Defense attorneys dissect bail reform laws at criminal court seminar
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Kathleen Rende, Esq. went into detail on the impacts of the new bail reform to criminal defense Eagle photo by Rachel Vick.
By Rachel Vick
At a lunchtime seminar Monday at the Queens Criminal Courthouse, a handful of Queens defense attorneys and judges dissected practical considerations of the state’s new bail reform law.
The continuing legal education event was organized by the Criminal Court Committee of the Queens County Bar Association and featured moderator Gary Miret and presenter Kathleen Rende, staff attorney with the Queens Defenders.
A state law that took effect Jan. 1 eliminates cash bail on misdemeanors and nonviolent felonies, as well as certain robbery offenses considered violent felonies. The change has already affected the regular practice of criminal defense attorneys, including when offenses are or are not bail eligible as well as exceptions, limitations and stipulations to bail alternatives.
“The new way [of approaching bail] is not, ‘Well how serious is this offense’ it’s whether it’s a qualifying or non-qualifying offense,” Rende said. “At the heart of the statute is setting the least restrictive alternative, whether that be bail or non-monetary condition or of their own recognizance, and now there’s a carve-out for qualifying offenses.”
Mandatory conditions now include consideration for avoiding undue hardships, specifically financial burdens.
When making a decision, judges are now supposed to consider a non-monetary, “least restrictive alternative,” to “reasonably assure” their return to court, she said. Among the alternatives are supervised release and mandated contact with pretrial agencies like the Criminal Justice Agency — different tiers determine the extent of supervision.
Rende emphasized that those charged are not financially responsible for any element of alternative conditions, including transportation and drug testing.
She also pointed out some clauses that “may have been legislative oversight,” like in the case of home robberies; the current language allows bail to be set for an attempted robbery, but not for a successful one.
She went into detail on the court’s inability to implement electronic monitoring; without a nonprofit agency to supply the materials. There’s no “statutorily correct” way to apply the method, she said.
“This is not the first incongruity we’ve seen for the new bail and discovery statutes that aren't lined up with the practice as it stands,” Rende added.
One of “the most immediate points of contention” comes from the reminder requirements, she continued. Courts are mandated to inform defendants of upcoming court dates, but an Office of Court Administration contact form that asks for signatures and gets filed in court records has left many defendants and attorneys uneasy.
She explained that OCA is required to supply the form, but there is nothing requiring the defendant to fill it out. Clients have left it unsigned on the advice of their counsel, out of concern that the information could be used to incriminate their clients in other cases.
