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 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 or  release  the  principal  pending  trial
under non-monetary conditions, the determination for which shall be made
in accordance with section 510.10 of this title. The court shall explain
the  basis  for  its  determination  and 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, and in
accordance  with  section  510.10  of  this title, 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. The  court  shall  explain  the  basis  for  its
determination  and  its  choice  of  securing  order 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;
(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.  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.