Karine Gevorkyan, et al., Appellants,v.Ira Judelson, Respondent.BriefN.Y.June 1, 2017CTQ-2016-00004 @:ourt of �peal5' of the �tate of �etu !}ork KARINE GEVORKYAN, ARTHUR BOGORAZ, INNA MOLDA VER and SAM MOLDA VER, Appellants, - against - IRA JUDELSON, Respondent. ON APPEAL FROM THE QUESTION CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET No. 15-3249 BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANTS Brooklyn Defender Services 177 Livingston St., 7th Fl Brooklyn, NY 11201 Dated April 20, 2017 New York County Defender Servs. 225 Broadway,# 1 I 00 New York, New York 10007 The Bronx Defenders 360 East 161st Bronx, New York I 0451 Lisa Schreibersdorf, Esq. Executive Director Brooklyn Defender Services 177 Livingston St., ?1h Floor Brooklyn, NY 11201 Tel.: 646-787-3355 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ ................. .......... .ii STATEMENT OF INTEREST . ...... ....................... . ................................ l PRELIMINARY STATEMENT ....... .. .......................... ...................... l ARGUMENT ............................................................................. .4 I. The Court of Appeals Should Interpret the Relevant Statutes to Adequately Protect Defendants From Bail Bond Agents' Abuses .... .4 II. This Court's Interpretation of the Law Regarding Bail Bond Premiums Must Guarantee Equal Access to Justice for All Defendants to Fulfill the Purpose of the New York Bail Statute and the State and Federal Constitutions .............................. ..... 10 III. This Court Should Exercise Its Authority To Clarify That Lower Courts Should Set Bond Only If the Defendant Can Afford to Post It and No Less Restrictive Conditions Suffice to Ensure Return to Court ................ ............................................... .14 CONCLUSION ................................... ........................................ 21 TABLE OF AUTHORITIES Cases Page(s) Bearden v. Georgia, 461 U.S. 660 (I 983) ................................................ 12 Commonwealth v. Ray. 435 Mass. 249 (2001) .......................................... 17 Gevorkyan v. Judelson, 841 F.3d 584 (2d Cir. 2016) ............................. passim Gevorkyan v. Judelson, No. 13-cv-08383 (S.D.N.Y. Sept. 30, 2015) .............. 5, 9 Griffith v. Illinois , 351 U.S. 12 (1956) .................................................... 12 People v. Fuller, 455 N.Y.S.2d 253 (1982) ............................................... 19 People ex rel. Klein v. Krueger, 25 N.Y.2d 497 (N.Y. 1969) ......................... 19 People ex rel. Lobell v. McDonnell, 296 N.Y. 109 (N.Y. 1947) ..................... 10 People ex rel. McManus v. Hom, 967 N.E.2d 671 (N.Y. 2012) ...................... 10 People ex rel. Mordkofsky v. Stancari, 460 N.Y.S.2d 830 (2d Dep't 1983) ......... 11 People v. Rezek, 204 N.Y.S.2d 640 (Kings County Ct. 1960) ........................ 11 Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) ..................................... 13 Sardino v. State Comm'n on Judicial Conduct, 58 N.Y.2d 286 (N.Y. 1983) ...... 11 Schilb v. Kuebel, 404 U.S. 357 (1971) ................................................ 9, 18 State v. Brown, 338 P.3d 1276 (N.M. 2014) ............................................ 16 Tate v. Short, 401 U.S. 395 {1971) .................................... ................... .12 United States v. Salemo, 481 U.S. 739 (1987) .......................................... 11 Williams v. Illinois, 399 U.S. 235 (1970) ................................................ 12 ii Statutes New York Insurance Law ("N.Y.l.L.") § 6802 .................................................................................. 8 § 6802(k)(l)-{6) ..................................................... ······ ............ 5 § 6802(k)(4) ........ ······ ............................................................. 9 § 6802(1) ............................................................................. 5, 9 § 6804 ............................................................................... .5, 7 § 6804(b) .. ········· ................................................................... 9 Criminal Procedure Law ("C.P.L.") § 180.80 ............................................................................ .5, 6 § 510.10 .............................................................................. 19 § 520 .............................................................................. passim § 520.10(1) ........................................................................... 11 § 520.10(2)(b) .................................................. ··········· ........... 11 § 520.20 ................................................................................. 2 § 520.30 ................................................................................. 