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From The Governor: The Changes To Bail Reform

April 10, 2022

Clarify and Expand the Factors That Judges Must Consider When Setting Bail

The FY2023 Enacted Budget expands the list of factors that judges must consider when setting bail, adding: (1) history of gun use or possession (which currently applies only in domestic violence cases); (2) any previous violation of an order of protection (which currently applies only in domestic violence cases); and (3) whether the charge is alleged to have caused serious harm to an individual or individuals. In addition, there will be new reporting requirements related to bail determinations made by judges, and how they relate to recommendations made by prosecutors.

Fix the Discovery Statute

The FY2023 Enacted Budget ensures that cases will not be automatically dismissed when prosecutors make belated discovery disclosures in good faith. Judges will assess the extent of the prejudice to the defendant created by any belated disclosure, and determine what, if any, sanctions are appropriate. In addition, automatic discovery will no longer apply to traffic infractions and other administrative tickets.

Expand Arrest-Eligibility and Bail-Eligibility for Repeat Offenses and Hate Crimes

The FY2023 Enacted Budget will allow police to make arrests, not just issue desk appearance tickets, for all repeat offenses currently covered by the bail law — repeat felonies and class A misdemeanors involving harm to a person or property will now be both arrest-eligible and bail-eligible. Repeat offenses involving theft of property will also now be arrest-eligible and bail-eligible, with limited exceptions for crimes of poverty. In addition, the “Desk Appearance Ticket loophole” will be closed, so that these provisions of law will apply to repeat offenses even if there has not yet been an arraignment for the first offense. Finally, all hate crimes that are not currently arrest-eligible will become arrest-eligible if the individual is eighteen or older.

Expanding Bail Eligibility for Gun Offenses

The FY2023 Enacted Budget allows judges to set bail for all three felony gun offenses that are not currently bail-eligible: criminal sale of a firearm to a minor (265.16) and criminal possession of a defaced firearm (265.02(3)) will be fully bail-eligible, while criminal possession of an unloaded gun (265.01(b)) will become bail-eligible (and arrest-eligible) on a second offense. In addition, criminal possession of a gun on school grounds (265.01(a)) (commonly applied to unloaded guns), which is already bail-eligible but not arrest-eligible, will become arrest-eligible if the individual is eighteen years old or older.

Close the “Raise the Age Loophole” and Provide Program Referrals to Juveniles on Release

The FY2023 Enacted Budget closes the “Raise the Age loophole” and provides Family Court with jurisdiction over cases when 16- and 17-year-olds are charged with an offense but not arraigned until they are 18; currently these cases are dismissed due to lack of jurisdiction. Courts will also be required to provide referrals to programs and services to juveniles who are being released.

Extend and Improve Kendra’s Law

The FY2023 Enacted Budget extends Kendra’s Law through 2027, and enacts the most significant substantive amendments to the law since it was overhauled in 2005. These amendments will make “assisted outpatient treatment” (AOT) orders function more effectively, remove procedural bars, and increase coordination between service providers. To better enable AOT hearings, physicians will now be able to testify virtually. Courts will be able to issue AOT orders for individuals whose symptoms have worsened. And hospitals will now be required to share patient information with the mental health professionals responsible for supervising AOT orders. Additionally, the state will conduct an independent study on mental health treatment outcomes for individuals on AOT compared to individuals receiving voluntary services by June 30, 2026.

Allows Judges to Require Mental Health Evaluations as a Condition of Pretrial Release

The FY2023 Enacted Budget allows courts to order psychiatric assessment for individuals who appear, by clear and convincing evidence, to be mentally ill such that if left unattended their conduct may result in harm to themselves or others. Upon assessment and determination by a physician, individuals may be subject to involuntary commitment in accordance with the mental hygiene law. Additionally, judges will have access to assessment summaries to ensure compliance with any conditions of release, including essential treatment and services.

Invest in Mental Health Services and Treatment

The Enacted Budget makes substantial investments in mental health crisis infrastructure, including:

$35 million to prepare New York for the nationwide launch of 9-8-8, the suicide prevention and behavioral health crisis hotline system, increasing to $60 million in FY2024;
$55 million ($27.5 million in State funds plus federal matching dollars) for hospitals to bring up to 1,000 inpatient psychiatric beds back online;
$11.3 million to launch the Governor’s Safe Options Support (SOS) homeless outreach teams comprised of mental health specialists to conduct direct one-on-one outreach to New Yorkers experiencing homelessness, ramping up to the full annual investment of $21.5 million starting in FY2024;
$12.5 million for 500 dedicated scattered site supportive housing beds to more quickly transition those in crisis from the streets, subways, and shelters to stable housing;
An additional $10 million in crisis response infrastructure investment;
A restoration of $10.2 million in funding for OMH State-Operated Psychiatric Centers to ensure adequate staffing and capacity; and
$9 million to launch a loan forgiveness program to recruit psychiatrists and psychiatric nurse practitioners.

In addition, the comprehensive housing capital plan in the Enacted Budget includes 10,000 units of supportive housing.

Invest in Discovery and Pretrial Services

The Budget includes $90 million in new resources to support discovery reform implementation and pretrial services. This includes $65 million in new investments to discovery that ensure public safety, including system-wide coordination, technology, expanded storage capabilities, and administrative support. It also includes $25 million for pretrial services, alternative to incarceration services and reentry programs. These services include reminders and monitoring of court attendance, screening, and referrals for mental health and substance abuse treatment.

Make it Easier to Prosecute Gun Trafficking

The FY2023 Enacted Budget makes it easier to prosecute gun trafficking, which will facilitate the work of the Governor’s newly established inter- and intra-state gun tracing consortium. The illegal sale of two or more guns within a year will now constitute a C felony (down from five guns), and the illegal sale of three or more guns within a year will now constitute a B felony (down from ten guns). In addition, possession of three or more guns (down from five) will constitute a presumption of the intent to sell, making it easier to bring forth these charges.