Criminal Court Bail in New York City
By John Brosnan and Lance Fletcher, New York City Criminal Defense Attorneys
Generally speaking, bail is a system that governs you from the time you've been arrested to the time that your case is resolved. It can range from something relatively minor such as a curfew to something relatively harsh such as being held in jail with no possibility of being released (remand). Historically, bail could be used by the government to sidestep the legal process by keeping a suspect in jail where he or she would wait for a trial that may never happen or that would happen after many years. In the United States, the framers of our constitution put a stop to this practice by giving you the right to more reasonable bail conditions.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Constitution, Amendment VIII. Bail is a concept as old as the United States itself. Bail is a tool used to ensure your appearance at court and protection of the public. While the U.S. Constitution guarantees you the right of not having excessive bail imposed, there is no right to have bail set in your case. In New York, bail can only be set in order to ensure your return to court or to keep the public safe.
Usually, New York bail is set at the arraignment date (or "return date" on your desk appearance ticket) by the criminal court judge after hearing arguments by the prosecutor and your criminal defense attorney. The amount of bail that can be set ranges. Not every case results in bail being set. If the alleged offense is relatively minor and/or your attorney has convinced the judge to release you, the judge may agree to you being released in your own recognizance, or ROR. This means that you are not considered a flight risk and the court is trusting you to return to all of your court dates. Being released with no bail is not guaranteed, even if you're being arrested for the first time for something relatively minor. (We've seen clients contact us after bail was set for a first arrest marijuana charge.) On the other end of a spectrum is being remanded, or being held without bail. You can be remanded when the court does not believe that there is any amount of bail that will ensure your return to court. This can occur if you have a prior record and/or if you are facing serious charges. If you are not remanded or granted ROR, bail will be set in a fixed amount in your case. Bail can be set in either a cash amount, bond amount, or both. Usually, New York bail is set in both a cash and bond amount with the cash amount being half of the bond. For example, your bail could be set at $10,000 bond or $5,000 cash. There are differences between posting a cash bail or posting a bond. When posting cash, you post the entire bail amount with the court or jail. If you make all your court appearances, you will receive your money back at the end of the case. If you choose to go through a bail bondsman and post a bond, you will have enter into a contract with the bondsman and he will post the bond for a fee. Usually the fee is about 10% of the bond but different bondsmen have different rates and policies (contact your attorney for help finding a suitable bondsman). Some or all of the bail bonds fee in non-refundable. If you fail to appear at any of your court dates, you can lose your cash bail or if you posted a bond, the bondsman can come after you for the rest of the bond. Bail can also be set with a surety, such as a 48 hour or 72 hour surety. This is when the judge is giving the prosecutor the right to inspect and scrutinize the source of funds being used to bail you out. If you fail the surety, you could be held in jail despite having the money to post bail.
Since bail is generally used to ensure your return to court, the court will consider all factors that show your likelihood of returning in determining your bail status. Factors such as ties to the community, employment, past warrant history, and even whether or not you have retained counsel will play a factor in determining your bail. It is very important to make a good argument for ROR or low bail at the arraignment. In order to change one’s bail status, there must have been a “change in circumstances” in order for a judge to alter your bail status. Because of this threshold, you really are only getting one bite at the apple. Also, any failure to show up for a court date may result in a warrant being issued for your arrest, your bail being revoked, and you being remanded for the remainder of your case.