2 Rules Maryland Rule 4-216.1 ..................................................................... 16 iii Court Orders Donya Pierce et al. v. City of Velda City, No. 4:15-CV-570-HEA 2015 WL 10013006 (E.D. Mo. June 3, 2015) (settlement order) .................................. 12 2017 Maryland Court Order 0001 ........................................................ 16 Legislative History N.Y. Legis. Assemb. A2142 Reg. Sess. 2013-2014 (2013) ........................... 16 N.Y. Legis. Assemb. A9506 Reg. Sess. 2011-2012 (2012) ......... .................. 16 N.Y. Legis. Assemb. A10564 Reg. Sess. 2009-2010 (2010) .......................... 16 Briefs & Court Filings Brief for New York Civil Liberties Union et al. as Amici Curiae, People ex rel. McManus v. Horn, 18 N.Y.3d 660 (N.Y. 2012) (No. 2012-0034) ............................................................................. 11 Brief for United States as Amicus Curiae Supporting Plaintiff-Appellee, Walker v. City of Calhoun, 2017 WL 929750 (11th Cir. 2016) (No. 16-10521-HH) ......................................................................... 12 United States Statement of Interest, Jones v. City of Clanton, 2015 WL 5387219 (M.D. Ala. 2015) (No. 2:15-cv-34) ...................................................... 12 Other Texts Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City (2010) .................... 12 Letter from the Attorney General of Maryland to the Office of Counsel to the General Assembly (Oct. 11, 2016) ........... ............................................. 16 iv Letter from Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Div., Dep't of Justice, & Lisa Foster, Director, Office for Access to Justice, to Colleagues 2 (Mar. 14, 2016) ................ ............ ......... .......... .......... 12 Mary T. Phillips, New York's Credit Card Bail Experiment, New York City Criminal Justice Agency Final Report (2014) ...... ...................... ... .... ...... 11 Vera Institute of Justice, Bail Bond Supervision in Three Counties: Report on Intensive Pretrial Supervision in Nassau, Bronx, and Essex Counties (Aug. 1995) ... .... ············· ...... . . ... . ... .... ...... ..... ..... . . . ........... .............. ... . ... 11 V CORPORATE DISCLOSURE STATEMENT Pursuant to New York Court of Appeals Rule of Practice 500.l(f), Brooklyn Defender Services, New York County Defender Services and The Bronx Defenders all state that these organizations are not-for profit corporations and have no parent, subsidiary or affiliate. XIGN'.3:ddV INTEREST OF AMICI BROOKLYN DEFENDER SERVICES AND NEW YORK COUNTY DEFENDER SERVICES Brooklyn Defender Services ("BDS") and New York County Defender Services ("NYCDS") are public defender organizations that represent indigent people who are accused of crimes and cannot afford an attorney. BDS represents approximately 40,000 indigent people each year and NYCDS represents approximately 21,000 indigent people each year. Our clients are subjected to abusive and predatory practices that include similar abuses to the ones challenged in the instant case. It is based on our first-hand experience representing indigent defendants navigating the bail system that BDS and NYCDS seek leave to proffer their perspective as amici curiae in support of Appellants, to urge this Court to adopt a rule preventing bond agents from keeping unearned fees and to provide guidance to the lower courts and enforcement agencies regarding the setting of bail and execution of bail bonds. INTEREST OF AMICUS THE BRONX DEFENDERS The Bronx Defenders ("BxD") is a nonprofit provider of innovative, holistic, client-centered criminal defense, family defense, civil legal services, and social work support to indigent people in the Bronx. The BxD staff of over 200 advocates represents approximately 35,000 individuals each year and reaches hundreds more through outreach programs and community legal education. More than 25,000 of the clients we represent each year are facing criminal charges and potential pretrial incarceration. BxD has filed amicus curiae briefs in numerous cases involving criminal justice and civil rights issues. STATEMENT OF INTEREST Statements articulating each organization's interest in the issues presented in this case are annexed hereto as an appendix. PRELIMINARY STATEMENT The question certified by the Second Circuit in this case presents an important opportunity for this Court to examine predatory practices of bail bond agents and the overuse of insurance company bonds even though less onerous options are appropriate and authorized by the bail statute. In this case, the bond agent's refusal to refund a substantial premium even though the court's ruling made it impossible for the bond agent to perform his duties under the bond is an unfortunate example of attitudes and