§ 530.40 Order of recognizance, release under non-monetary conditions or

bail; by superior court when action is pending therein.

When a criminal action is pending in a superior court, such court,
upon application of a defendant, must or may order recognizance or bail
as follows:

1. When the defendant is charged with an offense or offenses of less
than felony grade only, the court must, unless otherwise provided by
law, order recognizance or release under non-monetary conditions in
accordance with this section.

2. When the defendant is charged with a felony, the court may, unless
otherwise provided by law in its discretion, order recognizance, release
under non-monetary conditions or, where authorized, bail. In any such
case in which an indictment (a) has resulted from an order of a local
criminal court holding the defendant for the action of the grand jury,
or (b) was filed at a time when a felony complaint charging the same
conduct was pending in a local criminal court, and in which such local
criminal court or a superior court judge has issued an order of
recognizance, release under non-monetary conditions or, where
authorized, bail which is still effective, the superior court's order
may be in the form of a direction continuing the effectiveness of the
previous order.

3. In cases other than as described in subdivision four of this
section the court shall release the principal pending trial on the
principal's own recognizance or release the principal pending trial
under non-monetary conditions, the determination for which shall be made
in accordance with section 510.10 of this title. The court shall explain
the basis for its determination and choice of securing order on the
record or in writing.

4. Where the principal stands charged with a qualifying offense, the
court, unless otherwise prohibited by law, may in its discretion, and in
accordance with section 510.10 of this title, release the principal
pending trial on the principal's own recognizance or under non-monetary
conditions, fix bail, or order non-monetary conditions in conjunction
with fixing bail, or, where the defendant is charged with a qualifying
offense which is a felony, the court may commit the principal to the
custody of the sheriff. The court shall explain the basis for its
determination and its choice of securing order on the record or in
writing. A principal stands charged with a qualifying offense for the
purposes of this subdivision when he or she stands charged with:

(a) a felony enumerated in section 70.02 of the penal law, other than
robbery in the second degree as defined in subdivision one of section
160.10 of the penal law, provided, however, that burglary in the second
degree as defined in subdivision two of section 140.25 of the penal law
shall be a qualifying offense only where the defendant is charged with
entering the living area of the dwelling;

(b) a crime involving witness intimidation under section 215.15 of the
penal law;

(c) a crime involving witness tampering under section 215.11, 215.12
or 215.13 of the penal law;

(d) a class A felony defined in the penal law, provided that for class
A felonies under article two hundred twenty of such law, only class A-I
felonies shall be a qualifying offense;

(e) a sex trafficking offense defined in section 230.34 or 230.34-a of
the penal law, or a felony sex offense defined in section 70.80 of the
penal law or a crime involving incest as defined in section 255.25,
255.26 or 255.27 of such law, or a misdemeanor defined in article one
hundred thirty of such law;

(f) conspiracy in the second degree as defined in section 105.15 of
the penal law, where the underlying allegation of such charge is that
the defendant conspired to commit a class A felony defined in article
one hundred twenty-five of the penal law;

(g) money laundering in support of terrorism in the first degree as
defined in section 470.24 of the penal law; money laundering in support
of terrorism in the second degree as defined in section 470.23 of the
penal law; money laundering in support of terrorism in the third degree
as defined in section 470.22 of the penal law; money laundering in
support of terrorism in the fourth degree as defined in section 470.21
of the penal law; or a felony crime of terrorism as defined in article
four hundred ninety of the penal law, other than the crime defined in
section 490.20 of such law;

(h) criminal contempt in the second degree as defined in subdivision
three of section 215.50 of the penal law, criminal contempt in the first
degree as defined in subdivision (b), (c) or (d) of section 215.51 of
the penal law or aggravated criminal contempt as defined in section
215.52 of the penal law, and the underlying allegation of such charge of
criminal contempt in the second degree, criminal contempt in the first
degree or aggravated criminal contempt is that the defendant violated a
duly served order of protection where the protected party is a member of
the defendant's same family or household as defined in subdivision one
of section 530.11 of this article;

(i) facilitating a sexual performance by a child with a controlled
substance or alcohol as defined in section 263.30 of the penal law, use
of a child in a sexual performance as defined in section 263.05 of the
penal law or luring a child as defined in subdivision one of section
120.70 of the penal law, promoting an obscene sexual performance by a
child as defined in section 263.10 of the penal law or promoting a
sexual performance by a child as defined in section 263.15 of the penal
law;

(j) any crime that is alleged to have caused the death of another
person;

