How to Qualify for an Appearance Ticket

Appearance Tickets are now mandatory in many cases.

How to Qualify for a (Desk) Appearance Ticket in New York under the 2020 Criminal Justice Reforms

By James Shalley

How Desk Appearance Tickets Used to be Issued

Until 2020, the decision to allow a given criminal case to start with a desk appearance ticket was largely left to the discretion of the police. Only misdemeanor offenses and E felony offenses were legally eligible for desk appearance tickets, but eligibility for a desk appearance ticket never used to mean that the police had to issue one.

Several factors led the police to refuse to issue appearance tickets, including simple policies against it in many cases. So entrenched were the police policies surrounding desk appearance tickets, that many NYPD officers and detectives believed that their policies equated to the law. I got into a lively debate with a Detective once who refused to believe that he had the power to issue a DAT to a person charged with an E felony. Even when I showed him the law, he refused to believe me.

All of this is changed.

How Mandatory Appearance Tickets Work Now (2020)

As of 2020, the police are now REQUIRED BY LAW to issue appearance tickets for most misdemeanors, and even most E felony offenses. (Felonies are graded from A to E, with E felonies being the least serious).

Rather than going through an exhaustive list of every eligible offense including obscure, rarely charged offenses, let me review some of the more commonly charged offenses that now qualify as mandatory desk appearance ticket offenses:

Petit larceny (PL 155.25) (A misdemeanor)
Criminal Possession of a Controlled Substance (PL 220.03) (A misdemeanor)
Theft of Services (PL 165.15) (A misdemeanor)
Criminal Possession of Stolen Property
Criminal Possession of a Forged Instrument

Eight exceptions to the mandatory appearance ticket law.

Despite some of the hysterical and false reporting about the changes to criminal law in New York in 2020, there are actually quite a few reasons why an otherwise “mandatory” appearance ticket can become discretionary with the police. In fact, the new law outlines a list of no fewer than eight exceptions, that can capture many of the most commonly charged offenses in New York City. Those exceptions in some cases relate to the accused and his or her previous experience with the court, or the accused’s physical or mental state, or some aspect of the case that requires immediate court intervention, such as the need for an order of protection.

Outstanding Warrant

First, the police are not required to issue a desk appearance ticket to anyone who has an outstanding warrant. If there is an outstanding warrant for a person’s arrest, it certainly stands to reason that a desk appearance ticket will not be issued.

prior, but concluded, warrant

Second, if the person has failed to appear in court proceedings at any time in the prior two years, a desk appearance ticket is not mandatory. Understand what this means. This means that the police will have the power to review a person’s court appearance history for the existence of prior warrants. This is the difference between an “open warrant” and a “closed warrant”. The first exception applies to people with open or active warrants. This second exception applies to people who may not have an open or active warrant, but who had warrants issued (and resolved) on a previous case within the last two years. Therefore, if a person on a previous case with the last two years failed to appear for a court date and the judge issued a warrant, this fact will disqualify a person from a mandatory appearance ticket situation, even though that person ultimately returned to court and settled the matter.

refusal to provide identification

Third, a person who refuses to cooperate by providing verifiable identity information and a method of contact will lose the mandatory appearance ticket designation. The statute specifically designates forms of identification that the police must accept, including a passport, a public benefit card, and a valid driver’s license.

crime against member of same family or household

Fourth, a person charged with any crime between members of the same family or household will not be eligible for mandatory appearance ticket. This exception should be thought of as largely the group of cases that might be considered “domestic violence” or “family violence” although it would apply to a variety of living situations and relationships beyond formal marriage and family.

sex offenses

Fifth, a person who is charged with a crime defined in PL 130 will not automatically receive an appearance ticket. PL 130 contains primarily sex offenses. This includes even the relatively low level “B” misdemeanor of sex abuse in the third degree (PL 130.55).

order of protection required

Sixth, if the circumstances are such that the police believe that there needs to be an order of protection issued, the accused will not automatically get an appearance ticket. This exception somewhat overlaps “crime between members of the household” exception, but should essentially be read to mean that virtually every ASSAULT IN THE THIRD DEGREE case will NOT be a mandatory appearance ticket situation. This exception could, under many circumstances, also remove trespass charges from mandatory appearance ticket status.

