What Is A Surety Hearing (Known As Bail Sufficiency Hearing)?

An observer at a New York City criminal court arraignment may hear a judge set bail in a certain amount and will then hear the judge say “and I am ordering a 72-hour surety.” Clients, their families, and defense attorneys are annoyed when they hear the judge order the surety because it means the defendant will likely have to stay in jail for at least another three days even though people can bail him out immediately. So what exactly is a surety?

New York Criminal Procedure Law Section 520.30 essentially states that the defendant has the burden of showing that the source of the money used to post bail is not derived from illegal activity. Basically, the government does not want drug money or other any other proceeds from illegal activity used to bail you out. A judge will therefore order a surety exam to determine whether the money in question is legitimately earned or obtained if it’s a drug case or some other profit motive criminal activity. The defendant then has to prove that the money is legitimate. But how exactly does the law work and why can an experienced New York City criminal defense lawyer help?

There are two things that a court will look at when determining whether the defendant has met his burden and has shown that the money used for bail is “clean.” They look at whether the person who provides the money used to bail out the defendant has a legitimate relationship with him and they look to see whether that person has a legitimate source of income or has the money legitimately. Basically, they don’t want some stranger coming in from Colombia that has no real relationship with the defendant showing up with $100,000 in cash to bail him out. They also don’t want that same mysterious stranger putting $100,000 into the defendant’s mother’s bank account the day after bail was set so she can bail him out. Of course this rarely, if ever happens, but courts are always on the lookout for this. So what’s important is that you don’t do anything that inadvertently looks suspicious while trying to bail someone out. The reason I say inadvertently is because family members of people recently arrested are constantly panicked and they engage in numerous financial transactions right before they are about to bail somewhat out because none of them are likely to have enough money alone. So for example, suppose bail is set at $100,000 and the defendant’s mom, his sister, and his wife all pool their money together and come up with $70,000. Then, they get a loan for $15,000. Then, they borrow another $15,000 from friends and family. Before they post bail, they put it all in one bank account and then withdraw the money and post bond. Now the court looks at this and sees a flurry of financial activity and it is difficult to determine whether the money is clean or not because it changed hands so many times (legitimately). So what can you do to satisfy the court?

The first thing you need to do is contact a New York City criminal defense lawyer. I obviously know this is something that as a NYC criminal lawyer, I would say. But this is one area of the law where you can be burned pretty badly if you’re careless. Not only can your loved one not be bailed out because a surety was rejected, but there’s no guarantee that the bondsman will give you your money back. So now, not only did you not get the person bailed out, but you lost all the money you had to do so. So you really need to be careful. And a lawyer that doesn’t really practice criminal law or is an idiot isn’t going to help either. So in the same way you wouldn’t operate on yourself if you needed surgery and you wouldn’t go to an eye doctor if you had heart issues, you need the right kind of lawyer who knows what he or she is doing.

Anyway, because by law the court gives the DA a chance to be heard on the bail source issue, the best thing to do is to get the DA to approve the bond before presenting it to the court. If the DA knows the money is legitimate, he won’t fight it, and your loved one may get out sooner than the 72 hours and without the need for a hearing. So step one is convince the DA that he can’t prevent you from winning the hearing.

How do you do that? You get financially responsible people to show they are financially responsible. Meaning they provide months of bank statements, years of tax returns, etc. You get all of that ready and you have your lawyer present the package to the DA. The DA will likely want to meet with you. Partly to see if the relationship between you and your defendant is legitimate, but mostly to get free “intel” on him that the DA can use for trial. This is another reason to have a lawyer ready.

So to summarize, anyone can bail out anyone. The closer the relationship the better. A mom posting bail is better than a really good friend who is better than an acquaintance (remember, they are looking for the mysterious Colombian stranger who doesn’t even know the defendant). After 72 hours, if the DA still isn’t satisfied, the people posting the bail then testify at a hearing and they show that their money and their relationship is legitimate. Then if the judge believes them, he lifts the hold and the defendant gets out. As an ancillary note, a 72 hour sureties (meaning the DA has 72 hours to take a position on bail before a hearing is ordered can be lowered to 48, but that’s a rarity).

If you or a loved needs help with regard to sureties, surety hearings, or bail, contact John Buza, an experienced New York City criminal defense attorney and former Manhattan Prosecutor immediately.