In New York, a judge can only set bail on a charge that appears on the state’s list of qualifying offenses. The bail eligible offenses in New York are, broadly, violent felonies under Penal Law 70.02, most Class A felonies, and a specific set of serious charges added between 2020 and 2022, including witness tampering, sex trafficking, certain domestic violence offenses, several weapons crimes, and a handful of others. If your charge isn’t on that list, the judge cannot set money bail no matter what the prosecutor asks for.
Qualifying vs. Non-Qualifying: The Real Question
Since the 2019 bail reform took effect in January 2020, New York has split criminal charges into two buckets. On a non-qualifying charge, the judge’s only options are release on your own recognizance or release under non-monetary conditions like check-ins or travel restrictions. Cash bail is off the table. On a qualifying charge, the judge has the full range of tools: monetary bail, electronic monitoring, or an order holding you in custody.
Under CPL 510.10, the starting point at arraignment is release on recognizance. The court can move away from that only after finding that release alone won’t reasonably ensure you come back to court, and even then, what the judge can do next depends entirely on which bucket your charge falls into.
This is the point most people miss. A charge can sound serious and still be non-qualifying, which ties the judge’s hands on bail regardless of the circumstances or the prosecutor’s objections.
Charges That Qualify for Bail in New York
The qualifying list has grown through several rounds of amendments. As it stands, the main categories are:
- Violent felonies. Nearly all offenses listed under Penal Law 70.02, with narrow exceptions for certain second-degree robbery and second-degree burglary charges.
- Class A felonies. The most serious non-drug felonies, such as first-degree murder and first-degree kidnapping. Class A controlled substance felonies were originally excluded, but first-degree possession and first-degree sale of a controlled substance were added in 2020.
- Witness tampering and witness intimidation. All degrees under Penal Law 215.11 through 215.13, and witness intimidation under Penal Law 215.15.
- Sex trafficking, including sex trafficking of a child, added in 2020.
- Certain domestic violence offenses. Second-degree strangulation, criminal obstruction of breathing or blood circulation, and first-degree unlawful imprisonment when committed in a domestic violence context, all added in 2020.
- Other 2020 additions. Hate crime assault, third-degree arson, second-degree burglary of a dwelling, aggravated vehicular assault, first-degree grand larceny, aggravated assault on a child under 11, and money laundering in support of terrorism.
- Weapons offenses added in 2022. Third-degree criminal possession of a weapon and second-degree criminal sale of a weapon to a minor.
If a charge doesn’t appear on that list, the judge cannot set bail on it. That’s true even for offenses that carry significant potential sentences, because the qualifying framework doesn’t map neatly onto severity.
What Happens on a Non-Qualifying Charge
Roughly 90 percent of arrests in New York involve non-qualifying charges. For those cases, the default outcome at arraignment is release. Petit larceny, low-level drug possession, and most fraud offenses fall here, and defendants typically walk out of the courthouse the same day.
Release doesn’t have to be unconditional. On a non-qualifying charge, the judge can still impose non-monetary conditions aimed at making sure you come back to court: regular check-ins with a pretrial services program, travel restrictions, surrender of a passport, or contact with a supervision program. Electronic monitoring is available but restricted. Under the 2019 law, GPS tracking is primarily reserved for felony charges or cases involving domestic violence or sex offenses, and only after the judge finds that no less restrictive condition will work.
What a Judge Weighs When Bail Is on the Table
New York is unusual on this point, and it’s worth being explicit about it: the only legally authorized purpose of bail here is ensuring you return to court. Judges are not permitted to set bail based on whether they think you’re dangerous. The legislature rejected a dangerousness standard when it codified the bail laws in 1971, and that framework survived the 2019 reform and every amendment since.
Under CPL 510.30, when a qualifying charge puts bail in play, the judge must consider:
- Your activities and community ties, including employment, family, and how long you’ve lived in the area.
- The charges against you and the weight of the evidence.
- Your criminal record, especially any history of failing to appear.
- The potential sentence, since harsher punishment can create more incentive to flee.
The 2022 amendments added three more factors: whether you allegedly caused serious harm to a person or group, whether you have a history of violating orders of protection, and whether you have a history involving firearms. These don’t create a dangerousness standard on paper, but they give judges data points that in practice correlate with public safety concerns.
In 2023, lawmakers removed the requirement that judges pick the “least restrictive” securing order available. Under the original 2019 law, if supervised release would do the job, the judge had to choose that over cash bail. That guardrail is gone, and judges now have wider latitude within the qualifying-offense category.
How the Qualifying List Got Here
The current list is the product of four rounds of legislation, and search results will pull up older versions of it. A quick timeline helps sort out what’s still accurate.
The 2019 reform, effective January 2020, eliminated money bail for roughly 90 percent of arrests, created the qualifying/non-qualifying framework, and limited bail to a short list of serious offenses. The 2020 amendments, passed in the state budget that April, significantly expanded the qualifying list, adding sex trafficking, domestic violence strangulation, second-degree burglary of a dwelling, first-degree drug offenses, hate crime assault, aggravated assault on a child under 11, and several others. The 2022 amendments added weapons offenses and the new factors described above, and clarified that “harm to an identifiable person or property” includes theft and property damage. The 2023 changes removed the least-restrictive-means requirement without adding dangerousness as a bail factor.
If you’re reading an article from early 2020, it’s probably missing about half the current qualifying offenses.
Losing Your Release: Revocation and Bail Jumping
Bail conditions aren’t locked in. Under CPL 530.60, the prosecution can ask the court to revisit your securing order at any time, and a judge can act on their own. For good cause—a new arrest, contact with a witness you were ordered to avoid, or violating any condition the judge originally set—the court can revoke your release and impose stricter conditions, including remand.
Missing a court date carries its own consequences beyond losing your bail money. It’s a separate crime in New York:
- Bail jumping in the third degree. Failing to appear on any criminal charge and not voluntarily returning within 30 days. Class A misdemeanor, up to one year in jail.
- Bail jumping in the second degree. Same conduct where the underlying charge is a felony. Class E felony, up to four years in prison.
Beyond the new charge, the court can issue a bench warrant, revoke your release, forfeit cash bail, and make a third party or insurance company that posted a bond liable for the full amount. The 30-day window matters: if you turn yourself in within it, you avoid the bail jumping charge itself, though the judge will almost certainly tighten your conditions going forward.