suspension or revocation of license possible

Seventh, if the charge is a type of charge that could permit the Court to suspend or revoke the accused’s driver’s license, an appearance ticket is not mandatory. Think DWI charges.

accused in medical or mental distress

Eighth, if the accused appears so “distressed” that he or she would face harm without immediate medical or mental health care, then mandatory appearance ticket would not apply. It is interesting to note, as an aside, that the standard involves an “immediate” need for care, which is “solved” by the new law by bringing the person to court for arraignment instead of to a hospital.

Station House Bail

In situations where police are not required to issue appearance tickets, the new law permits them to issue appearance tickets nevertheless, if they choose. In addition, the police are authorized in such cases to impose “station house” bail in limited amounts as an alternative to sending the person to court. Presumably, this would occur only in situations in which the accused indicates the ability to make station house bail. Someone unable to make station house bail would be taken to court where non-monetary bail conditions would likely be required. The new law fixes the maximum amounts allowed in this circumstance, and those amounts are based on the severity of the charges.

E felony: $750
A misdemeanor: $500
B misdemeanor or U misdemeanor: $250
“Petty Offense”: $100

The above amounts are the maximum per type of charge.

This provision of the law appears to be at odds with the abolition of money bail in just these sorts of cases. Nevertheless, it may continue to be the policy of NYPD not to engage in the practice of station house bail, so while authorized, the reality may be that in New York City, people will either get an appearance ticket or be put through the system, and there will not be this third possibility.

Outside of NYC, in Nassau County and in Westchester County, for example, station house bail has been in more frequent use. Further, I would imagine that once the person makes it to Court for the first time, that the Court will release the station house bail back to the defendant, given that monetary bail will generally be illegal while the case proceeds in Court.

The Actual Wording of the New Law in Terms of Mandatory Appearance Tickets

Whenever a police officer is authorized pursuant to section 140.10 of this title to arrest a person without a warrant for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he shall, except as set out in paragraph (b) of this subdivision, subject to the provisions of subdivisions three and four of section 150.40 of this title, instead issue to and serve upon such person an appearance ticket.

The new law makes an offense eligible for mandatory appearance ticket by defining what ISN’T eligible for mandatory appearance ticket. First, eliminate all felonies but class E felonies. Then specifically eliminate the following class E felonies…

Rape in the Third Degree
Criminal Sexual Act in the Third Degree
Escape in the Second Degree
Absconding from temporary release in the first degree
Absconding from a community treatment facility
Bail Jumping in the Second Degree

and then remember the eight exceptions discussed above that apply to misdemeanors and E felonies that would otherwise require mandatory appearance tickets.

Summary of NON-MANDATORY APPEARANCE TICKET

The following offenses are common examples of NON-MANDATORY APPEARANCE TICKET charges (in other words, the following offenses will not automatically get appearance tickets):

Rape in the Third Degree
Criminal Sexual Act in the Third Degree
Escape in the Second Degree
Absconding from temporary release in the first degree
Absconding from a community treatment facility
Bail Jumping in the Second Degree
Most Assault in the Third Degree cases (because orders of protection are possible)
Most DWI related cases (because suspension or revocation of license is possible)
Many Vehicle and Traffic Law (because suspension or revocation of license is possible)
Sex offenses

What if a Person Doesn’t Qualify for Mandatory Appearance Ticket?

A person who is found ineligible for an appearance ticket will either be given station house bail and released or put “through the system” for arraignment within 24 hours, unless the police choose to issue an appearance ticket in their discretion.

At arraignment, for those “put through the system” the Judge will decide what conditions, if any, will be set on the accused in order to get the accused to return to court. Under the new rules of the bail reform law, old-fashioned “monetary conditions” (bail) is either not allowed at all, or is a type of condition of last resort after the Court makes a very particular finding. Most people, especially people who were in the ballpark of getting an appearance ticket, will be eligible for some form of “non-monetary” condition or release on recognizance (ror).

James Shalley has been practicing criminal defense in New York for more than 30 years.