§ 530.20 Securing order by local criminal court when action is pending

therein.

When a criminal action is pending in a local criminal court, such court, upon application of a defendant, shall proceed as follows:

1. (a) In cases other than as described in paragraph (b) of this subdivision, 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 subdivision one of 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.

(b) 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, 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 its choice of securing order on the record or in writing. A principal stands charged with a qualifying offense when he or she stands charged with:

(i) a felony enumerated in § 70.02 of the penal law, other than robbery in the second degree as defined in subdivision one of § 160.10 of the penal law, provided, however, that burglary in the second degree as defined in subdivision two of § 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;

(ii) a crime involving witness intimidation under § 215.15 of the penal law;

(iii) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;

(iv) 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;

(v) a sex trafficking offense defined in section 230.34 or 230.34-a of the penal law, or a felony sex offense defined in § 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;

(vi) conspiracy in the second degree as defined in § 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;

(vii) money laundering in support of terrorism in the first degree as defined in § 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in § 470.23 of the penal law; money laundering in support of terrorism in the third degree as defined in § 470.22 of the penal law; money laundering in support of terrorism in the fourth degree as defined in § 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;

(viii) criminal contempt in the second degree as defined in subdivision three of § 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of § 215.51 of the penal law or aggravated criminal contempt as defined in § 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;

(ix) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in § 263.30 of the penal law, use of a child in a sexual performance as defined in § 263.05 of the penal law or luring a child as defined in subdivision one of § 120.70 of the penal law, promoting an obscene sexual performance by a child as defined in § 263.10 of the penal law or promoting a sexual performance by a child as defined in § 263.15 of the penal law;

(x) any crime that is alleged to have caused the death of another person;

(xi) criminal obstruction of breathing or blood circulation as defined in § 121.11 of the penal law, strangulation in the second degree as defined in § 121.12 of the penal law or unlawful imprisonment in the first degree as defined in § 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;

(xii) aggravated vehicular assault as defined in section 120.04-a of the penal law or vehicular assault in the first degree as defined in § 120.04 of the penal law;

(xiii) assault in the third degree as defined in § 120.00 of the penal law or arson in the third degree as defined in § 150.10 of the penal law, when such crime is charged as a hate crime as defined in § 485.05 of the penal law;

(xiv) aggravated assault upon a person less than eleven years old as defined in § 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;

(xv) grand larceny in the first degree as defined in § 155.42 of the penal law, enterprise corruption as defined in § 460.20 of the penal law, or money laundering in the first degree as defined in § 470.20 of the penal law;

(xvi) failure to register as a sex offender pursuant to § 168-t of the correction law or endangering the welfare of a child as defined in subdivision one of § 260.10 of the penal law, where the defendant is required to maintain registration under Article 6-C of the correction law and designated a level three offender pursuant to subdivision six of § 168-l of the correction law;

(xvii) 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;

(xviii) any felony offense committed by the principal while serving a sentence of probation or while released to post release supervision;

(xix) a felony, where the defendant qualifies for sentencing on such charge as a persistent felony offender pursuant to § 70.10 of the penal law;

(xx) 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, 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

(xxi) criminal possession of a weapon in the third degree as defined in subdivision three of § 265.02 of the penal law or criminal sale of a firearm to a minor as defined in § 265.16 of the penal law.

(d) Notwithstanding the provisions of paragraphs (a) and (b) of this subdivision, 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.

2. When the defendant is charged, by felony complaint, with a felony, the court may, in its discretion, and in accordance with section 510.10 of this title, order recognizance, release under non-monetary conditions, or, where authorized, fix bail, or order non-monetary conditions in conjunction with fixing bail, or commit the defendant to the custody of the sheriff except as otherwise provided in subdivision one of this section or this subdivision:

(a) A city court, a town court or a village court may not order recognizance or bail when (i) the defendant is charged with a class A felony, or (ii) the defendant has two previous felony convictions;

(b) No local criminal court may order recognizance, release under non-monetary conditions or bail with respect to a defendant charged with a felony unless and until:

(i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwise waived his right to do so; and

(ii) The court and counsel for the defendant have been furnished with a report of the division of criminal justice services concerning the defendant's criminal record, if any, or with a police department report with respect to the defendant's prior arrest and conviction record, if any. If neither report is available, the court, with the consent of the district attorney, may dispense with this requirement; provided, however, that in an emergency, including but not limited to a substantial impairment in the ability of such division or police department to timely furnish such report, such consent shall not be required if, for reasons stated on the record, the court deems it unnecessary. When the court has been furnished with any such report or record, it shall furnish a copy thereof to counsel for the defendant or, if the defendant is not represented by counsel, to the defendant.