October 27, 2016
The first real issue that is addressed after someone has been arrested for and formally charged with a crime is that of bail or recognizance. This is a determination ultimately made by the judge after considering arguments from both the prosecution and the defense as to what conditions of release are appropriate during the pendency of the prosecution. Bail should be addressed at arraignment (the very first appearance before a judge), but some courts will schedule a bail hearing, and in some instances the defense attorney may reserve the right (postpone) to make a bail application because they do not yet have enough information about the defendant’s circumstances (that usually only occurs in public defender or assigned counsel cases). Although each criminal case is different, and sometimes very creative bail conditions are required, bail status generally fall into the following categories:
***This is only a very superficial overview of bail in NYS. Any specific or more detailed questions should be directed to an experienced criminal defense attorney.***
In most cases involving minor offenses and a defendant with little or no criminal history, courts will typically agree to “ROR” the defendant, or release him or her on her own recognizance. This just means that the defendant is released to his or her own devises with the obligation to return to all future court appearances and proceedings as directed. Failure to do so may result in the court changing the bail status to RUS or setting bail.
In lieu of setting cash bail and in slightly more serious cases or where the judge believes the defendant should be a little more closely monitored pending the prosecution, a defendant may be released under the supervision of probation by directing the defendant to periodically report to the department of probation. The number of times may vary from one or two times a month to several times a week. The degree of pre-trial supervision will depend on the defendant’s criminal history, any history of missed court appearances, the nature of the offense and the reason for the required supervision (i.e., drug monitoring, ensuring the defendant stays in the jurisdiction, etc…). Again, failure to abide by the terms of RUS will almost always result in the court setting bail.
Money is a powerful motivator. So sometimes the only way to ensure a defendant will continue to appear for future court appearances is to impose a heavy financial penalty if they don’t. That’s where bail comes in. Bail will most often be set in instances where the defendant has a history of missed appearances and bench warrants, lives far away, or the charges are serious enough to concern the court that the defendant may flee the jurisdiction instead of staying to defend the case, or any combination of those considerations (there are seven specific factors a court will evaluate when considering the issue of bail, NY CPL Sec. 510.30). Bail is typically set in alternative amounts, meaning a cash amount and a bond amount. Here in the Hudson Valley, cash bail is generally half of the bond amount, meaning bail may be set, for example, in an amount of $5,000 cash over $10,000 bond ($5k/10k). That is not always the case, however, and the court can impose whatever cash or bond values it decides is appropriate. If the defendant can post the bail, he or he will be released from custody and remain at large provided the defendant continues to make all appearances. If the defendant misses even one appearance or other court-imposed obligation, the court may revoke the bail and remand the defendant (put him or her in jail). Bail will be exonerated (released) when the matter is fully resolved (plea and sentence), although in some cases all or at least a portion of the bail can be released while the matter is pending, if the defendant has demonstrated they deserve such a break. In NY, the state will keep 3% of the bail amount posted.
Remanded without bail
This situation applies to the most serious of charges or for those defendants who have been previously convicted of multiple felonies and now stand before the court charged with yet another. If a defendant is first arraigned in a lower or local court (i.e., a village, town or city court), the lower court is not permitted to set bail if (1) the defendant is charged with a class A felony or (2) the defendant is currently charged with a felony after having been convicted at least two time before for a felony offense. In other words, if you have at least two prior felony convictions and are arrested for a new felony, or you are charged with murder, for example, the lower court cannot set bail in any amount. There are mechanisms to address bail for defendants in these circumstances in a higher court, however, but that is not something that happens right away. If the felony matter is ultimately transferred to a superior court, like county court, the superior court has the authority to address bail under any circumstance, but that does not mean that court will set bail; that depends on the nature and circumstances of the offense and defendant. A county or superior court has the discretion to remand a defendant without bail if deemed appropriate.
Long story short, it is critical that a defendant understand the bail status to ensure compliance with all pre-trial release requirements. One misstep can immediately land a defendant in jail, jeopardizing the security of his or her job and family. It’s just as important that the defense attorney understand the ins and outs of bail and the various statuses/conditions of release to ensure that the client gets credit for every second spent in jail pre-trial (note: if all the right steps have been followed, every day a defendant serves in jail prior to any conviction and sentence of incarceration will count toward the total sentence. For example, if a defendant was incarcerated for 30 days pre-trial, whether that defendant subsequently posts bail or not, and is ultimately sentenced to 90 days in jail after conviction, that 30-day pre-trial incarceration period will be applied to that sentence and reduce the number of days the defendant must serve in jail accordingly).
If you or someone you care about has been charged with a crime, call the experienced DWI and criminal defense attorneys of Catalano & Carpenter LLP at (845) 454-1919 to schedule a free consultation to discuss how we can help. Or email me directly at Todd@CatalanoCarpenter.com. The sooner we get involved, the sooner we can help.