How Does The Process Of Bail Work In New York?
I think of bail as a prediction by the judge, as to whether or not he or she thinks the accused will appear in court at all future appearances. The more confident the judge is on the future appearance, the lower the bail will be. The statute directs the judge to consider the following factors when deciding bail—the person’s character, reputation, habit and mental condition, his employment and finances, his family ties, and the length of residence, if any, in the community. For example, if the person has very strong family ties, such as if cousins and grandparents have lived in this community and have always lived in this community, one has a very strong reason for a judge to predict, and that the defendant will show up in court.
Everything he knows is in this community. If however, on the other extreme, the defendant has never been to this community before—he showed up one day and allegedly committed a crime, but he has no connections to this community whatsoever—it’s going to be difficult argue for low bail.
The court is directed by the legislature to look at is the defendant’s criminal record. The more severe the criminal record, the more likely it is that bail will be high. The cleaner the criminal record, the more likely that bail will be low. This record includes juvenile offenses and other kinds of offenses that one may have had, including a youthful offender offense, if there is a record of that.
Another factor, which I think is one of the most important factors for the court about to determine bail, is the defendant’s previous record in responding to court appearances when required. If one has been out on bail in the past, and did not show up in court, it’s going to be very difficult to convince the judge to set a low bail. Such a defendant is a flight risk. One has already proven he is a flight risk by fleeing once before. However, if one has a prior criminal record, was out on bail, and showed up every single time, then that’s a very strong argument in favor of a low bail.
Another factor that the court looks at is the weight of the evidence against the defendant. It’s really a prediction by the court as to whether or not this person is going to be convicted.
If the evidence against the defendant is extremely weak, then it is likely that the judge is going to say, of course he is going to show up in court; he has nothing to fear. If the evidence against the defendant is extremely strong, then it is less clear that he will show up in court in the future, and the bail may be higher.
Finally, the court looks at the sentence that the defendant might receive. If the defendant is looking at the possibly, if everything goes wrong, 15 days in jail, bail will probably be low. How many people will hide for the rest of his or her life to avoid a 15 day sentence. But if the sentence that the person is going to receive if he convicted is the rest of one’s life in prison, there may be a greater incentive for the defendant to run.
Bail can be posted in cash, by insurance company bond, or other secured instrument. Cash is simple, and provided that the court doesn’t forfeit the bail for non-appearance, the cash is returned to the person who posted the bail, less 3% if there was a conviction. It’s a penalty fee, which is basically a tax that the state imposes.
If it’s an insurance company bond that requires the person to basically put down money—people say 10%, but it is not always that amount—whatever the percentage is, the person puts down money, that’s basically the premium one pays, and the insurance company guarantees the rest of the amount. If the person does not show up in court the bail is forfeited the same as cash bail.
If the person does show up, at the end of the proceedings with an insurance company bond, usually, depending on what the contract says, the person who posted the money gets nothing back at the end of it. The bonding company keeps that money as its premium.
How Do You Advise Clients That Want To Plead Guilty To A Criminal Case In New York?
The final say in any criminal case on whether to plead guilty or not to plead guilty belongs to the accused, and only to the accused. The lawyer does not make that decision. The lawyer simply to advises and tries the case if necessary.
Here, as is true in most areas of the law, a simple answer may be misleading, at least in some circumstances. If the evidence of guilt is overwhelming, and the judges are known to the lawyer have given signals that suggest leniency with a guilty plea, a guilty plea in those circumstances might not be unwise.
I’d still be very hesitant about it, but it might not be unwise. Ordinarily I think you want to negotiate something more than just a hope that the judge will give you mercy before you enter a guilty plea. With very rare exceptions, the prosecutor’s office is generally willing to make some kind of accommodation, whether it’s dismissing certain charges, not filing other charges that maybe they could file in the future, or making a recommendation in sentencing for a lower amount than what might be the maximum. In those circumstances, it is oftentimes much better to have a negotiated deal before one enters a guilty plea, and not just throwing themselves on the mercy of the court. Of course, the other thing, and this should be there in every single case, there has to be an evaluation by the defense lawyer and client as to whether the prosecution can prove its case.
It’s extremely unwise to enter a guilty plea if the prosecution cannot prove the case. You may be guilty, you may be very guilty, but in America, the burden of proof is on the prosecution. You are not required to prove yourself innocent. You will hear that over and over in the courtroom, but you need to take those rights to heart. They are the essence of our criminal justice system. Obviously, the final decision is the defendant’s, but the advice is, if they can’t prove it, don’t plead guilty. If they can, then let’s see if we can work out a deal that will minimize the exposure for the defendant.
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