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The bail process in the criminal justice system is designed to ensure that defendants appear at future court dates after being released from jail. Bail is set during the arraignment process based on bail schedules and judicial discretion.
It is important to understand the bail process in New York, because it is more complex than in other states. For example, New York bail reform has made it possible to be released without paying cash for many crimes. New York law dictates that poverty not be a barrier to posting bail, and there are a number of ways bail can be satisfied depending on the case.
It is equally important to have an attorney present during the bail hearing to ensure that your rights are protected and that bail is fair and reasonable. A criminal defense attorney from Rosenblum Law can help ensure you or your loved one receives the best possible outcome. This brief article will discuss the bail process in New York and what one can expect during bail hearings.
The Bail Process in New York
Bail is cash or a bond that is put up by the defendant. The purpose of bail is to hold defendants accountable and ensure they return to court.
In New York, certain crimes are eligible for bail, while others are not. However, if one commits a crime while a case is ongoing, bail may be set even for non-eligible offenses. Bail is also set for non-eligible offenses if one is on parole and commits a new crime.
There are several factors considered by the judge when setting bail:
- The nature of the crime
- Flight risk
- The defendant’s criminal history, if any
- The defendant’s record of appearing in court when required
- The weight of evidence against the defendant
- Potential danger posed by the defendant to the community
The judicial system also relies on bail schedules. Bail schedules are lists of common crimes with suggested bail. Because these are merely suggestions, judges can change these amounts.
The Bail Hearing Process
The process to be eligible for bail is as follows:
- When someone is arrested, they are held in custody until their arraignment is scheduled.
- The arraignment is when the defendant appears before the judge in court. During arraignment, the defendant will hear the charges against them, and they will enter their plea. If they plead not guilty, the bail hearing will be scheduled.
- During the bail hearing, the prosecution and defense will have an opportunity to present their case for or against cash bail or another type of bail.
- The judge will then determine bail based on the facts of the case, the bail schedules, and their own discretion.
It is important that you have an attorney during the bail hearing. An attorney can apply for someone to be released on their own recognizance. Rosenblum Law criminal defense attorneys also have experience in arguing for fair bail when a judge rules that bail will be required.
The Process of Posting Bail in New York
The process of posting bail in New York varies depending on the type of bail and where the arrest was made. The person posting bail on behalf of the defendant is called the surety. In New York City, the surety can pay cash bail at any of the DOC locations listed on their website.
Elsewhere in New York, one can pay cash bail online or at the jail where the defendant is held. It may also be possible to post bail at the court clerk if the surety is at court and has the bail ready.
If someone does not have enough cash to pay the bail, they can go through a bail bondsman. The bail bondsman will charge up to 10% of the bail as a service fee and post bail on behalf of the defendant. If the defendant does not go to court, the bondsman will track them down and make sure they are surrendered, which means taking them back to jail to await trial. The service fee is not refundable.
Types of Bail in New York
There are several types of bail in New York that a judge may order, including:
- Cash bail: This was once the most common, but bail reform in New York prioritizes release. Cash bail is a bail amount that must be paid to the court in cash.
- Bail Bond: A bail bond is when a bail bondsman posts bail on behalf of the defendant after being paid up to 10% by a surety.
- Property Bond: A property bond is when the judge allows collateral to be posted in place of cash or a bail bond.
- Partially Secured Bonds: Partially secured bonds are bonds backed by collateral given to the court to hold. This can be real property or any other type of collateral found to be acceptable by the court. With partially secured bonds, the collateral may not be worth as much as the cash bail.
- Unsecured Bonds: Unsecured bonds are issued without collateral. However, the surety must sign the bond stating that it will pay if the defendant does not show up in court.
- Release on Recognizance: Being released on ROR means that the defendant is promising to appear in court. This can come with conditions, such as not being able to leave a geographical area.
