Ever since the new bail legislation took effect in New York State on January 1, 2020, a lot of people (e.g., clients, potential clients, friends, family, etc.) have been asking me what these changes to the law actually mean. The most common questions are whether a defendant who who killed a person(s) (e.g., criminally negligent homicide) or assaulted a person(s) will now have to be released without bail after being arrested and arraigned. And the answer is not a simple “yes” or “no.” The law is in a constant flux as courts render decisions and set precedent.

Conditions for a criminally accused to be released in exchange for money or “cash” (e.g., cash, credit card, bonds) while awaiting the outcome of his or her case have been pretty much abolished for all misdemeanors and non-violent felonies – although this also applies to a number of felonies that are violent in nature but are no longer viewed as such in the eye of the law – which is why there has been a great deal of criticism of this new bail legislation. Before this new legislation was put into place, the government (represented by the district attorney’s office) was able to ask the judge to impose bail on misdemeanors and non-violent felonies – which is why our jails have always been so overpopulated.


Before I get into some examples of misdemeanors and felonies that no longer qualify for bail, I want to discuss another sweeping change in the law. Prior to the enactment of the new law, defendants arrested for misdemeanors and Class E felonies (which is the lowest class level for a felony offense, A-I being the highest) would have to be arrested, go through the booking process and see judge before being arraigned. With the new law in place, police officers will no longer have the right to forgo a ticket, known as a Desk Appearance Ticket or DAT (which is a formal arrest without having to be held under arrest until arraignment) when arresting a defendant. Now, police officers will bring the arrested defendant to the precinct, issue a DAT, which gives the arrested defendant a ticket with instructions to appear in court on a certain date. After issuing the DAT, the defendant is released from the precinct without having to remain under arrest until being transported to Central Booking to be processed and see a judge.

Prior to the changes in the law, DATs would only be issued to defendants picked up on New York misdemeanors or petty offenses, such as minor marijuana possession charges (New York Penal § 221.10). And although the New York Criminal Procedure Law would allow for certain Class E felonies to be processed as a DAT, that rarely happened. Given the new legislation, police officers are now mandated to issue DATs to defendants charged with misdemeanors and class E felonies.


Now, going back to the new bail laws that went into effect on January 1, 2020. Virtually all misdemeanor and non-violent felonies charges no longer qualify for bail since the new law went into place. In fact, many judges would start following this law prior to January 1, 2020, in anticipation of the changes to the law. I had a client who posted bail in the amount of $10,000 in a criminal sale of a control substance case. In December of 2019, the presiding judge exonerated my client’s bail since the crime he was charged with no longer qualified for bail. In other words, in the eye of the law makers, bail should not apply to non-violent offenses. However, keep in mind that certain misdemeanor and felony crimes are violent offenses yet in the eye of the law they no longer qualify for bail. But given that misdemeanors are not statutorily designated as violent – even if the alleged conduct appears to be violent (e.g., Third-degree assault, Fifth-degree arson, etc…) – bail will no longer apply to any misdemeanor offense in New York State.

Moreover, there is a large number of felonies that are designated as non-violent and do not qualify for bail, although they may seem and sound violent in nature. For example, Third-degree robbery, which is using physical force to steal property from another (without using/threatening to use a weapon or causing physical harm).

This new law that requires the mandatory release of a defendant who has been an arrested for a non-qualifying offense does not necessarily mean that the defendant will be released without any conditions. Courts can impose non-monetary conditions such as pretrial supervision programs, electronic monitoring such as an ankle bracelet, surrendering a passport , and travel restrictions. The courts can even impose bail on a non-qualifying offense if the defendant “persistently and willfully” fails to appear in court, commits another felony after being released on a felony, tampers or threatens a witness, or violates another court order such as an order of protection in a domestic violence or family case.

Whether the new law poses a higher risk to society or will result in more crimes is something that the legislators are currently looking at and discussing among each other. As of now however, this is the current law of the State of New York.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.

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