One of the first issues addressed in a criminal case is setting the parameters and terms of a defendant’s release while his/her case is pending. This occurs at the time of arraignment. Knowing the particulars of the bail statute under criminal procedure Law sections 510, 520 and 530 is essential to making an effective argument for a client’s release from police custody.
The purpose of bail is to ensure his/her return to court and not to punish a defendant. The issue of bail is largely a matter of judicial discretion. However defense counsel can have bail reviewed by a higher court if counsel determines bail to be excessive.
The court must consider a variety of factors in deciding the type, amount, and conditions of release. Factors set forth under criminal procedure Law section 510.30 include the defendant’s character, reputation, habits and mental condition; the defendant’s employment and financial resources; family ties and length of time in the community; the defendant’s criminal record including prior adjudication as a juvenile delinquent; prior record of failures to appear in past proceedings; the weight of the evidence against the defendant; and the seriousness of the offense charged.
The court should direct that bail be set in two or more alternative forms and can actually set different amounts for each form. In most instances the court will fix bail in the amount of cash and bond. There are numerous forms of bail including cash, 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.
Of great importance are alternatives that defense counsel must be aware of when a defendant cannot make bail. For example the failure of the People to be ready for a felony hearing within 120 hours of the defendant’s confinement (144 hours if weekends included) in custody entitles the defendant to release on his own recognizance absent good cause for the delay. Also a defendant is entitled to release on his own recognizance where people fail to convert the misdemeanor complaint into an information within five days of arraignment.
There are other alternatives to bail that an experienced defense attorney can consider in certain cases. For example a defendant can be released under supervision of the probation department, otherwise known as pretrial release. Also some judges will release a young defendant to the custody of his or her parents under certain conditions and rules.
If you or a loved one is charged with a criminal offense having an experienced and knowledgeable defense attorney at your side for arraignment is essential when addressing the issue of bail. The difference between an attorney who is experienced in making successful bail arguments versus an attorney with limited experience, can be the difference between being in the community or sitting in a jail cell while the case is pending.
If you have been charged with a crime and wish to know your rights with respect to bail contact attorney Jason Henskee for a free review of your case.
February 13, 2017