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ARTICE 530--ORDERS OF RECOGNIZANCE OR BAIL WITH
RESPECT TO DEFENDANTS IN CRIMINAL ACTIONS
AND PROCEEDINGS--WHEN AND BY WHAT
COURTS AUTHORIZED
Section 530.10 Order of recognizance or bail; in general.
530.11 Procedures for family offense matters.
530.12 Protection for victims of family offenses.
530.13 Protection of victims of crimes, other than family
offenses.
530.14 Suspension and revocation of a license to carry, possess,
repair or dispose of a firearm or firearms pursuant to
section 400.00 of the penal law and ineligibility for
such a license; order to surrender firearms.
530.20 Order of recognizance or bail; by local criminal court
when action is pending therein.
530.30 Order of recognizance or bail; by superior court judge
when action is pending in local criminal court.
530.40 Order of recognizance or bail; by superior court when
action is pending therein.
530.45 Order of recognizance or bail; after conviction and
before sentence.
530.50 Order of recognizance or bail; during pendency of appeal.
530.60 Order of recognizance or bail; revocation thereof.
530.70 Order of recognizance or bail; bench warrant.
530.80 Order of recognizance or bail; surrender of defendant.
S 530.10 Order of recognizance or bail; in general.
Under circumstances prescribed in this article, a court, upon
application of a defendant charged with or convicted of an offense, is
required or authorized to order bail or recognizance for the release or
prospective release of such defendant during the pendency of either:
1. A criminal action based upon such charge; or
2. An appeal taken by the defendant from a judgment of conviction or
a sentence or from an order of an intermediate appellate court affirming
or modifying a judgment of conviction or a sentence.
S 530.11 Procedures for family offense matters.
1. Jurisdiction. The family court and the criminal courts shall have
concurrent jurisdiction over any proceeding concerning acts which would
constitute disorderly conduct, harassment in the first degree,
harassment in the second degree, aggravated harassment in the second
degree, stalking in the first degree, stalking in the second degree,
stalking in the third degree, stalking in the fourth degree, menacing in
the second degree, menacing in the third degree, reckless endangerment,
assault in the second degree, assault in the third degree or an
attempted assault between spouses or former spouses, or between parent
and child or between members of the same family or household except that
if the respondent would not be criminally responsible by reason of age
pursuant to section 30.00 of the penal law, then the family court shall
have exclusive jurisdiction over such proceeding. Notwithstanding a
complainant`s election to proceed in family court, the criminal court
shall not be divested of jurisdiction to hear a family offense
proceeding pursuant to this section. For purposes of this section,
"disorderly conduct" includes disorderly conduct not in a public place.
For purposes of this section, "members of the same family or household"
with respect to a proceeding in the criminal courts shall mean the
following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another; and
(d) persons who have a child in common, regardless whether such
persons have been married or have lived together at any time.
2. Information to petitioner or complainant. The chief administrator
of the courts shall designate the appropriate probation officers,
warrant officers, sheriffs, police officers, district attorneys or any
other law enforcement officials, to inform any petitioner or complainant
bringing a proceeding under this section before such proceeding is
commenced, of the procedures available for the institution of family
offense proceedings, including but not limited to the following:
(a) That there is concurrent jurisdiction with respect to family
offenses in both family court and the criminal courts;
(b) That a family court proceeding is a civil proceeding and is for
the purpose of attempting to stop the violence, end family disruption
and obtain protection. That referrals for counseling, or counseling
services, are available through probation for this purpose;
(c) That a proceeding in the criminal courts is for the purpose of
prosecution of the offender and can result in a criminal conviction of
the offender;
(d) That a proceeding or action subject to the provisions of this
section is initiated at the time of the filing of an accusatory
instrument or family court petition, not at the time of arrest, or
request for arrest, if any;
(f) That an arrest may precede the commencement of a family court or a
criminal court proceeding, but an arrest is not a requirement for
commencing either proceeding.
(h) At such time as the complainant first appears before the court on
a complaint or information, the court shall advise the complainant that
the complainant may: continue with the proceeding in criminal court; or
have the allegations contained therein heard in a family court
proceeding; or proceed concurrently in both criminal and family court.
Notwithstanding a complainant`s election to proceed in family court, the
criminal court shall not be divested of jurisdiction to hear a family
offense proceeding pursuant to this section;
(i) Nothing herein shall be deemed to limit or restrict complainant`s
rights to proceed directly and without court referral in either a
criminal or family court, or both, as provided for in section one
hundred fifteen of the family court act and section 100.07 of this
chapter;
2-a. Upon the filing of an accusatory instrument charging a crime or
violation described in subdivision one of this section between members
of the same family or household, as such terms are defined in this
section, or as soon as the complainant first appears before the court,
whichever is sooner, the court shall advise the complainant of the right
to proceed in both the criminal and family courts, pursuant to section
100.07 of this chapter.
3. Official responsibility. No official or other person designated
pursuant to subdivision two of this section shall discourage or prevent
any person who wishes to file a petition or sign a complaint from having
access to any court for that purpose.
4. When a person is arrested for an alleged family offense or an
alleged violation of an order of protection or temporary order of
protection or arrested pursuant to a warrant issued by the supreme or
family court, and the supreme or family court, as applicable, is not in
session, such person shall be brought before a local criminal court in
the county of arrest or in the county in which such warrant is
returnable pursuant to article one hundred twenty of this chapter. Such
local criminal court may issue any order authorized under subdivision
eleven of section 530.12 of this article, section one hundred
fifty-four-d or one hundred fifty-five of the family court act or
subdivision three-b of section two hundred forty or subdivision two-a of
section two hundred fifty-two of the domestic relations law, in addition
to discharging other arraignment responsibilities as set forth in this
chapter. In making such order, the local criminal court shall consider
the bail recommendation, if any, made by the supreme or family court as
indicated on the warrant or certificate of warrant. Unless the
petitioner or complainant requests otherwise, the court, in addition to
scheduling further criminal proceedings, if any, regarding such alleged
family offense or violation allegation, shall make such matter
returnable in the supreme or family court, as applicable, on the next
day such court is in session.
5. Filing and enforcement of out-of-state orders of protection. A
valid order of protection or temporary order of protection issued by a
court of competent jurisdiction in another state, territorial or tribal
jurisdiction shall be accorded full faith and credit and enforced as if
it were issued by a court within the state for as long as the order
remains in effect in the issuing jurisdiction in accordance with
sections two thousand two hundred sixty-five and two thousand two
hundred sixty-six of title eighteen of the United States Code.