practices that pervade and demean the criminal justice system. Throughout New York State, bond agents use a host of abusive practices to prey on those desperate to contest the charges against them from their homes, with their families and communities, not from a jail cell filled with violence and hopelessness. Abusive practices have flourished unchecked, and New York needs the guidance of its highest court concerning the legal boundaries of bond agents' conduct. In the absence of relevant case law, the Second Circuit has certified this question of first impression to the Court of Appeals, acknowledging its expansive 1 scope to address this and any other pertinent issue it chooses to explain in light of the existing "dearth of authority on nearly every aspect of New York bail bond law." Gevorkyan v. Judelson, 841 F.3d 584, 588 (2d Cir. 2016). We thus urge the Court to address the question presented in this case within its proper context-of widespread, unregulated, and predatory practices that deny indigent defendants equal protection under the law when they result in incarceration due solely to an individual's inability to pay. The Court should curtail the obviously abusive practices admitted to by the bail bond agent in this case; but further, it should provide clear guidance to lower courts, and unequivocal instruction to enforcement agencies charged with regulating New York's bail bond industry, to avoid and correct widespread bond agent abuses. New York law does not squarely address whether a bond agent may retain the entirety of a premium when the defendant is not released due to the failure of a bail source hearing or for any other reason. Id. at 587 (finding that neither Article 68 nor C.P.L. §§520.20 and 520.30 shed any light on the question of when the bond premium is actually earned or when, if ever, a premium paid to obtain a bond must be returned if the bond never serves the purpose for which the premium was paid). When the Legislature is silent on a particular issue, as here, this Court must rely upon the purpose of the governing statutes and the requirements of the New York and United States constitutions to resolve it. 2 Here, considering that the express purpose of the Insurance Law is to strike a balance between securing "compensation for bail bond agents" and "protect[ing] defendants and their families at a critical juncture in criminal proceedings," id. at 589, this Court must regulate bond agents' retention of premiums in a manner that protects defendants who are at the mercy of bond agents during the pendency of their cases to ensure equal access to justice and to guard against excessive bail conditions. As it is, defendants are hamstrung from complaining about any illegally obtained windfall out of fear that the bond agent will exercise his unfettered power to ship them back to pretrial detention. Neither the criminal court nor the Department of Financial Services ("DFS") oversees bond agents during the course of the criminal case. After the close of the criminal case, defendants are not entitled to a lawyer to regain ill-gotten windfalls. Illegal excesses escape review. This case seeking return of an illegally retained premium is the first and perhaps the only opportunity for this Court to address this particular abuse and the broader bond industry abuses that affect many thousands of New Yorkers. The purpose of bail is to allow all defendants, regardless of wealth, to answer their charges while at liberty. Amici urge the Court to view expansively the scope of its power in this case to instruct lower court judges to minimize the potential for bond agent abuses when setting bail. Judges should not set bail in the form of a bond unless they make a determination that the defendant can afford to 3 post bond and that no less restrictive condition, such as an alternative form of bail, will suffice to ensure her return to court. In addition, this court should review the legitimacy of delegating judicial authority to a for-profit entity that has unfettered power to add its own conditions of release and arbitrarily determine whether these conditions have been violated. ARGUMENT I. The Court of Appeals Should Interpret the Relevant Statutes to Adequately Protect Defendants From Bail Bond Agents' Abuses. The Criminal Procedure Law and Article 68 of the Insurance Law leaves the accused at the complete mercy of predatory and exploitative bond agents' practices, notwithstanding J udelson' s assertion that these statutes protect defendants from unscrupulous bond agents. C.f. Br. for Resp't at 9. The Court of Appeals should redress this imbalance by regulating the premiums retained by bail bond agents to fulfill Article 68's purpose of balancing "compensation for bail bond agents" with "protect[ion] of defendants and their families at a