2023 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 510 - Recognizance, Bail and Commitment-Determination of Application for Recognizance or Bail, Issuance of Securing Orders, and Related Matters › 510.10 - Securing Order; When Required; Alternatives Available; Standard to Be Applied.

§ 510.10 Securing order; when required; alternatives available; standard
to be applied.
The  imposition  of a specific type of securing order is in some cases
required by law and in other cases within the discretion of the court in
accordance with the principles of, and pursuant to its authority granted
under, this title.
1. When a principal, whose  future  court  attendance  at  a  criminal
action or proceeding is or may be required, comes under the control of a
court,  such court shall impose a securing order in accordance with this
title.  Except as otherwise required by law, the  court  shall  make  an
individualized determination as to whether the principal poses a risk of
flight  to avoid prosecution, consider the kind and degree of control or
restriction necessary to reasonably assure  the  principal's  return  to
court,  and  select  a  securing order consistent with its determination
under this subdivision. The  court  shall  explain  the  basis  for  its
determination  and  its  choice  of  securing  order on the record or in
writing. In making a determination under  this  subdivision,  the  court
must  consider  and  take  into  account available information about the
principal, including:
(a) The principal's activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal's criminal conviction record if any;
(d) The principal's record of  previous  adjudication  as  a  juvenile
delinquent,  as  retained  pursuant to section 354.1 of the family court
act, or, of pending cases where fingerprints are  retained  pursuant  to
section 306.1 of such act, or a youthful offender, if any;
(e)  The  principal's  previous record with respect to flight to avoid
criminal prosecution;
(f) If monetary bail is authorized, according to the restrictions  set
forth in this title, the principal's individual financial circumstances,
and,  in cases where bail is authorized, the principal's ability to post
bail without posing undue hardship, as well as his  or  her  ability  to
obtain a secured, unsecured, or partially secured bond;
(g) Any violation by the principal of an order of protection issued by
any court;
(h) The principal's history of use or possession of a firearm;
(i)  Whether  the  charge is alleged to have caused serious harm to an
individual or group of individuals; and
(j) If the principal is a defendant, in the case of an application for
a securing order pending appeal, the merit  or  lack  of  merit  of  the
appeal.
2.  A  principal  is  entitled to representation by counsel under this
chapter in preparing an application for release, when a  securing  order
is  being  considered  and  when  a securing order is being reviewed for
modification, revocation or termination. If the principal is financially
unable to obtain counsel, counsel shall be assigned to the principal.
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  as
provided for in subdivision three-a of section 500.10 of this title that
will  reasonably assure the principal's return to court. The court shall
explain its choice of securing order 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 order non-monetary conditions in
conjunction with fixing 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.  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 the penal 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 title;
(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 title;
(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;
(t)   any   felony  or  class  A  misdemeanor  involving  harm  to  an
identifiable person or property, or any charge of criminal possession of
a firearm as defined in section 265.01-b of the penal  law,  where  such
charge  arose from conduct occurring while the defendant was released on
his or her own recognizance, released under conditions, or had yet to be
arraigned after the issuance of a desk appearance ticket for a  separate
felony  or  class A misdemeanor involving harm to an identifiable person
or property, or any charge  of  criminal  possession  of  a  firearm  as
defined  in  section  265.01-b of the penal law, 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. For the purposes of
this paragraph, "harm to  an  identifiable  person  or  property"  shall
include  but  not be limited to theft of or damage to property. However,
based upon a review of the facts alleged in the  accusatory  instrument,
if  the  court  determines  that  such  theft is negligible and does not
appear to be in furtherance of other criminal  activity,  the  principal
shall  be  released  on his or her own recognizance or under appropriate
non-monetary conditions; or
(u) criminal possession of a weapon in the third degree as defined  in
subdivision three of section 265.02 of the penal law or criminal sale of
a firearm to a minor as defined in section 265.16 of the penal law.
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. When a securing order is revoked or  otherwise  terminated  in  the
course of an uncompleted action or proceeding but the principal's future
court  attendance still is or may be required and the principal is still
under the control of a court, a new securing order must be issued.  When
the  court  revokes  or  otherwise  terminates  a  securing  order which
committed the principal to the custody of the sheriff, the  court  shall
give   written  notification  to  the  sheriff  of  such  revocation  or
termination of the securing order.