(a) An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(i) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(ii) the person against whom the order was issued had reasonable
notice and an opportunity to be heard prior to issuance of the order;
provided, however, that if the order was a temporary order of protection
issued in the absence of such person, that notice had been given and
that an opportunity to be heard had been provided within a reasonable
period of time after the issuance of the order; and
(iii) in the case of orders of protection or temporary orders of
protection issued against both a petitioner, plaintiff or complainant
and respondent or defendant, the order or portion thereof sought to be
enforced was supported by: (A) a pleading requesting such order,
including, but not limited to, a petition, cross-petition or
counterclaim; and (B) a judicial finding that the requesting party is
entitled to the issuance of the order which may result from a judicial
finding of fact, judicial acceptance of an admission by the party
against whom the order was issued or judicial finding that the party
against whom the order was issued had given knowing, intelligent and
voluntary consent to its issuance.
(b) Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
6. Notice. Every police officer, peace officer or district attorney
investigating a family offense under this article shall advise the
victim of the availability of a shelter or other services in the
community, and shall immediately give the victim written notice of the
legal rights and remedies available to a victim of a family offense
under the relevant provisions of the criminal procedure law, the family
court act and the domestic relations law. Such notice shall be prepared
in Spanish and English and if necessary, shall be delivered orally, and
shall include but not be limited to the following statement:
"If you are the victim of domestic violence, you may request that the
officer assist in providing for your safety and that of your children,
including providing information on how to obtain a temporary order of
protection. You may also request that the officer assist you in
obtaining your essential personal effects and locating and taking you,
or assist in making arrangements to take you, and your children to a
safe place within such officer`s jurisdiction, including but not limited
to a domestic violence program, a family member`s or a friend`s
residence, or a similar place of safety. When the officer`s jurisdiction
is more than a single county, you may ask the officer to take you or
make arrangements to take you and your children to a place of safety in
the county where the incident occurred. If you or your children are in
need of medical treatment, you have the right to request that the
officer assist you in obtaining such medical treatment. You may request
a copy of any incident reports at no cost from the law enforcement
agency. You have the right to seek legal counsel of your own choosing
and if you proceed in family court and if it is determined that you
cannot afford an attorney, one must be appointed to represent you
without cost to you.
You may ask the district attorney or a law enforcement officer to file
a criminal complaint. You also have the right to file a petition in the
family court when a family offense has been committed against you. You
have the right to have your petition and request for an order of
protection filed on the same day you appear in court, and such request
must be heard that same day or the next day court is in session. Either
court may issue an order of protection from conduct constituting a
family offense which could include, among other provisions, an order for
the respondent or defendant to stay away from you and your children. The
family court may also order the payment of temporary child support and
award temporary custody of your children. If the family court is not in
session, you may seek immediate assistance from the criminal court in
obtaining an order of protection.
The forms you need to obtain an order of protection are available from
the family court and the local criminal court (the addresses and
telephone numbers shall be listed). The resources available in this
community for information relating to domestic violence, treatment of
injuries, and places of safety and shelters can be accessed by calling
the following 800 numbers (the statewide English and Spanish language
800 numbers shall be listed and space shall be provided for local
domestic violence hotline telephone numbers).
Filing a criminal complaint or a family court petition containing
allegations that are knowingly false is a crime."
The division of criminal justice services in consultation with the
state office for the prevention of domestic violence shall prepare the
form of such written notice consistent with provisions of this section
and distribute copies thereof to the appropriate law enforcement
officials pursuant to subdivision nine of section eight hundred
forty-one of the executive law.
Additionally, copies of such notice shall be provided to the chief
administrator of the courts to be distributed to victims of family
offenses through the criminal court at such time as such persons first
come before the court and to the state department of health for
distribution to all hospitals defined under article twenty-eight of the
public health law. No cause of action for damages shall arise in favor
of any person by reason of any failure to comply with the provisions of
this subdivision except upon a showing of gross negligence or willful
misconduct.
7. Rules of court regarding concurrent jurisdiction. The chief
administrator of the courts, pursuant to paragraph (e) of subdivision
two of section two hundred twelve of the judiciary law, shall promulgate
rules to facilitate record sharing and other communication between the
criminal and family courts, subject to applicable provisions of this
chapter and the family court act pertaining to the confidentiality,
expungement and sealing of records, when such courts exercise concurrent
jurisdiction over family offense proceedings.
S 530.12 Protection for victims of family offenses.
1. When a criminal action is pending involving a complaint charging
any crime or violation between spouses, former spouses, parent and
child, or between members of the same family or household, as members of
the same family or household are defined in subdivision one of section
530.11 of this article, the court, in addition to any other powers
conferred upon it by this chapter may issue a temporary order of
protection as a condition of any order of recognizance or bail or an
adjournment in contemplation of dismissal. In addition to any other
conditions, such an order may require the defendant:
(a) to stay away from the home, school, business or place of
employment of the family or household member or of any designated
witness, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this paragraph, provided further,
however, that failure to make such a determination shall not affect the
validity of such temporary order of protection. In making such
determination, the court shall consider, but shall not be limited to
consideration of, whether the temporary order of protection is likely to
achieve its purpose in the absence of such a condition, conduct subject
to prior orders of protection, prior incidents of abuse, past or present
injury, threats, drug or alcohol abuse, and access to weapons;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of this article, or any criminal
offense against the child or against the family or household member or
against any person to whom custody of the child is awarded, or from
harassing, intimidating or threatening such persons;
(d) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety and welfare of a child, family
or household member`s life or health;
(e) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in this proceeding or in any other proceeding or action under this
chapter, the family court act or the domestic relations law.
2. Notwithstanding any other provision of law, a temporary order of
protection issued or continued by a family court pursuant to section
eight hundred thirteen of the family court act shall continue in effect,
absent action by the appropriate criminal court pursuant to subdivision
three of this section, until the defendant is arraigned upon an
accusatory instrument filed pursuant to section eight hundred thirteen
of the family court act in such criminal court.
3. The court may issue a temporary order of protection ex parte upon
the filing of an accusatory instrument and for good cause shown. When a
family court order of protection is modified, the criminal court shall
forward a copy of such modified order to the family court issuing the
original order of protection; provided, however, that where a copy of
the modified order is transmitted to the family court by facsimile or
other electronic means, the original copy of such modified order and
accompanying affidavit shall be forwarded immediately thereafter.