critical juncture in criminal proceedings." Gevorkyan, 841 F.3d at 589. Retaining unearned premiums is but one of many ways in which bail bond agents extort defendants' money and personal possessions without fulfilling their side of the bargain to obtain liberty for the accused, who are entirely dependent on their bond agents for their pretrial freedom. No guidance or adequate oversight mechanism exists in New York law to dictate just, fair and legal procedures for 4 bond agents to protect constitutional and consumer rights of the accused in this context. Article 68 theoretically confers upon DFS the authority to pursue disciplinary action against bail bond agents who engage in misconduct, see N.Y.I.L. § 6802(k)(l)-(6), (I), but, in our experience, DFS rarely disciplines bail bond agents for illegal and exploitative practices and never refers them to the District Attorney for criminal prosecution, as demonstrated by the scant record available in case law and Department of Insurance General Counsel opinions. 1 Judelson's retention of the premium in this case, even though he never assumed any risk, represents a standard practice in the bail bonds industry. In Judelson's own words, he has withheld premiums in 500 to 800 cases out of thousands when a defendant was not released from custody: e.g., when the defendant had a parole or immigration hold. Findings of Fact and Conclusions of Law at ,r 66, Gevorkyan v. Judelson, No. l 3-cv-08383 (S.D.N.Y. Sept. 30, 2015). In our experience, bail bond agents also intentionally delay posting the bond, even when the premium has been paid by the family, presumably hoping for release pursuant to C.P.L. § 180.80, and keeping the premium without posting a bond at Compare Attachment I (listing all 230 complaints DFS has received against bail bond agents) with Disciplinary Actions Portal, N.Y. Dep't of Fin. Servs., http://search.its.ny.gov/search?q=bail&btnG=Disciplinary+Actions&entqr=O&ud=l&sort=date: D:L:d I &output=xml _no_ dtd&oe=UTF-8&ie=UTF- 8&proxystylesheet=dfs _ da _frontend&site=dfs _ da _ collection&ulang=en&access=p&entqrm=0& wc=200&wc mc=l&filter=0. (last visited Apr. 17, 2017); See also Gevorkyan, 841 F.3d at 588 n. 7 (pointing out that no New York appellate court has analyzed or even cited N. Y.I.L. § 6804 ). s all.2 If this Court holds that this practice of withholding the premium is legal, bond agents would be perversely incentivized to execute agreements with defendants they consider likely to remain in custody, whether because they have reason to believe that the defendant's family would fail a bail source hearing or because they are aware of a person's undocumented status and may anticipate an immigration hold or any other impediment to release, such as a parole hold. In many of those situations, the bond agent is more savvy than our clients about whether the client is actually likely to be released, as details about holds and detainers are complex and confusing. In addition to retaining premiums without assuming any risk, bond agents perpetrate many other abuses against clients who are often hamstrung from vindicating their constitutional and consumer rights. Bond agents, like Judelson in this case, regularly charge premiums and compensation beyond the permissible statutory limit, do not return defendants' collateral at the conclusion of the case as required, execute illegal contracts with extra illegal fees and impossible conditions, and do not act to promptly to bail defendants out once bail is posted. Often, even after their families pay a premium to execute a contract with a bond agent, 2 C.P .L. § I 80.80 states that the defendant must be released on his own recognizance it; he has "been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty four hours" without either a disposition of the felony complaint or commencement of a hearing. 6 defendants remain in custody at Rikers for up to fourteen days. Moreover, bond agents use their excessive authority to re-incarcerate people yet keep the premiums they obtained. Defense counsel and the criminal courts overseeing bond proceedings are not able to "provide strong protection from an unscrupulous bond agent," as Judelson claims. Br. for Resp't at 9. Instead, our clients have no choice but to submit to bond agents' often illegal and unconstitutional demands to avoid having the bond agent demand they be returned to custody. We can find no record of any criminal court order demanding that bond agents return compensation in excess of that allowed by N.Y.I.L. § 6804 or that bond agents return collateral at the conclusion of the case. Defense counsel is usually afraid to challenge bondsmen abuses during the pendency of a criminal case because the bond agent has unfettered power to either refuse to post bond for the defendant or, if the defendant has been released, to arbitrarily decide that the defendant has violated the bond contract and ship the defendant back to pretrial detention. Many bond agents issue illegal contracts with extra-judicial conditions requiring, for example, that the defendant obey a curfew, agree to searches within his family's home at any time, or pay a fee-in violation of the statutory maximum prescribed by N.Y.I.L. § 6804-ifhe misses a phone call from the bond agent. See, e.g., Attachment 2 � 24 (sample contract with client). New York law does not regulate the content of bond 7 agents' contracts with defendants and bail bond agents have seized the opportunity to assert full control over defendants with no consequences or court oversight. 