Opinion: 98-78
September 10, 1998
Digest:    (1) A judge may indicate a suggested bail on an arrest warrant or bench warrant, provided it is noted that the suggestion is a recommendation only. (2) Consideration of the bail suggested by another judge on an arrest warrant or bench warrant does not diminish the judge's independent duty to consider relevant bail factors, as required by law, when the defendant is brought before the court.

Rule:    Matter of LaBelle, 79 NY2d 350 (1992);
            CPL 530.11(4); FCA 155; DRL 252(2-a);
            22 NYCRR 100.3(A); 100.3(A)(1).


            A town justice asks the following question: "When I make out a Bench Warrant is it permissible to add a suggested Bail with the Bench Warrant?"

            The Court of Appeals considered this issue in its review of a determination of the New York State Commission on Judicial Conduct which had concluded that the practice was improper. In Matter of LaBelle, the Court said (79 N.Y.2d 350, 362):

Little need be said about the charge that petitioner
improperly set bail on arrest warrants and bench
warrants. The practice of indicating a suggested
bail on such warrants, it has been noted, is common
and, although it may not be advisable, is not prohibited
by any statute (see, Bellacosa, Practice Commentary,
McKinneys Cons Law of NY, Book 11A, CPL 120.40,
at 133 [1981]). The purpose of a notation indicating a
specific amount of bail on an arrest warrant, according
to petitioner's testimony, is to allow the arrestee to post
bail immediately, without having to wait for arraignment.
A notation of "no bail", which petitioner commonly included
on bench warrants, was to insure that the defendant would be
brought before him and not released until petitioner could
inquire about the reasons for the missed appearances. In cases
where the defendant is in default of bail, the law requires that
he or she be brought before the court in which the warrant is
returnable (CPL 120.90[3]); thus, a notation for that purpose
may be superfluous, but it is not contrary to the law. As long
as these notations do not preclude fair consideration of relevant
bail factors when the defendant is brought before the court, we
cannot say that their use constitutes misconduct.
            In 1997, the New York State Legislature specifically authorized the practice of suggesting bail on a warrant in certain instances. It is now required that local court judges consider the bail recommendations, if any, made by a Supreme Court justice or Family Court judge, indicated on the warrant or certificate of warrant when arraigning on a Supreme or Family Court warrant in a domestic violence situation and the Supreme Court or Family Court is not in session. CPL 530.11(4); ("... the local criminal court shall consider the bail recommendation, if any, made by the Supreme or Family Court as indicated on the warrant or certificate of warrant"); see also FCA 155; DRL 252 (2-a).

            In light of the Court of Appeals' determination in LaBelle, and the subsequent legislative enactments, the Committee concludes that a judge may specify a suggested bail on the arrest or bench warrant and may consider bail suggested by another judge when that defendant is appearing before him or her. Indeed, as noted above, in certain instances, consideration is required. But in suggesting bail on a warrant, the judge must indicate that the amount is suggested only and is not required or mandated. Further, if feasible, the judge should state the reason for the amount recommended. When considering the bail amount suggested on a warrant, the judge arraigning the defendant on the warrant may take the suggestion into consideration, but is not bound by it. Rather, the judge must make an independent determination of appropriate bail based on the factors specified in the Criminal Procedure Law. Adherence to these requirements will avoid any imputation that the judge in suggesting bail or in considering a suggested bail is not being "faithful to the law" (22 NYCRR 100.3[A][1]) or is not discharging "all the duties of the judge's office prescribed by law." 22 NYCRR 100.3(A).