3-a. Emergency powers when family court not in session; issuance of
temporary orders of protection. Upon the request of the petitioner, a
local criminal court may on an ex parte basis issue a temporary order of
protection pending a hearing in family court, provided that a sworn
affidavit, verified in accordance with subdivision one of section 100.30
of this chapter, is submitted: (i) alleging that the family court is not
in session; (ii) alleging that a family offense, as defined in
subdivision one of section eight hundred twelve of the family court act
and subdivision one of section 530.11 of this article, has been
committed; (iii) alleging that a family offense petition has been filed
or will be filed in family court on the next day the court is in
session; and (iv) showing good cause. Upon appearance in a local
criminal court, the petitioner shall be advised that he or she may
continue with the proceeding either in family court or upon the filing
of a local criminal court accusatory instrument in criminal court or
both. Upon issuance of a temporary order of protection where petitioner
requests that it be returnable in family court, the local criminal court
shall transfer the matter forthwith to the family court and shall make
the matter returnable in family court on the next day the family court
is in session, or as soon thereafter as practicable, but in no event
more than four calendar days after issuance of the order. The local
criminal court, upon issuing a temporary order of protection returnable
in family court pursuant to this subdivision, shall immediately forward,
in a manner designed to insure arrival before the return date set in the
order, a copy of the temporary order of protection and sworn affidavit
to the family court and shall provide a copy of such temporary order of
protection to the petitioner; provided, however, that where a copy of
the temporary order of protection and affidavit are transmitted to the
family court by facsimile or other electronic means, the original order
and affidavit shall be forwarded to the family court immediately
thereafter. Any temporary order of protection issued pursuant to this
subdivision shall be issued to the respondent, and copies shall be filed
as required in subdivisions six and eight of this section for orders of
protection issued pursuant to this section. Any temporary order of
protection issued pursuant to this subdivision shall plainly state the
date that such order expires which, in the case of an order returnable
in family court, shall be not more than four calendar days after its
issuance, unless sooner vacated or modified by the family court. A
petitioner requesting a temporary order of protection returnable in
family court pursuant to this subdivision in a case in which a family
court petition has not been filed shall be informed that such temporary
order of protection shall expire as provided for herein, unless the
petitioner files a petition pursuant to subdivision one of section eight
hundred twenty-one of the family court act on or before the return date
in family court and the family court issues a temporary order of
protection or order of protection as authorized under article eight of
the family court act. Nothing in this subdivision shall limit or
restrict the petitioner`s right to proceed directly and without court
referral in either a criminal or family court, or both, as provided for
in section one hundred fifteen of the family court act and section
100.07 of this chapter.
3-b. Emergency powers when family court not in session; modifications
of orders of protection or temporary orders of protection. Upon the
request of the petitioner, a local criminal court may on an ex parte
basis modify a temporary order of protection or order of protection
which has been issued under article four, five, six or eight of the
family court act pending a hearing in family court, provided that a
sworn affidavit verified in accordance with subdivision one of section
100.30 of this chapter is submitted: (i) alleging that the family court
is not in session and (ii) showing good cause, including a showing that
the existing order is insufficient for the purposes of protection of the
petitioner, the petitioner`s child or children or other members of the
petitioner`s family or household. The local criminal court shall make
the matter regarding the modification of the order returnable in family
court on the next day the family court is in session, or as soon
thereafter as practicable, but in no event more than four calendar days
after issuance of the modified order. The court shall immediately
forward a copy of the modified order, if any, and sworn affidavit to the
family court and shall provide a copy of such modified order, if any,
and affidavit to the petitioner; provided, however, that where copies of
such modified order and affidavit are transmitted to the family court by
facsimile or other electronic means, the original copies of such
modified order and affidavit shall be forwarded to the family court
immediately thereafter. Any modified temporary order of protection or
order of protection issued pursuant to this subdivision shall be issued
to the respondent and copies shall be filed as required in subdivisions
six and eight of this section for orders of protection issued pursuant
to this section.
4. The court may issue or extend a temporary order of protection ex
parte or on notice simultaneously with the issuance of a warrant for the
arrest of defendant. Such temporary order of protection may continue in
effect until the day the defendant subsequently appears in court
pursuant to such warrant or voluntarily or otherwise.
5. * Upon conviction of any crime or violation between spouses, parent
and child, or between members of the same family or household, the court
may in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by
the court and, in the case of a felony conviction, shall not exceed the
greater of: (i) five years from the date of such conviction, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate or the term of a determinate sentence of imprisonment
actually imposed; or in the case of a conviction for a class A
misdemeanor, shall not exceed three years from the date of such
conviction; or in the case of a conviction for any other offense, shall
not exceed one year from the date of conviction. For purposes of
determining the duration of an order of protection entered pursuant to
this subdivision, a conviction shall be deemed to include a conviction
that has been replaced by a youthful offender adjudication. In addition
to any other conditions, such an order may require the defendant:
* NB Effective until September 30, 2005
* Upon conviction of any crime or violation between spouses, parent
and child, or between members of the same family or household, the court
may in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by
the court and, in the case of a felony conviction, shall not exceed the
greater of: (i) five years from the date of such conviction, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the case
of a conviction for a class A misdemeanor, shall not exceed three years
from the date of such conviction; or in the case of a conviction for any
other offense, shall not exceed one year from the date of conviction.
For purposes of determining the duration of an order of protection
entered pursuant to this subdivision, a conviction shall be deemed to
include a conviction that has been replaced by a youthful offender
adjudication. In addition to any other conditions, such an order may
require the defendant:
* NB Effective September 30, 2005
(a) to stay away from the home, school, business or place of
employment of the family or household member, the other spouse or the
child, or of any witness designated by the court, provided that the
court shall make a determination, and shall state such determination in
a written decision or on the record, whether to impose a condition
pursuant to this paragraph, provided further, however, that failure to
make such a determination shall not affect the validity of such order of
protection. In making such determination, the court shall consider, but
shall not be limited to consideration of, whether the order of
protection is likely to achieve its purpose in the absence of such a
condition, conduct subject to prior orders of protection, prior
incidents of abuse, extent of past or present injury, threats, drug or
alcohol abuse, and access to weapons;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of this article, or any criminal
offense against the child or against the family or household member or
against any person to whom custody of the child is awarded, or from
harassing, intimidating or threatening such persons; or
(d) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety and welfare of a child, family
or household member`s life or health;
(e) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in this proceeding or in any other proceeding or action under this
chapter, the family court act or the domestic relations law.