3 See N.Y.I.L. § 6802 (providing detailed licensing requirements but no regulation over the content of bond contracts). Once the case is over, defendants are not entitled to legal representation to challenge bail bond agents' collection of excessive fees, illegal contracts, or refusal to return collateral. In the case at bar, Mr. Bogoraz's family was able to afford to retain an attorney, but most New York defendants are indigent and do not have access to retained representation. Those who have limited funds often expend them for the premium, depleting any resources to contest the withholding of collateral, excess fees or premiums that should be refunded. Also, it is impossible for a pro se defendant or family to challenge bond agent abuses. Bond agents are not required by law to include any identifying information in the contract, such as their license information or DFS number, nor are they required to post information in any language besides English, all of which complicate amassing the necessary documentation to file a complaint with DFS. Because of defendants' limited access to remedies for abuses, this Court should provide greater oversight over bond 3 In this way, as argued in Section III, the discretion of bail bond agents impermissibly supplant judicial responsibility for bail conditions. 8 agents to promote fair and non-abusive practices without placing the entire burden of recovering illegal windfalls from bail bond agents on our indigent clients.4 Contrary to Judelson's assertion, DFS rarely investigates or disciplines bond agents, and has never referred these matters for criminal prosecution. C.f. Br. for Resp't 9-10. The case at bar is a perfect example. Here, in addition to withholding the premium, the District Court found that Judelson charged Appellants $300 above the legally permissible premium limit and, while the district court instructed him to return this $300 to Appellants, DFS did not revoke or suspend his license, charge him a fine or refer the matter to the District Attorney for criminal prosecution as authorized by statute. 5 Even when our clients are able to acquire all documentation necessary to make a formal complaint, DFS rarely takes action.6 Charging premiums in excess of those allowed by statute is an industry-wide standard in our experience-almost all of our clients that are able to afford a bond are illegally over-charged at least a few hundred dollars-and because DFS does not take action in response to such complaints and no private right of action exists 4 See,�, Schilb v. Kuebel, 404 U.S. 357, 359 60 (1971) (describing Illinois' bail system before reforms eliminated the practice of paying premiums to bail bond agents rather than to the courts, and noting that "[p]ayment of this substantial 'premium' was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bond agent, and that professional bond agent, and not the courts, exercised significant control over the actual workings of the bail system"). 5 See Findings of Fact and Conclusions of Law at ,r,r 73-75, Gevorkyan v. Judelson. No. 13-cv-08383 (S.D.N.Y. Sept. 30, 2015); N.Y.I.L. § 6802(k)(4), (l); N.Y.I.L. § 6804(b). 6 Compare Attachment I (listing all 230 complaints DFS has received against bail bond agents) with Disciplinary Actions Portal. supra at n.1. 9 for violations of Article 68, bond agents such as Judelson are able to consistently overcharge premiums and perpetrate other abuses with impunity. Our offices' experience and the record in the case law demonstrate that DFS' supervisory authority is woefully insufficient to protect our clients and their families from abusive bond agent practices. To strike the appropriate balance between securing compensation for bond agents and protecting defendants pursuant to the Insurance Law, this Court should act to prevent bond agents from illegally retaining premiums when the defendant has not obtained release as the first crucial step toward controlling the rampant abuses of the bond industry. II. This Court's Interpretation of the Law Regarding Bail Bond Premiums Must Guarantee Equal Access to Justice