If someone you care about was just arrested in Brooklyn, the first question is usually “Will they come home?” In New York, the judge decides that at arraignment, and the answer depends heavily on the charge. This page explains how release and bail work under New York law, what a judge must consider, the forms bail can take, and the ways to ask for a lower bail or release.

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What is a “securing order,” and what is bail?

When a person charged with a crime comes before a court, the court must issue a securing order. That order says whether the person is released on their own recognizance, released under non-monetary conditions, required to post bail, or, in limited cases, held. The court must make an individualized determination of whether the person “poses a risk of flight to avoid prosecution” and choose the kind of order needed “to reasonably assure the principal’s return to court.” The judge must explain the choice on the record or in writing (CPL § 510.10(1)).

Under New York law, bail means cash bail, a bail bond, or payment by credit card (CPL § 500.10(9)). Bail is a way to make sure a person comes back to court. It is not a punishment or a fine.

Qualifying vs. non-qualifying offenses: why the charge matters

Non-qualifying offenses. For charges that are not “qualifying offenses,” the court must release the person on their own recognizance (ROR) unless it finds, on the record or in writing, that ROR will not reasonably assure their return to court. In that case the court must release the person under non-monetary conditions. Bail cannot be set on these charges (CPL §§ 510.10(3), 530.20(1)).

Qualifying offenses. For a qualifying offense, the judge may choose ROR, non-monetary conditions, bail, or bail plus conditions. For a qualifying felony, the judge may also order the person held (CPL § 510.10(4)). The list of qualifying offenses is long and specific. Examples include most violent felonies listed in Penal Law § 70.02 (with some exceptions), many felony sex offenses, certain domestic-violence criminal contempt charges, any crime alleged to have caused a death, and certain weapon charges (CPL § 510.10(4)(a) through (u)). Whether a particular charge qualifies depends on its exact section and subdivision, so a lawyer should check the charging papers.

A few misdemeanors are on the qualifying list, so the line isn’t simply “felony vs. misdemeanor.” It also matters whether a new charge was allegedly committed while the person was already released on another pending case (CPL § 510.10(4)(t)).

What does the judge consider?

New York law lists the information a judge must consider when choosing a securing order (CPL § 510.10(1)(a) through (j)). It includes:

  • the person’s activities and history;
  • the charges;
  • any criminal conviction record;
  • certain juvenile delinquency or youthful offender records;
  • any previous record of flight to avoid prosecution;
  • where bail is authorized, the person’s individual financial circumstances and ability to post bail “without posing undue hardship,” including the ability to get a secured, unsecured, or partially secured bond;
  • any violation of an order of protection;
  • any history of using or possessing a firearm;
  • whether the charge is alleged to have caused serious harm to an individual or group; and
  • for release pending appeal, the merit of the appeal.

In felony cases, a local criminal court generally cannot order release until the District Attorney has had a chance to be heard and the court has the person’s criminal history report (CPL § 530.20(2)(b)).

What are non-monetary conditions?

Non-monetary conditions are court-ordered rules that let a person stay home while the case goes on. The law lists examples, including contact with a pretrial services agency, travel restrictions or surrendering a passport, not possessing firearms, and staying away from certain people or places connected with the charge. Electronic monitoring is allowed only in limited circumstances. The person “shall not be required to pay for any part of the cost” of release on non-monetary conditions (CPL § 500.10(3-a)).

What forms can bail take?

New York recognizes nine forms of bail: cash bail, an insurance company bail bond, a secured surety bond, a secured appearance bond, a partially secured surety bond, a partially secured appearance bond, an unsecured surety bond, an unsecured appearance bond, and credit card (CPL § 520.10(1)).

  • At least three forms. When a judge sets bail, the judge must direct at least three forms. One of them must be either an unsecured surety bond or a partially secured surety bond (CPL § 520.10(2)(b)).
  • Partially secured bonds require a deposit of no more than ten percent of the total bond amount (CPL § 500.10(18)).
  • Secured bonds are backed by personal property at least equal to the bond amount, or by real property worth at least twice the amount (CPL § 500.10(17)).

The form of bail can matter as much as the amount, so a defense lawyer will often ask the court for forms the family can actually meet. The law also tells the court to consider the person’s ability to obtain these bonds (CPL § 510.10(1)(f)).

How can bail be reduced or reviewed?

Bail set at arraignment is not always the final word. Depending on the case, there are several routes:

  1. A new application in the same court. A person who is held may apply for release on recognizance, release under non-monetary conditions, or a bail reduction. They have the right to counsel and an opportunity to be heard and present evidence. If charges are dismissed or reduced so the original order no longer fits, the court must issue a new securing order (CPL § 510.20).
  2. Review by a superior court judge. When a case is pending in a local criminal court, such as the New York City Criminal Court, a judge of a superior court, such as the Supreme Court, may review the order if the local court lacked authority to release, denied release, fixed “excessive” bail, or set conditions more restrictive than necessary. The superior court may set lesser or less burdensome terms. Only one application may be made under this section, so timing and preparation matter (CPL §§ 10.10(2) through (3), 530.30).
  3. After indictment. Once a felony case is indicted and pending in Supreme Court, that court issues a securing order at arraignment on the indictment and handles release applications (CPL §§ 210.15(6), 530.40).
  4. Habeas corpus. A person who believes they are being held illegally, or someone acting on their behalf, may petition for a writ of habeas corpus (CPLR 7002(a)). In New York City, a person held in a city detention facility generally petitions the Supreme Court in the county where the charge is pending (CPLR 7002(b)(5)).

At every one of these steps, the law gives the person the right to a lawyer, and a lawyer must be assigned if they can’t afford one (CPL § 510.10(2)).

What can families do before and after arraignment?

  • Gather facts that relate to the legal factors: work or school schedule, where the person lives and with whom, family responsibilities, and past court appearances.
  • Know what the family can realistically post, and in what form (cash, partially secured bond, and so on). This relates to the ability-to-pay factor in CPL § 510.10(1)(f).
  • Keep every court date and follow every condition. Missing court can lead to a new securing order.

Related charges and pages

Talk to a Brooklyn criminal defense lawyer

Michael Chessa is a former Assistant District Attorney with the Kings County District Attorney’s Office. The Law Offices of Michael Chessa PLLC is at 44 Court Street, Suite 1217, Brooklyn, NY 11201. For a free initial consultation about a bail hearing or a bail reduction, call (917) 997-8873 or use the contact form.

Attorney Advertising. Prior results do not guarantee a similar outcome. This page is general information about New York law, not legal advice. Reading it or contacting the office does not create an attorney-client relationship. Every case depends on its own facts.

Citations

Official text checked at nysenate.gov:

  • CPL § 500.10(3-a), (9), (17), (18): definitions (non-monetary conditions, bail, secured and partially secured bonds)
  • CPL § 510.10(1) through (4): securing orders, factors, right to counsel, non-qualifying vs. qualifying offenses
  • CPL § 510.20: application for release or a bail change while held
  • CPL § 520.10: forms of bail; at least three forms
  • CPL § 530.20: local criminal court release rules; felony prerequisites
  • CPL § 530.30: superior court review; one application
  • CPL § 530.40 and § 210.15(6): securing orders after indictment
  • CPL § 10.10(2) through (3): superior courts and local criminal courts
  • CPLR 7002(a), (b)(5): habeas corpus petition