(k) criminal obstruction of breathing or blood circulation as defined
in section 121.11 of the penal law, strangulation in the second degree
as defined in section 121.12 of the penal law or unlawful imprisonment
in the first degree as defined in section 135.10 of the penal law, and
is alleged to have committed the offense against a member of the
defendant's same family or household as defined in subdivision one of
section 530.11 of this article;

(l) aggravated vehicular assault as defined in section 120.04-a of the
penal law or vehicular assault in the first degree as defined in section
120.04 of the penal law;

(m) assault in the third degree as defined in section 120.00 of the
penal law or arson in the third degree as defined in section 150.10 of
the penal law, when such crime is charged as a hate crime as defined in
section 485.05 of the penal law;

(n) aggravated assault upon a person less than eleven years old as
defined in section 120.12 of the penal law or criminal possession of a
weapon on school grounds as defined in section 265.01-a of the penal
law;

(o) grand larceny in the first degree as defined in section 155.42 of
the penal law, enterprise corruption as defined in section 460.20 of the
penal law, or money laundering in the first degree as defined in section
470.20 of the penal law;

(p) failure to register as a sex offender pursuant to section one
hundred sixty-eight-t of the correction law or endangering the welfare
of a child as defined in subdivision one of section 260.10 of the penal
law, where the defendant is required to maintain registration under
article six-C of the correction law and designated a level three
offender pursuant to subdivision six of section one hundred
sixty-eight-l of the correction law;

(q) a crime involving bail jumping under section 215.55, 215.56 or
215.57 of the penal law, or a crime involving escaping from custody
under section 205.05, 205.10 or 205.15 of the penal law;

(r) any felony offense committed by the principal while serving a
sentence of probation or while released to post release supervision;

(s) a felony, where the defendant qualifies for sentencing on such
charge as a persistent felony offender pursuant to section 70.10 of the
penal law;

(t) any felony or class A misdemeanor involving harm to an
identifiable person or property, or any charge of criminal possession of
a firearm as defined in section 265.01-b of the penal law, where such
charge arose from conduct occurring while the defendant was released on
his or her own recognizance, released under conditions, or had yet to be
arraigned after the issuance of a desk appearance ticket for a separate
felony or class A misdemeanor involving harm to an identifiable person
or property, or any charge of criminal possession of a firearm as
defined in section 265.01-b of the penal law, provided, however, that
the prosecutor must show reasonable cause to believe that the defendant
committed the instant crime and any underlying crime. For the purposes
of this subparagraph, any of the underlying crimes need not be a
qualifying offense as defined in this subdivision. For the purposes of
this paragraph, "harm to an identifiable person or property" shall
include but not be limited to theft of or damage to property. However,
based upon a review of the facts alleged in the accusatory instrument,
if the court determines that such theft is negligible and does not
appear to be in furtherance of other criminal activity, the principal
shall be released on his or her own recognizance or under appropriate
non-monetary conditions; or

(u) criminal possession of a weapon in the third degree as defined in
subdivision three of section 265.02 of the penal law or criminal sale of
a firearm to a minor as defined in section 265.16 of the penal law.

5. Notwithstanding the provisions of subdivisions three and four of
this section, with respect to any charge for which bail or remand is not
ordered, and for which the court would not or could not otherwise
require bail or remand, a defendant may, at any time, request that the
court set bail in a nominal amount requested by the defendant in the
form specified in paragraph (a) of subdivision one of section 520.10 of
this title; if the court is satisfied that the request is voluntary, the
court shall set such bail in such amount.

6. Notwithstanding the provisions of subdivisions two, three and four
of this section, a superior court may not order recognizance, release
under non-monetary conditions or, where authorized, bail, or permit a
defendant to remain at liberty pursuant to an existing order, after the
defendant has been convicted of either: (a) a class A felony or (b) any
class B or class C felony as defined in article one hundred thirty of
the penal law committed or attempted to be committed by a person
eighteen years of age or older against a person less than eighteen years
of age. In either case the court must commit or remand the defendant to
the custody of the sheriff.

7. Notwithstanding the provisions of subdivisions two, three and four
of this section, a superior court may not order recognizance, release
under non-monetary conditions or, where authorized, bail when the
defendant is charged with a felony unless and until the district
attorney has had an opportunity to be heard in the matter and such court
and counsel for the defendant have been furnished with a report as
described in subparagraph (ii) of paragraph (b) of subdivision two of
section 530.20 of this article.