for All Defendants and Fulfill the Purpose of the New York Bail Statute. Allowing bond agents to retain premiums even when a defendant is not released from custody contravenes the statutory and constitutional purpose of bail, and would deprive indigent defendants of an equal opportunity to obtain pretrial release in violation of the Fourteenth Amendment's guarantees. The express purpose of bail is to enable the pretrial liberty of all defendants, regardless of their financial means.' For this reason, Article 520 authorizes multiple forms of bail 7 See People ex rel. McManus v. Hom, 18 N.Y.3d 660,665 (N.Y. 2012) ("[Article 520] was intended to reform the restrictive bail scheme ... in order to improve the availability of pretrial release ... Providing flexible bail alternatives to pretrial detainees-who are presumptively innocent until proven guilty beyond a reasonable doubt-is consistent with the underlying purpose of article 520."); People ex rel. Lobell v. McDonnell, 296 N.Y. 109, 111 10 other than cash and bond to fulfill its purpose of not conditioning liberty on the defendant's ability to pay money upfront.' The bail-setting court is thus obligated to tailor bail to the defendant's financial resources so as to set the minimum amount and form of bail necessary to ensure the defendant's return to court, and no more.' Despite the fact that Article 520 substantially expanded judicial options to allow constitutional tailoring of the bail forms and amount over 45 years ago, and the extensive research that indicates that alternative forms of bail yield equal or higher rates of return to court 1°, New York judges inexplicably and almost (N.Y. 1947) (recognizing the "right to freedom from unnecessary restraint before conviction."); United States v. Salerno, 481 U.S. 739, 755 (1987) ("In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."). 8 See C.P.L. § 520.10(1) (setting forth several less onerous forms of bail that do not require upfront cash payments to the court); C.P.L. § 520.10(2)(b) (stating that a court may designate different amounts of bail varying with the forms). 9 See Salerno, 481 U.S. at 754 ("When the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more."); Sardino v. State Comm'n on Judicial Conduct, 58 N.Y.2d 286,289 (N.Y. 1983) (stating that, when setting bail, the "only matter of legitimate concern" is "whether any bail or the amount fixed was necessary to insure the defendant's future appearances in court"); People ex rel. Mordkofsky v. Stancari, 460 N.Y.S.2d 830. 832 (2d Dep't 1983) ("(O]ne of several factors that the bail-setting court was required to consider in determining whether to admit petitioner's client to bail was his financial resources."); People v. Rezek, 204 N.Y.S.2d 640,643 (Kings Cty. Ct. 1960) ("Being presumed innocent, [a defendant] is entitled to release on bail in a sum which he can furnish .... This presents little difficulty for the wealthy; it presents considerable difficulty for the poor. The law does not favor the rich and discriminate against the poor. The law requires the court to consider the economic circumstances of the defendant in fixing bail."). 10 See Brief for New York Civil Liberties Union et al. as Amici Curiae at 18-19, People ex rel. McManus v. Horn, 18 N.Y.3d 660 (N.Y. 2012) (No. 2012-0034); MARY T. PHILLIPS, NEW YORK'S CREDIT CARD BAIL EXPERIMENT, NEW YORK CITY CRIMINAL JUSTICE AGENCY FINAL REPORT 2-3 (2014) (finding no significant impact on the failure to appear when using a credit card instead of other forms of bonds); VERA INSTITUTE OF JUSTICE, BAIL BOND SUPERVISION IN 11 uniformly neglect to consider non-monetary forms of bail. Instead, judges are firmly entrenched in the culture of setting bond over cash, as was the prevailing practice for the decades prior to the Legislature's amendments of the bail statute in 1971. This practice itself implicates 14th Amendment concerns. 11 The New York Judiciary's steadfast adherence to setting secured bond as the sole alternative to cash-only bail casts doubt upon our adherence to the Fourteenth Amendment because most indigent defendants do not qualify for a bond due to lack of access to collateral. In addition, if the accused loses the premium to a bond agent even when the accused is not released, the accused's friends and family are hindered from THREE COUNTIES: REPORT ON INTENSIVE PRETRIAL SUPERVISION IN NASSAU, BRONX, AND ESSEX COUNTIES 2-16 (Aug. ] 995); HUMAN RIGHTS WATCH, THE PRICE OF FREEDOM: BAIL AND PRETRIAL DETENTION OF Low INCOME NONFELONY DEFENDANTS IN NEW YORK CITY 51 57 (2010). 