6. An order of protection or a temporary order of protection issued
pursuant to subdivision one, two, three, four or five of this section
shall bear in a conspicuous manner the term "order of protection" or
"temporary order of protection" as the case may be and a copy shall be
filed by the clerk of the court with the sheriff`s office in the county
in which the complainant resides, or, if the complainant resides within
a city, with the police department of such city. The absence of such
language shall not affect the validity of such order. A copy of such
order of protection or temporary order of protection may from time to
time be filed by the clerk of the court with any other police department
or sheriff`s office having jurisdiction of the residence, work place,
and school of anyone intended to be protected by such order. A copy of
the order may also be filed by the complainant at the appropriate police
department or sheriff`s office having jurisdiction. Any subsequent
amendment or revocation of such order shall be filed in the same manner
as herein provided.
Such order of protection shall plainly state the date that such order
expires.
6-a. The court shall inquire as to the existence of any other orders
of protection between the defendant and the person or persons for whom
the order of protection is sought.
7. A family offense subject to the provisions of this section which
occurs subsequent to the issuance of an order of protection under this
chapter shall be deemed a new offense for which the complainant may seek
to file a new accusatory instrument and may file a family court petition
under article eight of the family court act as provided for in section
100.07 of this chapter.
8. In any proceeding in which an order of protection or temporary
order of protection or a warrant has been issued under this section, the
clerk of the court shall issue to the complainant and defendant and
defense counsel and to any other person affected by the order a copy of
the order of protection or temporary order of protection. The
presentation of a copy of such order or a warrant to any peace officer
acting pursuant to his special duties or police officer shall constitute
authority for him to arrest a person who has violated the terms of such
order and bring such person before the court and, otherwise, so far as
lies within his power, to aid in securing the protection such order was
intended to afford.
9. If no warrant, order or temporary order of protection has been
issued by the court, and an act alleged to be a family offense as
defined in section 530.11 of this chapter is the basis of the arrest,
the magistrate shall permit the complainant to file a petition,
information or accusatory instrument and for reasonable cause shown,
shall thereupon hold such respondent or defendant, admit to, fix or
accept bail, or parole him for hearing before the family court or
appropriate criminal court as the complainant shall choose in accordance
with the provisions of section 530.11 of this chapter.
10. Punishment for contempt based on a violation of an order of
protection or temporary order of protection shall not affect the
original criminal action, nor reduce or diminish a sentence upon
conviction for the original crime or violation alleged therein or for a
lesser included offense thereof.
11. If a defendant is brought before the court for failure to obey
any lawful order issued under this section, or an order of protection
issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, and if, after hearing, the court is
satisfied by competent proof that the defendant has willfully failed to
obey any such order, the court may:
(a) revoke an order of recognizance or revoke an order of bail or
order forfeiture of such bail and commit the defendant to custody; or
(b) restore the case to the calendar when there has been an
adjournment in contemplation of dismissal and commit the defendant to
custody; or
(c) revoke a conditional discharge in accordance with section 410.70
of this chapter and impose probation supervision or impose a sentence of
imprisonment in accordance with the penal law based on the original
conviction; or
(d) revoke probation in accordance with section 410.70 of this chapter
and impose a sentence of imprisonment in accordance with the penal law
based on the original conviction. In addition, if the act which
constitutes the violation of the order of protection or temporary order
of protection is a crime or a violation the defendant may be charged
with and tried for that crime or violation.
12. The chief administrator of the courts shall promulgate appropriate
uniform temporary orders of protection and orders of protection forms to
be used throughout the state. Such forms shall be promulgated and
developed in a manner to ensure the compatability of such forms with the
statewide computerized registry established pursuant to section two
hundred twenty-one-a of the executive law.
13. Notwithstanding the foregoing provisions, an order of protection,
or temporary order of protection when applicable, may be entered against
a former spouse and persons who have a child in common, regardless
whether such persons have been married or have lived together at any
time.
14. The people shall make reasonable efforts to notify the complainant
alleging a crime constituting a family offense when the people have
decided to decline prosecution of such crime, to dismiss the criminal
charges against the defendant or to enter into a plea agreement. The
people shall advise the complainant of the right to file a petition in
the family court pursuant to section 100.07 of this chapter and section
one hundred fifteen of the family court act.
In any case where allegations of criminal conduct are transferred from
the family court to the criminal court pursuant to paragraph (ii) of
subdivision (b) of section eight hundred forty-six of the family court
act, the people shall advise the family court making the transfer of any
decision to file an accusatory instrument against the family court
respondent and shall notify such court of the disposition of such
instrument and the sentence, if any, imposed upon such respondent.
Release of a defendant from custody shall not be delayed because of
the requirements of this subdivision.
15. Any motion to vacate or modify an order of protection or temporary
order of protection shall be on notice to the non-moving party, except
as provided in subdivision three-b of this section.
S 530.13 Protection of victims of crimes, other than family offenses.
1. When any criminal action is pending, and the court has not issued a
temporary order of protection pursuant to section 530.12 of this
article, the court, in addition to the other powers conferred upon it by
this chapter, may for good cause shown issue a temporary order of
protection as a condition of a pre-trial release, or as a condition of
release on bail or an adjournment in contemplation of dismissal. In
addition to any other conditions, such an order may require that the
defendant:
(a) stay away from the home, school, business or place of employment
of the victims of, or designated witnesses to, the alleged offense;
(b) refrain from harassing, intimidating, threatening or otherwise
interfering with the victims of the alleged offense and such members of
the family or household of such victims or designated witnesses as shall
be specifically named by the court in such order.
2. The court may issue a temporary order of protection under this
section ex parte upon the filing of an accusatory instrument and for
good cause shown.
3. The court may issue or extend a temporary order of protection under
this section ex parte simultaneously with the issuance of a warrant for
the arrest of the defendant. Such temporary order of protection may
continue in effect until the day the defendant subsequently appears in
court pursuant to such warrant or voluntarily or otherwise.
