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.
When Bail is forfeited because the accused has failed to show up to court, application for the remission of Bail must be made within one year of the forfeiture and on 5 days notice to the district attorney. The standard for remission is high, it must be justified by exceptional circumstances.
The best bet when seeking Bail, of course, is a ROR, meaning that “[a] court releases a principal on his own recognizance when, having acquired control over his person, it permits him to be at liberty during the pendency of the criminal action or proceeding involved upon condition that he will appear thereat whenever his attendance may be required and will at all times render himself amenable to the orders and processes of the court.” N.Y. CPL § 500.10 (2).
The last thing I will touch on is the purpose of Bail. Bail is not meant to be used to punish the accused or even as a tool to prevent the accused from being out on the streets to protect the public or anyone else. Bail has a singular purpose and that purpose is ONLY to ensure that the accused returns to subsequent criminal proceedings. That means the court CANNOT judge the accused as if they were guilty of the charges because the accused is innocent until proven guilty. This concept is usually the basis for a successful writ of habeas corpus when Bail is denied or set excessively. So in summation, Bail is used ONLY to deter an accused’s risk of flight from proceedings and NOTHING ELSE.
If you want to learn more about Michael A. Huerta, Attorney and Counselor at Law, or Huerta PLLC, a New York Law Firm, visit http://HuertaPLLC.com