11 The United States Supreme Court has held that denying equal access to justice, particularly through incarceration, without consideration of ability to pay and possible alternatives to achieve a legitimate governmental interest, violates the Fourteenth Amendment. Griffith v. Illinois, 351 U.S. 12, 18-19 (1956). See also Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S. 395,398 (1971); Williams v. Illinois, 399 U.S. 235,244 (1970). This analysis applies to the bail context because defendants are presumed innocent and face deprivations of liberty if they cannot pay for their release. Brief for United States as Amicus Curiae Supporting Plaintiff Appellee, Walker v. City of Calhoun, 2017 WL 929750 at 12 ( I Ith Cir. 2016) (No. 16-10521-HH). The Department of Justice in Walker stated that "fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence." Id. at 18 ( citing Griffith v. Illinois, 351 lJ .S. 12 (1956) (plurality opinion)). See also United States Statement of Interest, Jones v. City of Clanton, 2015 WL 5387219 (M.D. Ala. 2015) (No. 2: I 5- cv-34); Donya Pierce et al. v. City of Velda City, No. 4:15-CV-570-HEA 2015 WL 10013006 at • 1 (E.D. Mo. June 3, 2015) (settlement order) ("No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond."); Letter from Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Div., Dep't of Justice, & Lisa Foster, Director, Office for Access to Justice, to Colleagues 2 (Mar. 14, 2016), available at https://www.justice.gov/crt/filc/832461/download. 12 being able to achieve the cash-only alternative. This is in sharp contrast to wealthy or middle-class defendants who are able to afford the cash-only alternative upfront or have access to additional funds should the premium be retained without release." The discriminatory effect of uniformly setting commercial bonds for almost all defendants would be immeasurably amplified if this court were to find that the premium was nonrefundable regardless of whether the defendant is released. For example, the bond posted for one of our clients failed a bail source hearing, not because the family obtained the money through illegal means, but because there were numerous contributors to the bond, many of whom were unavailable to testify in person. Defense counsel was thus unable to proffer sufficient financial documents regarding the source of these funds at the bail source hearing and asked that the judge exonerate the bond. If this Court were to hold that bail bond premiums were nonrefundable despite the defendant never having obtained release, then indigent families like this will have lost what they paid to the bond agent without receiving anything in exchange; while having no funds left for a second 12 See Pugh v. Rainwater, 572 F.2d I 053, 1057 (5th Cir. 1978) ("Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements."). 13 attempt to post bond. 11 Permitting bond agents to retain the premium would accordingly result in the unjustifiable incarceration of indigent people due solely to their inability to pay. III. This Court Should Exercise Its Authority To Clarify That Lower Courts Should Set Bond Only If the Defendant Can Afford to Post It And No Less Restrictive Conditions Suffice To Ensure Return to Court. In light of the known exploitative and predatory practices of the bail bonds industry, this Court should guide lower courts to set bail in the form of a commercial bond only if the court determines that the defendant can afford to post the bond, and that no less onerous conditions will suffice to ensure court appearances. Such guidance from this Court will clarify a constitutional bail practice that (I) does not incarcerate indigent individuals without meaningful consideration of their ability to pay; (2) requires analysis of whether there are alternative non-monetary methods of assuring the accused's appearance at trial and (3) does not cede judicial authority to tailor conditions of release to for-profit bond agencies. 13 Furthermore, a ruling in this case that allowed bond agents to keep the monies of family, friends, neighbors, fellow church members, employers, and other good Samaritans without any requirement that the defendant be released is another way in which the criminal justice system can appear rigged and unfair and would give free reign to bond agents to abuse their position in the criminal justice system to extract personal benefit from vulnerable families, all but guaranteeing that even more predatory practices will become just as routine as illegal premiums. 