Partially secured and unsecured bonds can come with additional non-monetary bond conditions, such as:
- Electronic monitoring through an ankle monitor
- Supervision
- Curfew
- Drug testing
- Mandatory check-ins
- Travel restrictions
- Staying in a halfway house
These conditions are meant to ensure that the defendant does not try to flee rather than appearing in court.
If the defendant does not appear, a warrant will be issued for their arrest. The police will then search for them, arrest them, and return them to jail to await trial.
The Role of an Attorney in the Bail Process
It is very important to have legal representation during the bail hearing. An attorney can advocate for lower bail or alternative release options to make conditions attainable for the defendant.
A Rosenblum Law criminal defense attorney can negotiate fair bail or bond terms. If bail is ordered, the attorney can assist with getting a bail bondsman and securing bail.
Finally, an attorney can provide guidance on compliance with bail conditions. This is important, because bail can be revoked if bail conditions are not met.
Bail Modification and Revocation
If an attorney was not hired until after the bail hearing, the attorney may be able to file a motion with the court to modify the bail to be more favorable to the defendant. A modification is most likely to be granted if the current bail terms are unattainable. An attorney may also be able to get travel restrictions lifted to meet pre-scheduled social or work obligations.
The court can also modify bail to be less favorable to the defendant. For example, if the defendant does not meet the terms of the bond or commits another crime while out on bail, the bail amount may be increased or further non-monetary bond conditions may be imposed.
Bail can also be revoked. The most common reason for bail to be revoked is for a defendant to fail to appear in court. Bail may also be revoked if the defendant commits another crime while out on bail. It is up to the judge if bail is to be modified or revoked in these circumstances.
FAQs
Bail is a cash payment or bond put up by the defendant. It is required because the courts assume that the defendant is more likely to return for their court date if the consequence for not appearing is forfeiting their bail.
The amount of bail is determined using bail schedules and the discretion of the judge. The judge looks at many factors to determine the bail amount, including the evidence against the defendant, bail schedules, and prior criminal history.
Bail can be denied if a defendant is considered a flight risk or if they pose a danger to the community. Bail can also be denied if it is for a crime committed while the defendant was on parole or probation, or while they were out on bail for another crime.
Your attorney can fight for you to receive a reduction of the bail amount, but if you still cannot afford bail, you will have to remain in jail until your case goes to trial or your attorney comes to a plea bargain with the prosecution.
A bail bondsman can take up to 10% of the bail amount as a service fee. This can be paid in cash, or it can be secured with collateral of equal value. The service fee and any collateral accepted is up to the bondman, but they are not allowed to charge more than 10% by New York law.
Once the service fee has been paid or secured with collateral, the bail bondsman will go to the jail and post bond for the defendant. The defendant does not get the service fee back even if they appear in court. However, collateral is returned to the surety.
The conditions of bail can vary but can include travel restrictions, mandatory check-ins, staying in a halfway house, or wearing an ankle monitor. If the conditions of bail are violated, bail can be modified or revoked.
Cash bail can be refunded after the case is over. In New York City, cash bail is returned within eight weeks after the case is completed. Elsewhere in New York, cash bail is returned by the court based on court policies. The court clerk can provide information about how to get bail refunded.
There is paperwork that must be processed before the defendant is released from jail. This paperwork can take anywhere from a half hour to several hours.
Yes, bail can be reduced or modified after it is set. An attorney can request another hearing in which they can argue for a lower bail amount or more favorable bail conditions.
Bail is money paid as surety that the defendant will return to court. A bond has the same purpose but often involves property instead of or in addition to money.
Contact Rosenblum Law Today
The New York bail process is complex and is best handled by experienced attorneys. Having a Rosenblum Law criminal defense attorney to represent you through the entire bail process is highly recommended. In particular, at the bail hearing, we will fight to get you released on your own recognizance or to see that the bail amount is set as low as possible. If you or a loved one has been arrested, contact us today.
Last updated: Sep 27, 2024
