.15 of the penal law;  (c) a crime involving witness tampering under section  215.11,  215.12 or 215.13 of the penal law;  (d) a class A felony defined in the penal law, provided that for class A  felonies under article two hundred twenty of such law, only class A-I felonies shall be a qualifying offense;  (e) a sex trafficking offense defined in section 230.34 or 230.34-a of the penal law, or a felony sex offense defined in section 70.80  of  the penal  law  or  a  crime  involving incest as defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined  in  article  one hundred thirty of such law;  (f)  conspiracy  in  the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such  charge  is  that the  defendant  conspired  to commit a class A felony defined in article one hundred twenty-five of the penal law;  (g)  money  laundering  in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in  support of  terrorism  in  the second degree as defined in section 470.23 of the penal law; money laundering in support of terrorism in the third  degree as  defined  in  section  470.22  of  the penal law; money laundering in support of terrorism in the fourth degree as defined in  section  470.21 of  the  penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the  crime  defined  in section 490.20 of such law;  (h)  criminal  contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of  section  215.51  of the  penal  law  or  aggravated  criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in  the  first degree  or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of the defendant's same family or household as defined in  subdivision  one of section 530.11 of this article;  (i)  facilitating  a  sexual  performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law,  use of  a  child in a sexual performance as defined in section 263.05 of the penal law or luring a child as defined in  subdivision  one  of  section 120.70  of  the  penal law, promoting an obscene sexual performance by a child as defined in section 263.10 of  the  penal  law  or  promoting  a sexual  performance by a child as defined in section 263.15 of the penal law;  (j) any crime that is alleged to have  caused  the  death  of  another person;  (k)  criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, strangulation in the  second  degree as  defined  in section 121.12 of the penal law or unlawful imprisonment in the first degree as defined in section 135.10 of the penal  law,  and is  alleged  to  have  committed  the  offense  against  a member of the defendant's same family or household as defined in  subdivision  one  of section 530.11 of this article;  (l) aggravated vehicular assault as defined in section 120.04-a of the penal law or vehicular assault in the first degree as defined in section 120.04 of the penal law;  (m)  assault  in  the third degree as defined in section 120.00 of the penal law or arson in the third degree as defined in section  150.10  of the  penal law, when such crime is charged as a hate crime as defined in section 485.05 of the penal law;  (n) aggravated assault upon a person less than  eleven  years  old  as defined  in  section 120.12 of the penal law or criminal possession of a weapon on school grounds as defined in section  265.01-a  of  the  penal law;  (o)  grand larceny in the first degree as defined in section 155.42 of the penal law, enterprise corruption as defined in section 460.20 of the penal law, or money laundering in the first degree as defined in section 470.20 of the penal law;  (p) failure to register as a sex  offender  pursuant  to  section  one hundred  sixty-eight-t  of the correction law or endangering the welfare of a child as defined in subdivision one of section 260.10 of the  penal  law,  where  the  defendant  is  required to maintain registration under article six-C of  the  correction  law  and  designated  a  level  three offender   pursuant   to   subdivision   six   of  section  one  hundred sixty-eight-l of the correction law;  (q)  a  crime  involving  bail jumping under section 215.55, 215.56 or 215.57 of the penal law, or a  crime  involving  escaping  from  custody under section 205.05, 205.10 or 205.15 of the penal law;  (r)  any  felony  offense  committed  by the principal while serving a sentence of probation or while released to post release supervision;  (s) a felony, where the defendant qualifies  for  sentencing  on  such charge  as a persistent felony offender pursuant to section 70.10 of the penal law; or  (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.   5. Notwithstanding the provisions of subdivisions three  and  four  of this section, with respect to any charge for which bail or remand is not ordered,  and  for  which  the  court  would  not or could not otherwise require bail or remand, a defendant may, at any time, request  that  the court  set  bail  in  a nominal amount requested by the defendant in the form specified in paragraph (a) of subdivision one of section 520.10  of this title; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount.   6.  Notwithstanding the provisions of subdivisions two, three and four of this section, a superior court may not  order  recognizance,  release under  non-monetary  conditions  or, where authorized, bail, or permit a defendant to remain at liberty pursuant to an existing order, after  the defendant  has been convicted of either: (a) a class A felony or (b) any class B or class C felony as defined in article one  hundred  thirty  of the  penal  law  committed  or  attempted  to  be  committed by a person eighteen years of age or older against a person less than eighteen years of age. In either case the court must commit or remand the defendant  to the custody of the sheriff.   7.  Notwithstanding the provisions of subdivisions two, three and four of this section, a superior court may not  order  recognizance,  release under  non-monetary  conditions  or,  where  authorized,  bail  when the defendant is charged  with  a  felony  unless  and  until  the  district attorney has had an opportunity to be heard in the matter and such court and  counsel  for  the  defendant  have  been furnished with a report as described in subparagraph (ii) of paragraph (b) of  subdivision  two  of section 530.20 of this article.