4. * Upon conviction of any offense, where the court has not issued an
order of protection pursuant to section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by
the court and, in the case of a felony conviction, shall not exceed the
greater of: (i) five years from the date of such conviction, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate or the term of a determinate sentence of imprisonment
actually imposed; or in the case of a conviction for a class A
misdemeanor, shall not exceed three years from the date of such
conviction; or in the case of a conviction for any other offense, shall
not exceed one year from the date of conviction. For purposes of
determining the duration of an order of protection entered pursuant to
this subdivision, a conviction shall be deemed to include a conviction
that has been replaced by a youthful offender adjudication. In addition
to any other conditions such an order may require that the defendant:
* NB Effective until September 30, 2005
* Upon conviction of any offense, where the court has not issued an
order of protection pursuant to section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by
the court and, in the case of a felony conviction, shall not exceed the
greater of: (i) five years from the date of such conviction, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the case
of a conviction for a class A misdemeanor, shall not exceed three years
from the date of such conviction; or in the case of a conviction for any
other offense, shall not exceed one year from the date of conviction.
For purposes of determining the duration of an order of protection
entered pursuant to this subdivision, a conviction shall be deemed to
include a conviction that has been replaced by a youthful offender
adjudication. In addition to any other conditions such an order may
require that the defendant:
* NB Effective September 30, 2005
(a) stay away from the home, school, business or place of employment
of the victim or victims, or of any witness designated by the court, of
such offense;
(b) refrain from harassing, intimidating, threatening or otherwise
interfering with the victim or victims of the offense and such members
of the family or household of such victim or victims as shall be
specifically named by the court in such order.
5. The court shall inquire as to the existence of any other orders of
protection between the defendant and the person or persons for whom the
order of protection is sought. An order of protection issued under this
section shall plainly state the date that such order expires. Orders of
protection issued to protect victims of domestic violence, as defined in
section four hundred fifty-nine-a of the social services law, shall be
on uniform statewide forms that shall be promulgated by the chief
administrator of the courts in a manner to ensure the compatibility of
such forms with the statewide registry of orders of protection and
warrants established pursuant to section two hundred twenty-one-a of the
executive law. A copy of an order of protection or a temporary order of
protection issued pursuant to subdivision one, two, three, or four of
this section shall be filed by the clerk of the court with the sheriff`s
office in the county in which such victim or victims reside, or, if the
victim or victims reside within a city, with the police department of
such city. A copy of such order of protection or temporary order of
protection may from time to time be filed by the clerk of the court with
any other police department or sheriff`s office having jurisdiction of
the residence, work place, and school of anyone intended to be protected
by such order. A copy of the order may also be filed by the victim or
victims at the appropriate police department or sheriff`s office having
jurisdiction. Any subsequent amendment or revocation of such order shall
be filed in the same manner as herein provided.
6. In any proceeding in which an order of protection or temporary
order of protection or a warrant has been issued under this section, the
clerk of the court shall issue to the victim and the defendant and to
any other person affected by the order, a copy of the order of
protection or temporary order of protection. The presentation of a copy
of such order or a warrant to any police officer or peace officer acting
pursuant to his special duties shall constitute authority for him to
arrest a person who has violated the terms of such order and bring such
person before the court and, otherwise, so far as lies within his power,
to aid in securing the protection such order was intended to afford.
7. Punishment for contempt based upon a violation of an order or
protection or temporary order of protection issued under this section
shall not affect a pending criminal action, nor reduce or diminish a
sentence upon conviction for any other crimes or offenses.
8. If a defendant is brought before the court for failure to obey any
lawful order issued under this section and if, after hearing, the court
is satisfied by competent proof that the defendant has willfully failed
to obey any such order, the court may:
(a) revoke an order of recognizance or bail and commit the defendant
to custody; or
(b) restore the case to the calendar when there has been an
adjournment in contemplation of dismissal and commit the defendant to
custody or impose or increase bail pending a trial of the original crime
or violation; or
(c) revoke a conditional discharge in accordance with section 410.70
of this chapter and impose probation supervision or impose a sentence of
imprisonment in accordance with the penal law based on the original
conviction; or
(d) revoke probation in accordance with section 410.70 of this chapter
and impose a sentence of imprisonment in accordance with the penal law
based on the original conviction. In addition, if the act which
constitutes the violation of the order of protection or temporary order
of protection is a crime or a violation the defendant may be charged
with and tried for that crime or violation.
9. The chief administrator of the courts shall promulgate appropriate
uniform temporary order of protection and order of protection forms to
be used throughout the state.
S 530.14 Suspension and revocation of a license to carry, possess,
repair or dispose of a firearm or firearms pursuant to
section 400.00 of the penal law and ineligibility for such
a license; order to surrender firearms.
1. Mandatory and permissive suspension of firearms license and
ineligibility for such a license upon issuance of temporary order of
protection. Whenever a temporary order of protection is issued pursuant
to subdivision one of section 530.12 or subdivision one of section
530.13 of this article:
(a) the court shall suspend any such existing license possessed by the
defendant, order the defendant ineligible for such a license and order
the immediate surrender of any or all firearms owned or possessed where
the court receives information that gives the court good cause to
believe that (i) the defendant has a prior conviction of any violent
felony offense as defined in section 70.02 of the penal law; (ii) the
defendant has previously been found to have willfully failed to obey a
prior order of protection and such willful failure involved (A) the
infliction of serious physical injury, as defined in subdivision ten of
section 10.00 of the penal law, (B) the use or threatened use of a
deadly weapon or dangerous instrument as those terms are defined in
subdivisions twelve and thirteen of section 10.00 of the penal law, or
(C) behavior constituting any violent felony offense as defined in
section 70.02 of the penal law; or (iii) the defendant has a prior
conviction for stalking in the first degree as defined in section 120.60
of the penal law, stalking in the second degree as defined in section
120.55 of the penal law, stalking in the third degree as defined in
section 120.50 of the penal law or stalking in the fourth degree as
defined in section 120.45 of such law; and
(b) the court may where the court finds a substantial risk that the
defendant may use or threaten to use a firearm unlawfully against the
person or persons for whose protection the temporary order of protection
is issued, suspend any such existing license possessed by the defendant,
order the defendant ineligible for such a license and order the
immediate surrender of any or all firearms owned or possessed.
