Opinion
15856/03.
Decided April 16, 2004.
Hon. Dennis Dillon, District Attorney, Mineola, NY, for The People.
Steven J. Gaitman, Esq., Uniondale, NY, for the Defendant.
This bailbondsmen's motion for an order, pursuant to CPL § 540.30, for remission of the forfeiture of bail, poses the issue of the standard to be applied where a defendant absconded, the bail has consequently been forfeited, but the bailbondsman apprehended and surrendered the defendant prior to the People's case suffering any prejudice.
Initially, this Court denied the application. The Court stated:
The moving papers do not contain proof that "a remission is justified by exceptional circumstances and that there is no loss of rights or prejudice to the People." People v. Public Service Mut. Ins. Co., 43 A.D.2d 963, 352 N.Y.2d 209, 211 [NYAS (2nd Dep't 1974] aff'd by 37 N.Y.2d 606, 376 N.Y.S.2d 421 [1975]). Absent such proof, the application must be denied. In this case, the moving papers provide no excuse whatsoever for the defendant's nonappearance in court.
This Court will treat the present application as one for renewal even though not labeled as such (CPLR § 2221[e][1]). Renewal is granted. ( Matter of Indemnity Insurance Company of North America v. People, 133 A.D.2d 345, 519 N.Y.S.2d 244 [2nd Dep't 1987]). On renewal the motion is granted.
While the private vigilante/bounty hunting system has been seen as redolent of the wild west, and sometimes viewed as an "anachronism in the criminal process" ( see, Matthew L. Kaufman, Note, An Analysis of the Powers of Bail Bondsmen and Possible Routes to Reform, 15 N.Y.L. Sch. J. Hum. Rts. 287 [1999]), it is also the case that New York's statutory scheme recognizes that "[t]he modern commercial bail bondsman is performing a service that is vital to our system of criminal justice." Kaufman Note, supra, at 321.
New York Criminal Procedure Law § 530.80 permits a bail bondsman to surrender a defendant for whom he has posted bail, to the Sheriff or to the court, and thereby obtain exoneration of the bail. Subsection (2) Section 530.80 provides:
For the purpose of surrendering the defendant, an obligor or the personwho posted cash bail for the defendant may take him into custody at any place within the state, or he may, by a written authority indorsed on certified copy of the bail bond, empower any person over twenty years of age to do so.
Bondsmen and the bounty hunters they deputize are therefore, although private citizens, see Perez v. Reno, 2000 WL 686396, at *4 (S.D.N.Y.), authorized to apprehend and take defendants out on bail into custody. See, Saladino v. Stuyvesant Insurance Company, 39 A.D.2d 765 (2nd Dep't 1972); Kaufman Note, at 287. See also, e.g., 8 C.J.S., Bail § 139 (2003) ("The bail[bondsmen] or their agent may arrest the principal wherever he may be found for the purpose of surrender. . . ."); 8A Am.Jur. 2d, Bail and Recognizance § 80 (2003) ("The sureties on a bail bond are generally entitled to take the principal into custody for the purpose of surrendering him or her in exoneration of their liability. In this regard, generally, the surety on a bail bond may, at his discretion, apprehend and surrender the defendant. . . ."); Todd C. Barsumian, Bail Bondsmen and Bounty Hunters: Re-Examining the Right to Recapture, 47 Drake L. Rev. 877 (1999).
Section 540.30 of the New York Criminal Procedure Law provides that, with respect to an application for the remission of the forfeiture of bail, "[t]he court may grant the application and remit the forfeiture or any part thereof, upon such terms as are just."
In People v. Fiannaca, 306 N.Y. 513, 516-517 (1954), the Court of Appeals explained:
When the statute was first passed in its present form, this was taken to give the courts a 'discretion almost absolute.' [citation omitted].
But, with time and cases, standards developed, the courts tending to apply one set of criteria where the defendant ultimately put in an appearance and another where he did not. Where a defendant is produced within a reasonable time after forfeiture, a remission will be granted if the People have not lost any rights as a result of his nonappearance especially if his failure to appear was other than deliberate and willful.
In People v. Manufacturers Casualty Insurance Co., 208 Misc. 504, 506 (Co. Ct., Kings Co. 1955), the Court further explained:
Was the failure to appear deliberate and wilful? That determinationshould be a major inducing consideration to granting relief but not absolutely essential to the exercise of the Court's discretion.
An equally important consideration is whether the surety has expended money and effort to produce the defendant and whether the defendant was produced as a result of such efforts. Our experience has been that in the great majority of defaults it is the surety or bondsman whose efforts produce the defendant. . . . It is right and proper that the Court offer some inducement to the surety.
As noted in Fiannaca, the surety's return of the defendant will be considered a major factor where a relatively brief period has passed before the defendant's surrender, so that the People have not lost any rights. People v. Public Service Mutual Insurance Co., 39 Misc.2d 488, 494-495 (Sup.Ct., Kings Co. 1963); People v. Manufacturers Casualty Insurance Co., supra, 208 Misc. 2d at 505.
In the instant case, the surety was notified by the People of the defendant's default a little less than two months after it occurred, and a month and a half after the order of forfeiture. Within five days thereafter, the surety apprehended the defendant and surrendered the defendant before Judge Calabrese in Nassau County Court.
The People have not asserted that their case has been prejudiced in any way, but allege only that the surety has not shown that the defendant's original default was not willful. This, however, is not the sole standard to be utilized in a case involving a defendant apprehended and surrendered by the surety within a reasonable period following the default and forfeiture.
CPL § 540.30 provides that an application for remission of forfeiture "may be granted only upon payment of costs and expenses incurred in the proceedings for enforcement of the forfeiture." The People are directed to provide the surety with a bill of costs and expenses. The surety's motion is granted, conditioned upon payment of the same.
So Ordered: