Setting Bail: Must Be More Than One Form Of Bail In New York Courts
People v. Martin F. Horn,
Decided March 22, 2012 by New York Court of Appeals
Issue: whether CPL 520.10 (2) (b) prohibits a court from designating only one form of bail.
Holding: the Court of Appeals held that Criminal Procedure Law § 520.10(2)(b) prohibits a court from fixing only one form of bail.
Facts: McManus was on parole in January 2009 when he was arrested for arson. Bail was set at $5,000, cash or bond, which McManus posted. McManus subsequently violated the order of protection by verbally abusing the victim and twice threatening him with weapons (a screwdriver and what appeared to be a handgun). At his arraignment on the new charges, bail was set at $1,500 for each incident, cash or bond. Because the Division of Parole filed a violation warrant with the Department of Corrections, McManus was not released on bail after arraignment.
McManus was later indicted for two counts of arson in the third degree, four counts of aggravated harassment in the second degree, two counts of criminal mischief in the fourth degree and one count of assault in the third degree. Supreme Court ordered that bail be set at $20,000, “cash only.”
When the Division of Parole lifted its hold on McManus, he tried to secure a bail bond but was unable to do so because the court had designated bail as cash only. This prompted McManus to seek alteration of the bail ruling, arguing that setting one form of bail — such as cash-only bail — is prohibited under CPL 520.10 (2) (b), which he claimed requires a court to set a second permissible form of bail. Supreme Court disagreed and adhered to the $20,000 cash bail order.
McManus then commenced this CPLR article 70 proceeding for a writ of habeas corpus. A different Justice dismissed the petition, concluding that CPL 520.10 (2) does not preclude a judge from setting a single form of bail (The Appellate Division affirmed for the same reason.
Legal Analysis: Section 520.10 of the Criminal Procedure Law delineates the authorized forms of bail and the methods by which bail may be set by a court. Nine categories of bail are permitted under subdivision (1) of the statute: (1) cash; (2) an insurance company bail bond; (3) a secured surety bond; (4) a secured appearance bond; (5) a partially-secured surety bond; (6) a partially-secured appearance bond; (7) an unsecured surety bond; (8) an unsecured appearance bond; and (9) by posting bail with a credit card or similar device
Subdivision (2) of the statute specifies two distinct “methods of fixing bail.” The first option permits a court to “designate the amount of the bail without designating the form or forms in which it may be posted” — in such instance, the court merely declares a monetary sum. If this occurs, the accused can post either an unsecured surety bond or an unsecured appearance bond . The second option states that a “court may direct that the bail be posted in any one of two or more of the forms specified in subdivision one, designated in the alternative, and may designate different amounts varying with the forms”.
Inclusion of the word “may” in both subdivisions was the simplest way for the Legislature to codify the two permissible methods for fixing bail: under subdivision (2) (a), a court may order a specific amount of bail without stating any particular bail form (in which case the accused may choose either an unsecured surety bond or an unsecured appearance bond); or, under subdivision (2) (b), a court may specify the forms of bail but the defendant is entitled to at least two alternative choices. The Legislature could not have used the word “must” in either provision because that would have defeated the court’s discretion to choose between the two options for fixing bail.
Providing flexible bail alternatives to pretrial detainees — who are presumptively innocent until proven guilty beyond a reasonable doubt — is consistent with the underlying purpose of article 520. The legislation was intended to reform the restrictive bail scheme that existed in the former Code of Criminal Procedure in order to improve the availability of pretrial release (see e.g. Bellamy v Judges in N.Y. City Crim. Ct., 41 AD2d 196, 202 [1st Dept 1973], affd 32 NY2d 886 ; Mem of Commission on Revision of the Penal Law and Criminal Code, Bill Jacket, L 1970, ch 996, at 10). Subsequent amendments further loosened those strictures (see Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 520.10, at 51).
CPL 520.10 (2) (b) imposes no undue restriction on a court that believes a substantial personal undertaking “is necessary to secure [the defendant's] court attendance” in future proceedings (CPL 510.30  [a]). Here, the bail court evidently decided that $20,000 cash bail was warranted because McManus had flouted a judicial directive by repeatedly engaging in criminal conduct toward the subject of the temporary order of protection.
A judge could reasonably conclude that a person who has already violated a judicial edict is more likely to ignore another command — such as an instruction to appear in court — and therefore impose stricter bail to encourage compliance with the court’s mandates. If a court believes that $20,000 cash bail is an effective method to achieve this objective, CPL 510.20 (2) (b) allows it to be ordered along with a second type of bail that, in effect, may be virtually indistinguishable from the cash option. For instance, the judge could order as an alternative a $200,000 partially-secured appearance bond requiring a monetary deposit of 10% (see CPL 500.10 ), or a $20,000 secured appearance bond that could be satisfied with (among other things) $20,000 in cash (see CPL 500.10  [a]). Hence, there does not appear to have been a compelling need for the Legislature to authorize a single form of bail in CPL 510.20 (2) (b).