Contrary to what I have heard among fellow defense attorneys (and what some may consider “common sense”), bail jumping is not a continuing crime. Understanding how bail jumping charges are subject to statute of limitations considerations is crucial to protecting rights and assessing leverage in plea negotiations.
What is Bail Jumping?
Bail jumping occurs when a person is released from custody on bail, or on their own recognizance, upon the condition that they will return to court, and they do not appear on the required date or voluntarily within thirty days thereafter.[1] There are three degrees of bail jumping, all of which relate to the underlying charge [2]:
- Bail Jumping in the First Degree is a class D felony and requires that the underlying charge(s) be a class A or B felony.
- Bail Jumping in the Second Degree is a class E felony and requires the underlying charge(s) be any felony.
- Bail Jumping in the Third Degree is a class A misdemeanor and requires the underlying charge(s) be any criminal charge.
There is no culpable mental state required to prove bail jumping (however, this will be discussed further below).
Bail jumping is a separate and distinct charge to those pending against a person; meaning, even if a defendant successfully defeats the underlying charges, bail jumping charges can still be filed.[3] This is partially why an otherwise unprovable case is subject to the leverage of a provable bail jumping charge. Not only that, but a conviction for bail jumping, and any underlying offense, requires the judge to run the sentences consecutively. The requirement for consecutive time can lead to significantly more jail exposure for a client. A judge can avoid the consecutive sentence requirement if mitigating circumstances exist that bear directly upon the manner in which the crime of bail jumping was committed.[4] If a court finds these mitigating circumstances, the court must make a “statement on the record of the facts and circumstances upon which such determination is based.”[5]
Statute of Limitations
Bail jumping is NOT a continuing offense that can be brought against a person many years into the future. Of great significance is the fact that once the 30-day period passes, the crime is complete, and the statute of limitations begins to run.[6] Prosecution for Bail Jumping in the First and Second degrees must be commenced within five years.[7] Prosecution for Bail Jumping in the Third Degree must be commenced within two years.[8] Prosecutors will sometimes try to “convince” a defendant, through his attorney, that a defendant should take a guilty plea to a crime because he failed to appear several years ago and is therefore subject to a potential bail jumping charge. Not so fast, prosecutor! Unless the bail jumping charges were filed before the statute of limitations expired, the threat of bail jumping charges is baseless.
Defending and Avoiding a Valid Charge of Bail Jumping on the Merits
A bail jumping charge is generally “completed” 30 days after a missed court date. Bail jumping charges can be avoided by voluntarily returning your client to court within 30 days of the missed court date. This may already be necessary to vacate an outstanding warrant as well. It is also equally important to note that if a defendant’s appearance is excused (or “waived”), then the 30 day period does not begin to run.[9] For example, if the defendant is required to appear on April 1st and the judge issues a warrant but stays the execution until May 5th, the 30 day period begins to run on May 5th and the crime is completed 30 days after May 5th. Moreover, while bail jumping is a strict liability offense, a defendant must be made aware of the conditions of release, including the fact that the defendant is required to appear on a future date, but not specifically told about new charges for bail jumping.[10]
Affirmative Defense
There is also an affirmative defense to bail jumping beyond the voluntary return within 30 days as mentioned above. A defendant bears the burden of proof by a preponderance of the evidence for the affirmative defense. The defendant must prove that the defendant’s absence was unavoidable and due to circumstances beyond the defendant’s control and that during the period extending from the expiration of the 30 day period to the commencement of the action, the defendant either: (1) appeared voluntarily as soon as he/she was able to do so, OR (2) although he/she did not appear, such failure of appearance was unavoidable and due to circumstances beyond the control of the defendant (i.e., re-arrested and in jail in another county, state, etc.).[11] The affirmative defense only applies to the time period during which the crime was completed and the charge was filed.[12] The affirmative defense does not apply to the entire time the defendant failed to appear in court.
Conclusion
Bail jumping is not a crime that continues throughout the duration of a defendant’s absence. Charges must be filed within the statute of limitations. If not, the threat of bail jumping charges is meritless. The takeaway: don’t let a dead case be used as leverage to force a guilty plea.
[1] See, New York Penal Law §§ 215.55 (A-misdemeanor), 215.56 (E-felony), and 215.57 (D-felony).
[2] Id.
[3] See, People v. Eiffel, 81 NY2d 480 (1993) (Defendant was indicted for a class B-felony, released from custody and never reappeared in court. The trial went forward in the Defendant’s absence and the Defendant was acquitted on all felony charges and convicted on one A-misdemeanor charge. However, the Defendant was later indicted for D-felony bail jumping in the first degree); People v. Holcombe, 89 AD2d 644 (3rd Dept. 1982) (Underlying charges dismissed but Defendant still prosecuted for bail jumping.).
[4] People v. Anonymous, 5 AD3d 112 (1st Dept. 2004) (finding the statutorily created discretion is limited and narrow)
[5] People b. Brabham, 15 NY3d 841 (2010)
[6] People v. Landy, 125 AD2d 703 (2d Dept. 1986)
[7] New York Criminal Procedure Law § 30.10(2)(b).
[8] New York Criminal Procedure Law § 30.10(2)(c).
[9] People v. Coppez, 93 NY2d 249 (1999).
[10] People v. Simpkins, 174 AD2d 341 (1st Dept. 1991) (Holding that the Defendant must be made aware that he is required to appear on a future court date); People v. Gilleo, 39 AD3d 560 (2d Dept. 2007)
[11] New York Penal Law § 215.59
[12] People v. McMillian, 174 AD2d 759 (2nd Dept. 1991) (Defendant failed to appear on July 21, 1982 and a trial was conducted in the Defendant’s absence and he was convicted. The Defendant was later indicted for bail jumping in October of 1982. The Defendant was arrested over five years later on November 4, 1987. The court held that the Defendant was required to show only that the Defendant’s failure to appear was unavoidable for the three month period prior to indictment for bail jumping, rather than for the full five years prior to the Defendant’s arrest for the same.)
