N.Y. Criminal Procedure Law 510.10 – Securing order; when required; alternatives available; standard to be applied
§ 510.10 Securing order; when required; alternatives available; standard
Attorney's Note
Under the New York Laws, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class A misdemeanor | up to 364 days | up to $1,000 |
Terms Used In N.Y. Criminal Procedure Law 510.10
- Allegation: something that someone says happened.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
- Bail: means cash bail, a bail bond or money paid with a credit card. See N.Y. Criminal Procedure Law 500.10
- Conviction: A judgement of guilt against a criminal defendant.
- Court: includes , where appropriate, a judge authorized to act as described in a particular statute, though not as a court. See N.Y. Criminal Procedure Law 500.10
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Post bail: means to deposit bail in the amount and form fixed by the court, with the court or with some other authorized public servant or agency. See N.Y. Criminal Procedure Law 500.10
- Principal: means a defendant in a criminal action or proceeding, or a person adjudged a material witness therein, or any other person so involved therein that the principal may by law be compelled to appear before a court for the purpose of having such court exercise control over the principal's person to secure the principal's future attendance at the action or proceeding when required, and who in fact either is before the court for such purpose or has been before it and been subjected to such control. See N.Y. Criminal Procedure Law 500.10
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Remand: When an appellate court sends a case back to a lower court for further proceedings.
- Securing order: means an order of a court committing a principal to the custody of the sheriff or fixing bail, where authorized, or releasing the principal on the principal's own recognizance or releasing the principal under non-monetary conditions, or, as otherwise authorized under this title, ordering non-monetary conditions in conjunction with fixing bail. See N.Y. Criminal Procedure Law 500.10
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
to be applied.
The imposition of a specific type of securing order is in some cases required by law and in other cases within the discretion of the court in accordance with the principles of, and pursuant to its authority granted under, this title.
1. When a principal, whose future court attendance at a criminal action or proceeding is or may be required, comes under the control of a court, such court shall impose a securing order in accordance with this title. Except as otherwise required by law, the court shall make an individualized determination as to whether the principal poses a risk of flight to avoid prosecution, consider the kind and degree of control or restriction necessary to reasonably assure the principal's return to court, and select a securing order consistent with its determination under this subdivision. The court shall explain the basis for its determination and its choice of securing order on the record or in writing. In making a determination under this subdivision, the court must consider and take into account available information about the principal, including:
(a) The principal's activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) The principal's criminal conviction record if any;
(d) The principal's record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.1 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any;
(e) The principal's previous record with respect to flight to avoid criminal prosecution;
(f) If monetary bail is authorized, according to the restrictions set forth in this title, the principal's individual financial circumstances, and, in cases where bail is authorized, the principal's ability to post bail without posing undue hardship, as well as his or her ability to obtain a secured, unsecured, or partially secured bond;
(g) Any violation by the principal of an order of protection issued by any court;
(h) The principal's history of use or possession of a firearm;
(i) Whether the charge is alleged to have caused serious harm to an individual or group of individuals; and
(j) If the principal is a defendant, in the case of an application for a securing order pending appeal, the merit or lack of merit of the appeal.
2. A principal is entitled to representation by counsel under this chapter in preparing an application for release, when a securing order is being considered and when a securing order is being reviewed for modification, revocation or termination. If the principal is financially unable to obtain counsel, counsel shall be assigned to the principal.
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, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court. In such instances, the court shall release the principal under non-monetary conditions as provided for in subdivision three-a of section 500.10 of this title that will reasonably assure the principal's return to court. The court shall explain its 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 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. 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 § 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;
(b) a crime involving witness intimidation under § 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 the penal 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 § 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 § 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 § 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;
(h) 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 title;
(i) 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;
(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 § 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 title;
(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 § 120.04 of the penal law;
(m) 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;
(n) 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;
(o) 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;
(p) 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;
(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 § 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 § 265.02 of the penal law or criminal sale of a firearm to a minor as defined in § 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. When a securing order is revoked or otherwise terminated in the course of an uncompleted action or proceeding but the principal's future court attendance still is or may be required and the principal is still under the control of a court, a new securing order must be issued. When the court revokes or otherwise terminates a securing order which committed the principal to the custody of the sheriff, the court shall give written notification to the sheriff of such revocation or termination of the securing order.