Written by attorney George Peter Conway

Basic Overview of Bail in New York Criminal Cases

Bail in New York Criminal Cases

The primary purpose of bail in New York is to assure that a criminal defendant will be at all required court appearances. Bail is not to be used as preventive detention or pre-trial punishment. The judge usually decides the type and amount of bail to be posted in each case at the arraignment. But, a desk officer at the police station may set bail if the person is charged with an offense lower than a Class D Felony.

The court must release a defendant accused of a non-felony offense on bail or recognizance. A defendant accused of a felony may –in certain cases- be refused bail and remanded to jail. A defendant accused of a parole violation is not entitled to bail.

The criteria used to set bail includes: (1) The character, reputation, habits and mental condition of the defendant; (2) The employment status and financial resources of the defendant; (3) The defendant’s family ties and length of residence in the community; (4) The defendant’s criminal and juvenile record; (5) The defendant’s previous record of court appearances or flight; (6) The weight of the evidence and any other factor indicating the probability of conviction; and (7) The sentence that may be or has been imposed upon conviction.

The criminal defense attorney may submit a written or oral application for bail. In my experience, local court judges will usually accept an oral bail application while superior court judges usually require a written bail application. However, a criminal defense attorney who submits a written application for bail will usually still be heard by the court on the issue of bail. If time permits, I like to submit a written application for bail with various affidavits and exhibits relevant to the above listed criteria. I also like defendant’s family members to be present in the court room when being heard by the court on the issue of bail because it shows the defendant has strong family ties.

There are nine different types of bail: 1. Cash; 2. An insurance company bail bond; 3. A secured surety bond; 4. A partially secured surety bond; 5. An unsecured surety bond; 6. A secured appearance bond; 7. A partially secured appearance bond; 8. An unsecured appearance bond and 9. A credit card or similar device. In my experience, most judges require either cash or an insurance company bail bond. The court may also allow the pledge of real property to serve as bail. The equity in the property usually needs to be two times the amount of the bail.

The court -in addition to setting bail- may also set certain conditions to ensure your appearance in court and/or to protect witnesses such as ordering you to: surrender your passport; stay within the court’s jurisdiction; report to probation on a set basis; wear an electronic monitor; stay away from a certain person or place; etc.

The issue of bail is reviewable by the court at anytime. If there is a change of circumstances, the defendant or prosecutor can ask the court- upon notice to the other side- to review the issue of bail. If the defendant is arrested on a new charge while on bail, the court may revoke the bail. If a defendant is indicted on a felony, the issue of bail will be revisited at the arraignment on the indictment. If the defendant is found guilty after trial, the court may revisit the issue of bail pending sentencing. If the case is appealed, the court may revisit the issue of bail pending appeal.

If cash bail is posted, the court will return 97% of the amount posted at the conclusion of the case unless the case is dismissed or the defendant is found not guilty. The remaining 3% is kept by the state. If the defendant is exonerated, the court will return 100% of the cash bail posted. If the defendant fails to appear in court when required, the judge can order the bail forfeited and after 30 days the defendant can be charged with bail jumping. If the bail is forfeited, your lawyer can file a written request with the court to attempt to get back some or all it.

If you decide to post a bail bond, you will need to contact a bail bondsman. A bail bondsman can charge you a premium of 10% for bonds up to $3,000; 8% on bonds between $3,000 and $10,000 and 6% on bonds over $10,000. These premiums are non-refundable even if the defendant is exonerated.

Bail is usually posted at the correctional facility where the defendant is being held. Please sure to get a receipt and retain it for your records.

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