Securing order by local criminal court when action is pending therein

§ 530.20 Securing order by local criminal court when action is pending\n therein.\n When a criminal action is pending in a local criminal court, such\ncourt, upon application of a defendant, shall proceed as follows:\n 1. (a) In cases other than as described in paragraph (b) of this\nsubdivision, 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 subdivision one of section 510.10 of this title. The\ncourt shall explain the basis for its determination and choice of\nsecuring order on the record or in writing.\n (b) Where the principal stands charged with a qualifying offense, the\ncourt, unless otherwise prohibited by law, may in its discretion release\nthe principal pending trial on the principal's own recognizance or under\nnon-monetary conditions, fix bail, order non-monetary conditions in\nconjunction with fixing bail, or, where the defendant is charged with a\nqualifying offense which is a felony, the court may commit the principal\nto the custody of the sheriff. The court shall explain its choice of\nsecuring order on the record or in writing. A principal stands charged\nwith a qualifying offense when he or she stands charged with:\n (i) 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 (ii) a crime involving witness intimidation under section 215.15 of\nthe penal law;\n (iii) a crime involving witness tampering under section 215.11, 215.12\nor 215.13 of the penal law;\n (iv) a class A felony defined in the penal law, provided, that for\nclass A felonies under article two hundred twenty of such law, only\nclass A-I felonies shall be a qualifying offense;\n (v) 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 (vi) 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 (vii) 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 (viii) criminal contempt in the second degree as defined in\nsubdivision three of section 215.50 of the penal law, criminal contempt\nin the first degree as defined in subdivision (b), (c) or (d) of section\n215.51 of the penal law or aggravated criminal contempt as defined in\nsection 215.52 of the penal law, and the underlying allegation of such\ncharge of criminal contempt in the second degree, criminal contempt in\nthe first degree or aggravated criminal contempt is that the defendant\nviolated a duly served order of protection where the protected party is\na member of the defendant's same family or household as defined in\nsubdivision one of section 530.11 of this article;\n (ix) 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 (x) any crime that is alleged to have caused the death of another\nperson;\n (xi) 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 (xii) aggravated vehicular assault as defined in section 120.04-a of\nthe penal law or vehicular assault in the first degree as defined in\nsection 120.04 of the penal law;\n (xiii) 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 (xiv) 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 (xv) 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 (xvi) 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 (xvii) 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 (xviii) any felony offense committed by the principal while serving a\nsentence of probation or while released to post release supervision;\n (xix) 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 (xx) 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, provided, however, that the prosecutor must show reasonable\ncause to believe that the defendant committed the instant crime and any\nunderlying crime. For the purposes of this subparagraph, any of the\nunderlying crimes need not be a qualifying offense as defined in this\nsubdivision. For the purposes of this paragraph, "harm to an\nidentifiable person or property" shall include but not be limited to\ntheft of or damage to property. However, based upon a review of the\nfacts alleged in the accusatory instrument, if the court determines that\nsuch theft is negligible and does not appear to be in furtherance of\nother criminal activity, the principal shall be released on his or her\nown recognizance or under appropriate non-monetary conditions; or\n (xxi) criminal possession of a weapon in the third degree as defined\nin subdivision three of section 265.02 of the penal law or criminal sale\nof a firearm to a minor as defined in section 265.16 of the penal law.\n (d) Notwithstanding the provisions of paragraphs (a) and (b) of this\nsubdivision, 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 2. When the defendant is charged, by felony complaint, with a felony,\nthe court may, in its discretion, and in accordance with section 510.10\nof this title, order recognizance, release under non-monetary\nconditions, or, where authorized, fix bail, or order non-monetary\nconditions in conjunction with fixing bail, or commit the defendant to\nthe custody of the sheriff except as otherwise provided in subdivision\none of this section or this subdivision:\n (a) A city court, a town court or a village court may not order\nrecognizance or bail when (i) the defendant is charged with a class A\nfelony, or (ii) the defendant has two previous felony convictions;\n (b) No local criminal court may order recognizance, release under\nnon-monetary conditions or bail with respect to a defendant charged with\na felony unless and until:\n (i) The district attorney has been heard in the matter or, after\nknowledge or notice of the application and reasonable opportunity to be\nheard, has failed to appear at the proceeding or has otherwise waived\nhis right to do so; and\n (ii) The court and counsel for the defendant have been furnished with\na report of the division of criminal justice services concerning the\ndefendant's criminal record, if any, or with a police department report\nwith respect to the defendant's prior arrest and conviction record, if\nany. If neither report is available, the court, with the consent of the\ndistrict attorney, may dispense with this requirement; provided,\nhowever, that in an emergency, including but not limited to a\nsubstantial impairment in the ability of such division or police\ndepartment to timely furnish such report, such consent shall not be\nrequired if, for reasons stated on the record, the court deems it\nunnecessary. When the court has been furnished with any such report or\nrecord, it shall furnish a copy thereof to counsel for the defendant or,\nif the defendant is not represented by counsel, to the defendant.\n