Tuesday, February 5, 2013

Bail in NYS

After arrest, and during the first arraignment, the court will consider if Bail is appropriate. New York Criminal Penal Law (CPL) § 510.30 sets out the factors the court should consider when deliberating Bail, which are:
  • Character, reputation, habits and mental condition;
  • Employment and financial resources;
  • Family ties and the length of his or her residence in the community;
  • Criminal record;
  • Record or adjudication as a juvenile offender or youthful offender; and
  • Record of responding to court appearances.
The court will also consider:
  • The weight of the evidence against the accused in the pending criminal action and the likelihood of conviction; and
  • The sentence that may be imposed on conviction.
There are different types of Bail that can be posted, these include:
  • Cash bail;
  • Insurance company bail bond;
  • Secured surety bond;
  • Secured appearance bond;
  • Partially secured surety bond;
  • Partially secured appearance bond;
  • Unsecured surety bond; and
  • Unsecured appearance bond.
Courts are allowed to designate the amount of Bail without designating the form of Bail or a court can give alternate forms of Bail, judges have a lot of discretion. Although judges have this broad discretion setting Bail, their decisions can always be challenged with a writ of habeas corpus, that is, challenging the decision based on the assertion that a constitutional or statutory provision prohibiting excessive Bail has been violated. However, if there are new facts that might effect the first court’s decision on Bail, those facts must be presented to the original court prior to seeking appeal from a higher court for the habeas corpus.
Although the United States Constitution and the New York Constitution do not create the right to Bail, the right to Bail in New York is statutory. Further, the court must grant Bail or Release on own Recognizance (ROR) when the charge is simply a violation or misdemeanor.
Originally Posted by Michael Huerta***
J John Sebastian Attorney Buffalo NY

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