At arraignment the judge may set bail. Or, he may not set bail and you will be remanded to jail to await trial. Alternatively, you may be released on your own recognizance (R.O.R.’d).

The prosecutor will make his argument first, typically asking the judge to remand the defendant or set hight bail. The defense will then have an opportunity to argue for bail or release.

In deciding whether to set bail, the judge will consider a number of factors, including: the seriousness of the charges, any prior criminal convictions, any outstanding criminal cases or arrest warrants, the defendant’s community ties. The latter is very important, and you are more likely to have bail set if you have a job, own a house, are a citizen, and have family in New York.

If the arraignment judge sets bail, it is often useful to have evidence of your ties to the community ready, since bail is set to reduce a defendant’s risk of flight. For instance, it is good to have family present at arraignment, or evidence of employment. Also, if you have money available for bail, someone should have it in court and the judge should be made aware of how much money you are able to raise. Bail may be posted in court, which is always easier than posting bail after you are removed from court to a detention facility such as Rikers Island.

Of course, if you have substantial funds available for bail, the likelihood of being assigned counsel will decrease. Usually, if you can afford bail the court will not assign counsel and you will be required to retain a lawyer out of your own pocket.

Bail can be met in various ways. “Cash bail” is a dollar amount that must be surrendered in cash in order to secure a defendant’s release from jail. A “bail bond” is arranged through a bondsman who essentially promises to pay a certain amount in the event the defendant fails to appear in court as required. A bail bond company will typically require ten percent of the bail amount in order to write the bond in addition to asking for certain other guarantees.

The court may set bail as “cash only” or as “cash or bond.” If the former, then you cannot set bail from a bondsman and have to post cash. When the court allows cash or bond, it will ordinarily set a higher bond amount.

Bail can be paid from a variety of sources, including property, but the source of the bail may be looked into by the court when it has reason to believe the bail is being paid from illegitimate funds.

If a defendant fails to appear as required on any court date, any cash bail is forfeited and you cannot get it back. If bail was paid through a bondsman, he will be required to pay on the bond; he will then look to the guarantors for payment.

After the final disposition of the case, any cash bail is returned. If bail was paid by bond, the bondsman keeps the percentage paid as his fee.

Once bail is set, the court will not lower bail unless you can show there has been a change of circumstances. Accordingly, it is best to come ready to make your best bail argument at arraignment in Criminal Court.


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