2. Mandatory and permissive revocation or suspension of firearms
license and ineligibility for such a license upon issuance of an order
of protection. Whenever an order of protection is issued pursuant to
subdivision five of section 530.12 or subdivision four of section 530.13
of this article:
(a) the court shall revoke any such existing license possessed by the
defendant, order the defendant ineligible for such a license and order
the immediate surrender of any or all firearms owned or possessed where
such action is required by section 400.00 of the penal law; and
(b) the court may where the court finds a substantial risk that the
defendant may use or threaten to use a firearm unlawfully against the
person or persons for whose protection the order of protection is
issued, (i) revoke any such existing license possessed by the defendant,
order the defendant ineligible for such a license and order the
immediate surrender of any or all firearms owned or possessed or (ii)
suspend or continue to suspend any such existing license possessed by
the defendant, order the defendant ineligible for such a license and
order the immediate surrender of any or all firearms owned or possessed.
3. Mandatory and permissive revocation or suspension of firearms
license and ineligibility for such a license upon a finding of a willful
failure to obey an order of protection. Whenever a defendant has been
found pursuant to subdivision eleven of section 530.12 or subdivision
eight of section 530.13 of this article to have willfully failed to obey
an order of protection issued by a court of competent jurisdiction in
this state or another state, territorial or tribal jurisdiction, in
addition to any other remedies available pursuant to subdivision eleven
of section 530.12 or subdivision eight of section 530.13 of this
article:
(a) the court shall revoke any such existing license possessed by the
defendant, order the defendant ineligible for such a license and order
the immediate surrender of any or all firearms owned or possessed where
the willful failure to obey such order involved (i) the infliction of
serious physical injury, as defined in subdivision ten of section 10.00
of the penal law, (ii) the use or threatened use of a deadly weapon or
dangerous instrument as those terms are defined in subdivisions twelve
and thirteen of section 10.00 of the penal law, (iii) behavior
constituting any violent felony offense as defined in section 70.02 of
the penal law; or (iv) behavior constituting stalking in the first
degree as defined in section 120.60 of the penal law, stalking in the
second degree as defined in section 120.55 of the penal law, stalking in
the third degree as defined in section 120.50 of the penal law or
stalking in the fourth degree as defined in section 120.45 of such law;
and
(b) the court may where the court finds a substantial risk that the
defendant may use or threaten to use a firearm unlawfully against the
person or persons for whose protection the order of protection was
issued, (i) revoke any such existing license possessed by the defendant,
order the defendant ineligible for such a license and order the
immediate surrender of any or all firearms owned or possessed or (ii)
suspend any such existing license possessed by the defendant, order the
defendant ineligible for such a license and order the immediate
surrender of any or all firearms owned or possessed.
4. Suspension. Any suspension order issued pursuant to this section
shall remain in effect for the duration of the temporary order of
protection or order of protection, unless modified or vacated by the
court.
5. Surrender. (a) Where an order to surrender one or more firearms has
been issued, the temporary order of protection or order of protection
shall specify the place where such firearms shall be surrendered, shall
specify a date and time by which the surrender shall be completed and,
to the extent possible, shall describe such firearms to be surrendered,
and shall direct the authority receiving such surrendered firearms to
immediately notify the court of such surrender.
(b) The prompt surrender of one or more firearms pursuant to a court
order issued pursuant to this section shall be considered a voluntary
surrender for purposes of subparagraph (f) of paragraph one of
subdivision a of section 265.20 of the penal law. The disposition of any
such firearms shall be in accordance with the provisions of subdivision
six of section 400.05 of the penal law.
(c) The provisions of this section shall not be deemed to limit,
restrict or otherwise impair the authority of the court to order and
direct the surrender of any or all pistols, revolvers, rifles, shotguns
or other firearms owned or possessed by a defendant pursuant to sections
530.12 or 530.13 of this article.
6. Notice. (a) Where an order of revocation, suspension or
ineligibility has been issued pursuant to this section, any temporary
order of protection or order of protection issued shall state that such
firearm license has been suspended or revoked or that the defendant is
ineligible for such license, as the case may be.
(b) The court revoking or suspending the license, ordering the
defendant ineligible for such a license, or ordering the surrender of
any firearm shall immediately notify the duly constituted police
authorities of the locality concerning such action and, in the case of
orders of protection and temporary orders of protection issued pursuant
to section 530.12 of this article, shall immediately notify the
statewide registry of orders of protection.
(c) The court revoking or suspending the license or ordering the
defendant ineligible for such a license shall give written notice
thereof without unnecessary delay to the division of state police at its
office in the city of Albany.
(d) Where an order of revocation, suspension, ineligibility or
surrender is modified or vacated, the court shall immediately notify the
statewide registry of orders of protection and the duly constituted
police authorities of the locality concerning such action and shall give
written notice thereof without unnecessary delay to the division of
state police at its office in the city of Albany.
7. Hearing. The defendant shall have the right to a hearing before the
court regarding any revocation, suspension, ineligibility or surrender
order issued pursuant to this section, provided that nothing in this
subdivision shall preclude the court from issuing any such order prior
to a hearing. Where the court has issued such an order prior to a
hearing, it shall commence such hearing within fourteen days of the date
such order was issued.
8. Nothing in this section shall delay or otherwise interfere with the
issuance of a temporary order of protection or the timely arraignment of
a defendant in custody.
S 530.20 Order of recognizance or bail; by local criminal court when
action is pending therein.
When a criminal action is pending in a local criminal court, such
court, upon application of a defendant, must or may order recognizance
or bail as follows:
1. When the defendant is charged, by information, simplified
information, prosecutor`s information or misdemeanor complaint, with an
offense or offenses of less than felony grade only, the court must order
recognizance or bail.
2. When the defendant is charged, by felony complaint, with a felony,
the court may, in its discretion, order recognizance or bail except as
otherwise provided in this subdivision:
(a) A city court, a town court or a village court may not order
recognizance or bail when (i) the defendant is charged with a class A
felony, or (ii) it appears that the defendant has two previous felony
convictions;
(b) No local criminal court may order recognizance or bail with
respect to a defendant charged with a felony unless and until:
(i) The district attorney has been heard in the matter or, after
knowledge or notice of the application and reasonable opportunity to be
heard, has failed to appear at the proceeding or has otherwise waived
his right to do so; and
(ii) The court has been furnished with a report of the division of
criminal justice services concerning the defendant`s criminal record if
any or with a police department report with respect to the defendant`s
prior arrest record. If neither report is available, the court, with
the consent of the district attorney, may dispense with this
requirement; provided, however, that in an emergency, including but not
limited to a substantial impairment in the ability of such division or
police department to timely furnish such report, such consent shall not
be required if, for reasons stated on the record, the court deems it
unnecessary. When the court has been furnished with any such report or
record, it shall furnish a copy thereof to counsel for the defendant or,
if the defendant is not represented by counsel, to the defendant.
