John J. Gilsenan is a criminal defense attorney with extensive trial experience as an Assistant Federal Public Defender and public defender in New York and Maryland state courts. His practice experience includes defending serious New York State gun and drug charges and federal criminal cases, including federal drug prosecutions, conspiracy cases, and firearms cases. This background gives him substantial experience with federal criminal defense, detention hearings, bail advocacy, and the differences between federal and New York State criminal practice.
Introduction
If you or a family member has been arrested in Rochester, New York, one of the first questions you may have is simple: Will I be released from custody while my case is pending?
The answer depends heavily on whether the case is being prosecuted in New York State court or federal court.
Although people commonly use the word “bail” to describe both systems, federal and New York courts use very different rules when deciding whether someone will be released before trial. For a person facing serious criminal charges, those differences can determine whether the person goes home after court or remains in custody while the case proceeds.
Understanding those rules—and speaking with an experienced Rochester criminal defense lawyer or federal criminal defense attorney as early as possible—can be especially important because decisions about pretrial release often occur at the very beginning of a criminal case. For people facing a federal investigation or federal charges, experienced federal criminal defense counsel can begin preparing for detention issues before the first major court appearance.
What Happens After a Federal Arrest in Rochester, NY?
Federal criminal cases arising in Rochester are generally handled in the United States District Court for the Western District of New York (WDNY). There are federal courthouses in Buffalo and Rochester, and some matters arising in Rochester or the surrounding area may be handled by judges sitting in Buffalo. Anyone facing federal charges should understand that federal criminal defense involves procedures and detention rules that differ significantly from New York State criminal practice.
After a federal arrest, the defendant ordinarily appears before a federal magistrate judge for an initial appearance. The defendant has a right to an attorney and is advised of the charges and important legal rights.
The court must also address whether the defendant will remain in custody or be released while the federal criminal case is pending.
But an important rule is sometimes overlooked: The government does not automatically have the right to seek federal pretrial detention in every criminal case.
Before a federal court can conduct a detention hearing, the government generally must establish one of the grounds authorized by 18 U.S.C. § 3142(f). Those grounds can include certain categories of serious federal offenses, a serious risk that the defendant will flee, or a serious risk of obstruction of justice or intimidation of a witness or juror.
This threshold can be extremely important in federal criminal defense. A federal criminal defense lawyer in Rochester, NY can examine whether the government is legally entitled to seek detention and, if a detention hearing is authorized, develop a release plan tailored to the client and the specific allegations.
Can a Federal Judge Detain Someone Because the Judge Thinks the Person Is Dangerous?
Federal law allows a court to consider danger to another person or the community—but only after the government has first crossed the legal threshold required for a detention hearing.
The United States Court of Appeals for the Second Circuit, whose decisions govern federal courts in Rochester and throughout New York, has repeatedly addressed this distinction.
In United States v. Watkins, a case arising from the Western District of New York, the Second Circuit explained that § 3142(f) acts as a gatekeeper. The government first must establish that the case qualifies for a detention hearing.
That means generalized concerns about dangerousness do not automatically authorize a federal detention hearing. Once the government satisfies the statutory threshold, however, the court may consider whether any conditions of release can reasonably protect the community and ensure the defendant's appearance in court.
What Does the Government Have to Prove at a Federal Detention Hearing?
A detention hearing does not simply ask whether releasing a defendant involves some risk. Federal law instead asks whether there are conditions or a combination of conditions that can reasonably assure the defendant's appearance in court and the safety of other people and the community.
When detention is based on risk of flight, the government must prove the necessary facts by a preponderance of the evidence. When detention is sought because the defendant allegedly presents a danger to another person or the community, the government faces the higher clear-and-convincing-evidence standard.
A federal criminal defense attorney may therefore focus not only on challenging the government's allegations but also on presenting a realistic release plan that addresses the court's concerns.
What Does a Federal Judge Consider When Deciding Whether to Release Someone?
Under 18 U.S.C. § 3142(g), federal courts consider several categories of information. These include the nature and circumstances of the alleged crime; the weight of the evidence; and the defendant's personal history and characteristics, such as family and community ties, employment, financial resources, residence, criminal history and previous record of appearing in court.
The court also considers the nature and seriousness of any alleged danger that release might present. Importantly, the question is not simply whether some risk exists. The court must consider whether that risk can reasonably be managed through conditions of release.
Depending on the circumstances, possible conditions can include supervision by Pretrial Services, travel restrictions, surrender of a passport, location monitoring, restrictions on contact with particular people, or other conditions designed for the individual case.
For someone searching for a federal criminal defense lawyer in Rochester, this is one reason contacting an attorney before the initial appearance or detention hearing can be important. Developing a workable release proposal may require gathering information about employment, housing, family support and other circumstances very quickly.
What Is the Federal “Presumption of Detention”?
Some federal criminal charges trigger what lawyers call a rebuttable presumption of detention. This can occur in many serious federal drug prosecutions and certain firearm-related prosecutions.
The phrase sounds intimidating, but it does not mean that detention is automatic.
A defendant can produce evidence supporting release, such as a stable residence, employment, family ties, a history of appearing in court, a proposed third-party custodian, medical circumstances, or specific conditions that could address the government's concerns.
Most importantly, the ultimate burden of persuasion remains with the government. So even when a presumption applies, a federal judge must still make an individualized decision.
How Is Bail Different in a New York State Criminal Case?
