Failure to appear for a court appearance in a criminal case in New York can result in a bench warrant for your arrest, an additional criminal charge (and a separate, additional jail or prison sentence) for the offense of bail jumping or failure to respond to an appearance ticket, and forfeiture of any bail posted before the failure to appear. New York provides a thirty-day grace period after a court date before a bench warrant will be issued or the defendant charged with bail jumping or failing to respond.
A bench warrant directs the police to arrest you and bring you before the court. When police arrest a person for failure to appear, the person typically will be taken to jail and held there until the judge is available for a hearing.
When police arrest a person for a non-felony offense in New York, the officer can serve the person with an appearance ticket directing the person to appear for court. The officer can require the person to post pre-arraignment bail. If the person fails to appear for court as directed, the court can issue an bench warrant and charge the person with the offense of failing to respond to an appearance ticket. This offense is considered a “violation” in New York. A violation is similar to a misdemeanor. It is a non-felony crime other than a traffic infraction, punishable by up to fifteen days in jail. (N.Y. Penal Law, art. 215, §215.58, art 70, §70.15.)
A person arrested or formally charged with a crime and released after posting a bond or on his own recognizance (based on a promise to appear) must appear for all court dates such as arraignment, hearings, trial, and sentencing. When defendants do not appear for a court date, the judge can issue a bench warrant for their arrest and charge them with the crime of bail jumping in the first, second, or third degree.
Bail jumping in the first degree in New York is the offense of failing to appear in a case in which the person is charged with a Class A or Class B felony (including murder, terrorism, kidnapping, rape, assault with a deadly weapon, drug trafficking, conspiracy, bribery, and grand larceny burglary, robbery, and drug trafficking). Bail jumping in the first degree is a Class D felony, punishable by up to seven years imprisonment and a fine up to $5,000. (N.Y. Penal Law, art. 215, §215.57, art. 70, §70.00(2)(d) and (4), and art. 80, §80.00.)
Bail jumping in the second degree is the offense of failing to appear in a case in which the person is charged with any pending felony. Bail jumping in the second degree is a Class E felony punishable by up to four years imprisonment and a fine up to $5,000. (N.Y. Penal Law, art. 215, §215.56, art. 70, §70.00(2)(e) and (4), and art. 80, §80.00.)
Bail jumping in the third degree is the offense of failing to appear in any criminal action or proceeding, including a case in which the person is charged with a misdemeanor or violation, or a probation violation. Bail jumping in the third degree is a Class A misdemeanor punishable by imprisonment for up to one year or probation for three years, and a fine up to $1,000.( N.Y. Penal Law, art. 215, §215.55, art. 70, §70.15, and art. 80, §80.05.)
A person charged with bail jumping or failure to respond to an appearance ticket in New York has a defense if the failure to appear was “unavoidable and due to circumstances beyond the his control.” But the person must show that his failure to appear on the specified date and during the thirty days after that date was unavoidable, and that after thirty days expired, he either appeared before the court voluntarily as soon as he was able, or was unable to appear. A reasonable defense for failure to appear would include a motor vehicle accident, hospitalization, illness, a death in the family, the defendant’s car breaking down on the way to court, being in jail in another location, or the court failing to give notice or accurate notice of the court date.
An arrest warrant for failure to appear allows the police to take you into custody anywhere, at any time. The police can come to your home, your work or place of business, or a social event and arrest you. You also can be arrested if a police officer discovers the warrant during a traffic stop for a minor traffic violation.
If the court does not consider your failure to appear unavoidable or due to circumstances beyond your control, and you posted a bond to get out of jail, the court can forfeit your bond. This means that the court will keep the bond and the money will not be returned to you. If you are convicted of bail jumping, proof of that crime can be presented in the underlying felony case as proof of consciousness of guilt. The prosecutor can argue that you did not appear for court or absconded because you know you are guilty of the original crime.
Because of the 30-day grace period in New York for failure to appear, it is important to address a failure to appear as soon as you are aware you have missed a court date. If you fail to appear for court or learn that a court has issued a bench warrant for your arrest for failure to appear, you should contact an attorney immediately for legal advice. An experienced criminal defense attorney can advise you on how to proceed, contact the court on your behalf, and assist you in preparing a defense or addressing sentencing if you are formally charged with bail jumping or failure to respond to an appearance ticket.