Can the Prosecutor Revoke or Modify a Securing Order to Set Bail?
March 3, 2023
When you are charged with a crime, an initial arraignment will take place where the judge will decide whether to hold you in jail or release you under monetary or nonmonetary conditions. If you are released under an order on your own recognizance, non-monetary conditions, or bail, the Court may review that order if it considers it necessary.
What Might Trigger the Revocation or Modification of a Securing Order?
CPLR 530.60(2)(a) is the statute that provides for revocation of or modification of a securing order where there is an allegation that a witness has been intimidated. (2)(b) further states the court may revoke or modify a securing order where the court has found that the defendant has either, one, failed to appear; two, violated an order of protection; three, intimidated a victim or witness; or four, is charged with a Class A or violent felony. This must be proven to the court by clear and convincing evidence (a lower standard than beyond a reasonable doubt).
What Must the Prosecutor Prove?
In following the statute outlined in 530.60, the prosecutor must abide by the procedure for the revocation of a securing order under 530.60(2)(c). (2)(c) requires the court to hold a hearing and receive any relevant admissible evidence not legally privileged before revoking an order of recognizance. At this hearing, the Defendant may cross-examine witnesses and present relevant, admissible evidence on their own behalf. The Second Department held in Lord v. Columbia County Sheriff, 75 Misc. 3d 581 (2021), that hearsay evidence (out of court statements brought in for the truth of the matter asserted), unless allowed under a recognized exception, could not be considered in a 530.60(2)(c) revocation hearing. However, a transcript of testimony taken before the grand jury for that subsequent offense shall be admissible, as well as grand jury testimony of a witness in lieu of their appearance at the 530.60(2)(c) hearing. It is important that 530.60(2)(c) hearings be done in accordance with the law before revocations under 530.60(2)(a) or (2)(b)