S 530.30 Order of recognizance or bail; by superior court judge when
action is pending in local criminal court.
1. When a criminal action is pending in a local criminal court, other
than one consisting of a superior court judge sitting as such, a judge
of a superior court holding a term thereof in the county, upon
application of a defendant, may order recognizance or bail when such
local criminal court:
(a) Lacks authority to issue such an order, pursuant to paragraph (a)
of subdivision two of section 530.20; or
(b) Has denied an application for recognizance or bail; or
(c) Has fixed bail which is excessive. In such case, such superior
court judge may vacate the order of such local criminal court and
release the defendant on his own recognizance or fix bail in a lesser
amount or in a less burdensome form.
2. Notwithstanding the provisions of subdivision one, when the
defendant is charged with a felony in a local criminal court, a superior
court judge may not order recognizance or bail unless and until the
district attorney has had an opportunity to be heard in the matter and
such judge has been furnished with a report as described in subparagraph
(ii) of paragraph (b) of subdivision two of section 530.20.
3. Not more than one application may be made pursuant to this
section.
S 530.40 Order of recognizance 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 order recognizance or bail.
2. When the defendant is charged with a felony, the court may, in its
discretion, order recognizance or 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 or 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. Notwithstanding the provisions of subdivision two, a superior court
may not order recognizance or bail, or permit a defendant to remain at
liberty pursuant to an existing order, after he has been convicted of
either: (a) a class A felony or (b) any class B or class C felony
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.
4. Notwithstanding the provisions of subdivision two, a superior court
may not order recognizance or 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 has been furnished with a report
as described in subparagraph (ii) of paragraph (b) of subdivision two of
section 530.20.
S 530.45 Order of recognizance or bail; after conviction and before
sentence.
1. When the defendant is at liberty in the course of a criminal action
as a result of a prior order of recognizance or bail and the court
revokes such order and then either fixes no bail or fixes bail in a
greater amount or in a more burdensome form than was previously fixed
and remands or commits defendant to the custody of the sheriff, a judge
designated in subdivision two, upon application of the defendant
following conviction of an offense other than a class A felony or a
class B or class C felony offense 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, and before sentencing, may issue a securing order and either
release defendant on his own recognizance, or fix bail, or fix bail in a
lesser amount or in a less burdensome form than fixed by the court in
which the conviction was entered.
2. An order as prescribed in subdivision one may be issued by the
following judges in the indicated situations:
(a) If the criminal action was pending in supreme court or county
court, such order may be issued by a justice of the appellate division
of the department in which the conviction was entered.
(b) If the criminal action was pending in a local criminal court, such
order may be issued by a judge of a superior court holding a term
thereof in the county in which the conviction was entered.
3. An application for an order specified in this section must be made
upon reasonable notice to the people, and the people must be accorded
adequate opportunity to appear in opposition thereto. Not more than one
application may be made pursuant to this section. Defendant must allege
in his application that he intends to take an appeal to an intermediate
appellate court immediately after sentence is pronounced.
4. Notwithstanding the provisions of subdivision one, if within thirty
days after sentence the defendant has not taken an appeal to an
intermediate appellate court from the judgment or sentence, the
operation of such order terminates and the defendant must surrender
himself to the criminal court in which the judgment was entered in order
that execution of the judgment be commenced.
5. Notwithstanding the provisions of subdivision one, if within one
hundred twenty days after the filing of the notice of appeal such appeal
has not been brought to argument in or submitted to the intermediate
appellate court, the operation of such order terminates and the
defendant must surrender himself to the criminal court in which the
judgment was entered in order that execution of the judgment be
commenced or resumed; except that this subdivision does not apply where
the intermediate appellate court has (a) extended the time for argument
or submission of the appeal to a date beyond the specified period of one
hundred twenty days, and (b) upon application of the defendant,
expressly ordered that the operation of the order continue until the
date of the determination of the appeal or some other designated future
date or occurrence.
6. Where the defendant is at liberty during the pendency of an appeal
as a result of an order issued pursuant to this section, the
intermediate appellate court, upon affirmance of the judgment, must by
appropriate certificate remit the case to the criminal court in which
such judgment was entered. The criminal court must, upon at least two
days notice to the defendant, his surety and his attorney, promptly
direct the defendant to surrender himself to the criminal court in order
that execution of the judgment be commenced or resumed, and if necessary
the criminal court may issue a bench warrant to secure his appearance.
S 530.50 Order of recognizance or bail; during pendency of appeal.
A judge who is otherwise authorized pursuant to section 460.50 or
section 460.60 to issue an order of recognizance or bail pending the
determination of an appeal, may do so unless the defendant received a
class A felony sentence or a sentence for any class B or class C felony
offense 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.
S 530.60 Order of recognizance or bail; revocation thereof.
1. Whenever in the course of a criminal action or proceeding a
defendant is at liberty as a result of an order of recognizance or bail
issued pursuant to this article, and the court considers it necessary to
review such order, it may, and by a bench warrant if necessary, require
the defendant to appear before the court. Upon such appearance, the
court, for good cause shown, may revoke the order of recognizance or
bail. If the defendant is entitled to recognizance or bail as a matter
of right, the court must issue another such order. If he is not, the
court may either issue such an order or commit the defendant to the
custody of the sheriff.
2. (a) Whenever in the course of a criminal action or proceeding a
defendant charged with the commission of a felony is at liberty as a
result of an order of recognizance or bail issued pursuant to this
article it shall be grounds for revoking such order that the court finds
reasonable cause to believe the defendant committed one or more
specified class A or violent felony offenses or intimidated a victim or
witness in violation of sections 215.15, 215.16 or 215.17 of the penal
law while at liberty. Before revoking an order of recognizance or bail
pursuant to this subdivision, the court must hold a hearing and shall
receive any relevant, admissible evidence not legally privileged. The
defendant may cross-examine witnesses and may present relevant,
admissible evidence on his own behalf. Such hearing may be consolidated
with, and conducted at the same time as, a felony hearing conducted
pursuant to article one hundred eighty of this chapter. A transcript of
testimony taken before the grand jury upon presentation of the
subsequent offense shall be admissible as evidence during the hearing.
The district attorney may move to introduce grand jury testimony of a
witness in lieu of that witness` appearance at the hearing.