New York State takes a substantially different approach.
For a person arrested on state criminal charges in Rochester or Monroe County, the initial release decision ordinarily occurs at arraignment through what New York law calls a securing order.
Depending on the charge and circumstances, the court may release the person on their own recognizance, impose non-monetary conditions, set bail when authorized by law, or—in cases where New York law permits it—remand the person to custody.
One of the biggest differences between the federal and New York systems concerns dangerousness.
Can a New York Judge Set Bail Because Someone Is Considered Dangerous?
Generally, New York's ordinary bail inquiry is not based on generalized predictions of a defendant's danger to the community.
Instead, the traditional focus of a New York securing order is determining what level of control or restriction is necessary to reasonably assure that the defendant returns to court.
That is significantly different from federal law, which expressly permits consideration of community safety once the statutory requirements for a detention hearing have been satisfied.
There are separate New York procedures addressing particular circumstances such as witness intimidation and certain conduct occurring after release. But those rules should not be confused with a general power to impose bail simply because a court believes a defendant may be dangerous.
For anyone arrested in Rochester, this difference between New York bail law and federal detention law can have major practical consequences.
What Is a “Qualifying Offense” Under New York Bail Law?
New York bail reform created an important distinction between qualifying and non-qualifying offenses.
Whether an offense qualifies under CPL 510.10(4) can determine what options are available to the judge.
For many non-qualifying offenses, the normal choices are release on recognizance or release subject to non-monetary conditions. For qualifying offenses, additional options can become available, including authorized forms of bail and, when otherwise permitted by law, remand.
But there is another important point: The fact that bail is legally available does not mean that a judge is required to impose it.
The judge must still make an individualized decision about what is necessary to reasonably assure the defendant's return to court. A Rochester criminal defense attorney evaluating bail therefore needs to examine both the exact criminal charge and the defendant's individual circumstances.
Federal Drug Charges and New York Drug Charges Can Produce Very Different Bail Results
The contrast between the two systems can become particularly significant in drug cases.
Many serious federal drug charges can qualify for a federal detention hearing and can also trigger the federal rebuttable presumption. New York is different. Many state drug charges are non-qualifying offenses for purposes of bail.
As a result, two people accused of seemingly similar drug-related conduct could face dramatically different pretrial-release rules depending on whether prosecutors bring the case in federal court or New York State court.
This is one reason someone facing a federal investigation, federal drug charges, a federal conspiracy allegation, or a federal firearms case may want to speak specifically with a federal criminal defense attorney in Rochester, NY, rather than assuming that New York State bail rules will apply. Federal criminal defense requires familiarity with the Bail Reform Act, federal detention presumptions, the Western District of New York, and Second Circuit law.
Does New York Require the Judge to Explain a Bail Decision?
Yes. New York law requires an individualized determination concerning the degree of control or restriction necessary to reasonably assure the defendant's return to court.
The judge must also explain the basis for the decision on the record or in writing.
The Fourth Department—which hears appeals from Rochester and the surrounding Western New York region—has enforced this requirement. A judge should not simply announce a bail or remand decision without explaining why the selected securing order is appropriate.
Federal Bail vs. New York Bail: The Key Differences
Federal court: The government must first establish a statutory basis for a detention hearing. Once that threshold is met, the court may consider both risk of flight and danger to the community. Certain federal charges also carry a rebuttable presumption of detention.
New York State court: The ordinary securing-order decision focuses primarily on reasonably assuring the defendant's return to court. Whether the charged crime is a “qualifying offense” plays an important role in determining whether money bail or remand is legally available.
Both systems require individualized decisions, but they reach those decisions through significantly different legal frameworks.
What Should You Do After an Arrest in Rochester, NY?
The period immediately following an arrest can move quickly.
In a federal case, important decisions about detention may begin at the initial appearance. In a New York State case, the judge may make the initial securing-order decision at arraignment.
That means a defense attorney may have very little time to investigate the circumstances and present information supporting release.
Information concerning a defendant's residence, employment, family responsibilities, community connections, prior court appearances and proposed supervision plan may become important very early in the case.
If a loved one has been arrested, family members can help by gathering accurate information that defense counsel can evaluate before the release hearing.
Speak With a Rochester Criminal Defense Lawyer About Bail or Pretrial Detention
Being arrested does not mean a person will automatically remain in jail until the case is over.
Federal and New York law both provide procedures for determining whether a defendant can be released while criminal charges are pending. But the rules are different, and the outcome can depend on the charge, the facts of the case, the defendant's history and the release conditions that can be proposed.
If you are facing federal criminal charges in Rochester, a federal drug or conspiracy case, a federal firearms charge, a New York State felony or misdemeanor charge, a DWI arrest, or a serious state gun or drug charge, consulting a Rochester criminal defense lawyer with federal criminal defense experience early in the process can help you understand which bail rules apply and what can be presented to the court.
An attorney can also evaluate whether the government is legally entitled to seek detention, whether the charged offense is bail qualifying under New York law, whether a federal presumption applies, and what conditions could support a request for release.
About the Author
John J. Gilsenan has extensive criminal defense experience as an Assistant Federal Public Defender and state public defender. He has represented clients facing serious state gun and drug charges as well as federal drug, conspiracy, and firearms prosecutions. His experience includes federal criminal defense and pretrial detention litigation in federal court, along with serious felony defense in New York State courts.