The District Attorneys Association of the State of New York (DAASNY) released a statement this week that is generally supportive of Governor Kathy Hochul’s 10-point Public Safety Plan. The Erie County District Attorney John J. Flynn wants several changes to the State’s so-called ‘bail reform’.
1. Bail Reform: Expand the list of factors to determine bail for Most Serious Felonies
For the Most Serious Felonies, Flynn wants judges to be allowed to set bail not based solely on the “least restrictive” conditions deemed necessary to ensure a principal’s return to court. The statute would set forth specific criteria on which the judge will base his/her determination including criminal history and history of firearm use/possession
Flynn has proposed legislative language: (CPL § 51 0.1 0 (1-a) . . . . ‘court authorized to fix bail or commit principal to the custody of the sheriff in order to reasonably assure the safety of any person(s) or community upon finding 1 or more of the following:”
a) Violation of OOP; or
b) History of use or possession of a firearm; or
c) A violent felony conviction within the last 5 years exclusive of time spent in jail/prison or a significant criminal history that demonstrates a high probability that the principal will re-offend prior to the resolution of the case;
d) A credible and current threat of serious harm to an identified individual or a number of them;
e) A clear and imminent risk of flight based upon a pattern of failure to appear or scheduled court dates and a weighing of the nature of the charge, including the potential sentence.
Most Serious Felonies Include:
• Murder 1st § 125.27
• Murder 2nd § 125.25
• Aggravated Murder §125.26
• Manslaughter 1st § 125.20
• Manslaughter 2nd § 125.15
• Aggravated Criminal Negligent Homicide §125.11
• Aggravated Manslaughter 2nd § 125.21
• Aggravated Manslaughter 1st § 125.22
• Criminal Use of Firearm 2nd § 265.08
• Criminal Use of Firearm 1st § 265.09
• CPW 2nd § 265.03
• CPW 1st § 265.04
• CPW 3rd § 265.02 (when the weapon is a machine gun, firearm, rifle, or shotgun)
• CPW on School Grounds, §265.01-a
• Assault 1st §120.10 (with an underlying weapon/gun charge)
2. Bail Reform: Make Repeat Offenders Subject to Arrest and Bail Eligible
For offenses that are mandatory DAT, Flynn wants police to have the discretion (not a requirement) to deny DAT and arrest an individual who has previously received a DAT within 18 months.
Flynn has proposed legislative language: § 150.20 Appearance Ticket (modifies paragraph iii):
(b) Officer not required to issue DAT if:
i) Person has 1 or more outstanding local criminal court or superior court warrants.
ii) person has failed to appear in Court proceedings in the last 2 years;
iii) person has received an appearance ticket or has been charged in the prior 18 months, exclusive of time spent in jail or prison
Flynn wants all 2nd offenses within a certain time period will be bail eligible. Flynn has proposed legislative language §530.40(4)
(t) any felony or class A misdemeanor involving harm to an identifiable person or property, where such charge arose from conduct occurring while the defendant was released on his or her own recognizance or released under conditions for a separate felony or class A misdemeanor involving harm to an identifiable person or property, 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.
3. Bail Reform: Increase the number of crimes eligible for custodial arrest
Flynn wants certain crimes presently requiring DAT to become eligible for custodial arrest. Flynn wants new Custodial Arrest Eligible Offenses to include:
• Criminal Possession of Firearm, § 265.01-b
• CPW on School Grounds, § 265.01-a
• CPW 3rd, § 265.02(3)
• Criminal Sale of Firearm to a minor, § 265.16
• Any hate crime as defined in Article §485.05
• If the person has committed a crime against a person or employee while in any train, bus, or facility operated by Metropolitan Transit Authority or Port Authority of NY/NJ for purpose of providing public transportation.
4. Bail Reform: Make gun-related offenses bail eligible
Flynn wants certain gun-related offenses added to the list of qualifying offenses for bail. He is proposed legislative language: Add (u) to CPL 510 which adds the following crimes
- Criminal Possession of a firearm, § 265.01-b
- CPW 3rd § 265.02(3)
- Criminal Sale of a firearm to a minor, § 265.16
5. Make it easier to prosecute gun trafficking
Flynn wants to reduce the number of guns someone has to sell to be subject to penalties for gun trafficking. Currently, to be charged with a class B felony, 10 guns must be involved or 5 guns to be charged with the class C felony. Thresholds would be reduced to 3 and 2 respectively, within a one-year period, and make the possession of3 or more firearms presumptive evidence of intent to sell.
6. Reforms to Discovery
Flynn is proposing three changes:
1) Allow prosecutors to be deemed in “substantial compliance” with discovery;
2) Make a conforming/technical change to enable a case to proceed once a prosecutor has turned over all locatable materials; language in the current law providing for unavailable materials appears in CPL 245.50(3) but is missing from CPL 245.80(l)(b) and therefore cannot be effectuated.
3) Exclude traffic infractions from the discovery burdens.
7. Reforms to Raise the Age
Flynn is proposing three changes:
1) Gun possession will be sufficient to allow, but not require, a judge to keep a case in criminal court (no longer requiring us to show it was displayed)
2) Give Youth Part judges the authority to access the Family Court records and all parties to Youth Part proceeding access to those records for purpose of setting bail, determining appropriate resource needs of the defendant and sentencing recommendations. Records can then be re-sealed.
3) Grants jurisdiction to Family Court over any person charged with committing a crime when they were under 18 but who were not arrested until they turned 18.
8. Increase Funding for Pretrial Services, Diversion & Employment Programs
The Executive Budget already proposes $83.4 million in new funding to address gun violence and support pretrial services. Flynn wants more funding will to be added for pretrial services, including voluntary support for any case where a defendant is ROR and mandatory programming (e.g. travel restrictions, electronic monitoring, the threat of remand for future gun possession) for all gun-related cases that are neither remanded nor ROR’d.
Flynn is asking the State to work with localities to push out hundreds of millions of dollars of Raise the Age implementation. Funding for employment programs for individuals involved in gun violence.
9. Expand Involuntary Commitment and Kendra’s Law
The Executive Budget includes a number of modest proposals to strengthen Kendra’s Law. More recently, the Governor proposed new spending on mental health services, and the State issued interpretive guidance to expand the use of the involuntary commitment statute.
An important additional expansion of our ability to address the acute needs of the seriously mentally ill, however, will be to change the statutory standard for involuntary commitment and Kendra’s Law to apply to individuals who pose a danger to themselves through self-neglect.
10. Increase Funding for Mental Health Treatment
The Executive Budget committed $21 million for Safe Options Support (SOS) teams to help individuals move off the street into stable housing and, where needed, access mental health and social services. In addition, the Governor’s housing plan includes funding for 10,000 supportive housing units.
Further, a recent joint announcement by Governor Hochul and Mayor Adams included funding for 140 additional Safe Haven beds, 350 new stabilization beds, 600 psychiatric hospital beds, and 500 scattered-site supportive housing units.
Additional funding will be committed to further increase mental health services and housing capacity, specifically transitional respite housing and additional permanent supportive housing units.