(b) Revocation of an order of recognizance or bail and commitment
pursuant to this subdivision shall be for the following periods, either:
(i) For a period not to exceed ninety days exclusive of any periods of
adjournment requested by the defendant; or
(ii) Until the charges contained within the accusatory instrument have
been reduced or dismissed such that no count remains which charges the
defendant with commission of a felony; or
(iii) Until reduction or dismissal of the charges contained within the
accusatory instrument charging the subsequent offense such that no count
remains which charges the defendant with commission of a class A or
violent felony offense.
Upon expiration of any of the three periods specified within this
paragraph, whichever is shortest, the court may grant or deny release
upon an order of bail or recognizance in accordance with the provisions
of this article. Upon conviction to an offense the provisions of article
five hundred thirty of this chapter shall apply.
(c) Notwithstanding the provisions of paragraph (a) of this
subdivision a defendant, against whom a felony complaint has been filed
which charges the defendant with commission of a class A or violent
felony offense committed while he was at liberty as specified therein,
may be committed to the custody of the sheriff pending a revocation
hearing for a period not to exceed seventy-two hours. An additional
period not to exceed seventy-two hours may be granted by the court upon
application of the district attorney upon a showing of good cause or
where the failure to commence the hearing was due to the defendant`s
request or occurred with his consent. Such good cause must consist of
some compelling fact or circumstance which precluded conducting the
hearing within the initial prescribed period.
S 530.70 Order of recognizance or bail; bench warrant.
1. A bench warrant issued by a superior court, by a district court, by
the New York City criminal court or by a superior court judge sitting as
a local criminal court may be executed anywhere in the state. A bench
warrant issued by a city court, a town court or a village court may be
executed in the county of issuance or any adjoining county; and it may
be executed anywhere else in the state upon the written endorsement
thereon of a local criminal court of the county in which the defendant
is to be taken into custody. When so endorsed, the warrant is deemed
the process of the endorsing court as well as that of the issuing court.
2. A bench warrant may be addressed to: (a) any police officer whose
geographical area of employment embraces either the place where the
offense charged was allegedly committed or the locality of the court by
which the warrant is issued; or (b) any uniformed court officer for a
court in the city of New York, the county of Nassau, the county of
Suffolk or the county of Westchester that is part of the unified court
system of the state for execution in the building wherein such court
officer is employed or in the immediate vicinity thereof. A bench
warrant must be executed in the same manner as a warrant of arrest, as
provided in section 120.80, and following the arrest, such executing
police officer or court officer must without unnecessary delay bring the
defendant before the court in which it is returnable; provided, however,
if the court in which the bench warrant is returnable is a city, town or
village court, and such court is not available, and the bench warrant is
addressed to a police officer, such executing police officer must
without unnecessary delay bring the defendant before an alternate local
criminal court, as provided in subdivision five of section 120.90; or if
the court in which the bench warrant is returnable is a superior court,
and such court is not available, and the bench warrant is addressed to a
police officer, such executing police officer may bring the defendant to
the local correctional facility of the county in which such court sits,
to be detained there until not later than the commencement of the next
session of such court occurring on the next business day.
2-a. A court which issues a bench warrant may attach thereto a summary
of the basis for the warrant. In any case where, pursuant to subdivision
two of this section, a defendant arrested upon a bench warrant is
brought before a local criminal court other than the court in which the
warrant is returnable, such local criminal court shall consider such
summary before issuing a securing order with respect to the defendant.
3. A bench warrant may be executed by (a) any officer to whom it is
addressed, or (b) any other police officer delegated to execute it under
circumstances prescribed in subdivisions four and five.
4. The issuing court may authorize the delegation of such warrant.
Where the issuing court has so authorized, a police officer to whom a
bench warrant is addressed may delegate another police officer to whom
it is not addressed to execute such warrant as his agent when:
(a) He has reasonable cause to believe that the defendant is in a
particular county other than the one in which the warrant is returnable;
and
(b) The geographical area of employment of the delegated police
officer embraces the locality where the arrest is to be made.
5. Under circumstances specified in subdivision four, the police
officer to whom the bench warrant is addressed may inform the delegated
officer, by telecommunication, mail or any other means, of the issuance
of the warrant, of the offense charged in the underlying accusatory
instrument and of all other pertinent details, and may request him to
act as his agent in arresting the defendant pursuant to such bench
warrant. Upon such request, the delegated police officer is to the same
extent as the delegating officer, authorized to make such arrest
pursuant to the bench warrant within the geographical area of such
delegated officer`s employment. Upon so arresting the defendant, he must
without unnecessary delay deliver the defendant or cause him to be
delivered to the custody of the police officer by whom he was so
delegated, and the latter must then without unnecessary delay bring the
defendant before the court in which such bench warrant is returnable.
6. A bench warrant may be executed by an officer of the state
division of parole or a probation officer when the person named within
the warrant is under the supervision of the division of parole or a
department of probation and the probation officer is authorized by his
probation director, as the case may be. The warrant must be executed
upon the same conditions and in the same manner as is otherwise provided
for execution by a police officer.
S 530.80 Order of recognizance or bail; surrender of defendant.
1. At any time before the forfeiture of a bail bond, an obligor may
surrender the defendant in his exoneration, or the defendant may
surrender himself, to the court in which his case is pending or to the
sheriff to whose custody he was committed at the time of giving bail, in
the following manner:
(a) A certified copy of the bail bond must be delivered to the
sheriff, who must detain the defendant in his custody thereon, as upon a
commitment. The sheriff must acknowledge the surrender by a certificate
in writing, and must forthwith notify the court in which the case is
pending that such surrender has been made.
(b) Upon the bail bond and the certificate of the sheriff, or upon
the surrender to the court in which the case is pending, such court
must, upon five days notice to the district attorney, order that the
bail be exonerated. On filing such order, the bail is exonerated
accordingly.
2. For the purpose of surrendering the defendant, an obligor or the
person who posted cash bail for the defendant may take him into custody
at any place within the state, or he may, by a written authority
indorsed on a certified copy of the bail bond, empower any person over
twenty years of age to do so.
3. At any time before the forfeiture of cash bail, the defendant may
surrender himself or the person who posted bail for the defendant may
surrender the defendant in the manner prescribed in subdivision one. In
such case, the court must order a return of the money to the person who
posted it, upon producing the certificate of the sheriff showing the
surrender, and upon a notice of five days to the district attorney.