The arrest of a friend or loved one often happens unexpectedly. The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set. This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.
First of all, the question may arise, “What is bail?” Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections. In most cases, that would be an amount of money designated by the judge in either cash or bond. The difference between these two methods of bail will be explained later.
It should be noted that in the case of many first-time offenders, no bail will be set at all. This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges. Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes. Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance. This is sometimes called “ROR.” In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender. The criteria that the judge will consider is set forth in the Criminal Procedure Law:
2. To the extent that the issuance of an order of recognizance or
bail and the terms thereof are matters of discretion rather than of law,
an application is determined on the basis of the following factors and
(a) With respect to any principal, the court must consider the kind
and degree of control or restriction that is necessary to secure his
court attendance when required. In determining that matter, the court
must, on the basis of available information, consider and take into
(i) The principal's character, reputation, habits and mental
(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in the
(iv) His criminal record if any; and
(v) His record of previous adjudication as a juvenile delinquent, as
retained pursuant to section 354.2 of the family court act, or, of
pending cases where fingerprints are retained pursuant to section 306.1
of such act, or a youthful offender, if any; and
(vi) His previous record if any in responding to court appearances
when required or with respect to flight to avoid criminal prosecution;
(vii) If he is a defendant, the weight of the evidence against him in
the pending criminal action and any other factor indicating probability
or improbability of conviction; or, in the case of an application for
bail or recognizance pending appeal, the merit or lack of merit of the
(viii) If he is a defendant, the sentence which may be or has been
imposed upon conviction.
Many of these factors are self-explanatory. If a person has a prior criminal history, or a record of not showing up to court, the judge will probably set an amount of bail that he or she feels is necessary to secure his or her attendance in court. However, if the charge is serious, then it is very important to try to retain an experienced New York City criminal lawyer before your friend or loved one sees the judge. The lawyer will be able to assist in gathering information and proof that the judge will consider in making the court’s bail decision. This material can include papers considering his or her employment, paystubs, proof of residence, and other material that will be helpful in convincing the court to either ROR the defendant or set an amount of bail that he or she can actually make.
Assuming that the judge sets bail, one needs to be informed as to the precise method specified by the court. For example, a judge may set bail in the amount of $100,000 bond over $50,000 cash. The best way to explain this is to start with the cash alternative. In this example, if a family member has $50,000 in cash, that can be posted to secure the defendant’s attendance, with no other steps being necessary. Bail can be paid either at the courthouse or the corrections facility where the defendant is being held. If the bail is going to be made at the court, it is probably best to speak with an attorney to get an idea of how much the bail may be so that you can come prepared with money necessary. On the other hand, if the defendant chooses to go with the $100,000 bond alternative, he or she must deal with a bail bondsperson. The bondsperson’s job is simply to gauge the amount of risk he or she is willing to take that the defendant will return to court when required. In exchange for taking on this risk, he or she takes a fee. Every situation is different, but a bondsperson will usually ask the friend or family member of the arrested person to pay a percentage of the total bond amount, and then provide some sort of security for the remainder. Again using the example of a $100,000 bond, the bondsman may ask for $10,000 cash, and the deed to a home or other form of collateral to secure the other $90,000. At the end of the case, the bondsperson will give you back the cash you posted, less a fee that he or she takes for assuming the risk.
Remember that in dealing with a bondsperson, they may have reporting requirements or “check ins” that will occur periodically to ensure that they are in touch with the defendant. If the defendant does not comply with the conditions of the bond, the bondsperson can go to the court and ask that the bond be revoked and that the defendant be taken into custody.
With that said, the best possible thing to do is to retain an attorney before the initial hearing because the attorney can do two things: (1) make a reasoned and cogent argument to the judge as to why no bail should be set (“ROR”) or that a lower amount of bail is necessary than what the Assistant District Attorney may ask for and (2) if bail is set, put you in touch with a respectable bail bondsperson and assist in the bail making process.
Should you need advice as to how any of this works, you should contact a New York City bail attorney.
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