14 When ruling on this certified question, the Court of Appeals has the authority to clarify that lower courts should only set monetary bail (including bail bonds) when the defendant can afford to post it and when it establishes that an alternative form, such as an unsecured or partially secured bond or credit card bail, is insufficient to ensure his or her return to court. The Second Circuit, when formulating the certified question, did not "mean to limit the Court of Appeals to a narrow response. The certified question may be deemed expanded to cover any pertinent further issue that the Court of Appeals chooses to explain." Gevorkyan, 841 F.3d at 589. Here, expanding the scope of this Court's explanation is necessary to place its answer to the particular question certified into context: unearned premiums exist against a backdrop of insufficient bail bond industry regulations generally, and a dearth of legal authority and remedies specifically, thereby allowing bond agents' abusive practices, which have an unequal impact on the indigent and low-income accused. High courts in other jurisdictions have exercised their inherent authority in a number of ways to stem bond agent abuses and direct criminal court judges' money bail practices so that the amount and form set does not exceed the amount and form that the defendant can afford to pay. While abusive industry practices and the judicial preference for bonds-have been corrected most often by way of 15 rule-making and policy initiatives in these jurisdictions, the courts' approach to stemming known bond agent abuses is instructive here. The Maryland Court of Appeals, for example, without fully abolishing money bail, unanimously approved a rule change after a hearing and notice and comment directing judges not to set bail in an amount and form exceeding the defendant's ability to pay in response to the Maryland Attorney General's opinion finding unconstitutional the practice of jailing people based on their inability to post bail. 14 The New Mexico Supreme Court in 2014 held that the district court unlawfully set monetary bond exceeding the defendant's ability to pay when less restrictive non-monetary conditions of pretrial release were sufficient to assure that defendant was not likely to pose a flight risk. State v. Brown, 338 P.3d 1276, 1278 (N.M. 2014). The New Mexico Supreme Court had also previously engaged in judicial rulemaking to require judges to consider more factors when setting bail. Id. 14 See 2017 Md. Court Order 0001 ( ordering amendments to Md. R. 4-216.1 effective July 1, 2017); Letter from the Attorney General of Maryland to the Office of Counsel to the General Assembly 1-2 (Oct. 11, 2016), http://www.marylandattorneygeneral.gov/News%20Documents/Ru1es Committee Letter on Pr etrial Release.pdf ("Conditions of pretrial release must instead be the least onerous to reasonably ensure the appearance of the defendant as required ... [S]etting the bail in an amount not affordable to the defendant, thus effectively denying release, raises a significant risk that the Court of Appeals would find it violates due process"). Attorney General Frosh and the new Rule 4-216.1 also refers to the safety of the victim and the danger of the community but these are not legal factors in the New York bail statute. Legislation that would permit preventative detention whereby an arrestee could be detained pretrial in the interest of community safety and not merely to ensure appearance has been consistently rejected in New York. N.Y. Legis. Assemb. A2142 Reg. Sess. 2013-2014 (2013); N.Y. Legis. Assemb. A9506 Reg. Sess.2011-2012 (2012); N.Y. Legis. Assemb. A10564 Reg. Sess. 2009-2010 (2010). 16 at 1288. Here, too, the Court of Appeals can offer clear guidance to New York's bail-setting courts and urge constitutionally tailored practices that avoid abusive commercial bonds as a form of bail when a bond is a demonstrably unavailable means of release for a particular defendant. High courts in other jurisdictions have also exercised their authority to implement policies that minimize the potential for bond agent abuses. The Massachusetts Supreme Court, held in 2001 that the Massachusetts statute permits judges to set cash bail alternatives at ten percent of the bail bond in order to make cash bail equally accessible to defendants as commercial bonds and equally as effective at ensuring return to court. Commonwealth v. Ray, 435 Mass. 249, 258 (200 I). This practice, once it became widespread among Massachusetts judges, essentially eliminated the for-profit bail industry in Massachusetts. 15 The New York bail statute already includes this option, yet it is rarely utilized. The Court of Appeals should use its power to eliminate reliance on bail bonds for our clients by 15 In a previous effort to address the corruption in the Massachusetts bond agents system, the Massachusetts Supreme Court also ordered a pilot project to permit a defendant who was not eligible to be released on his personal recognizance to be released by depositing with the court a refundable amount of money equal to 5% of the face value of the surety bond he would otherwise have needed to secure. Id. at 254-55. The project was highly successful and resulted in a lower default rate for defendants released under these terms than defendants released under the commercial bond system, "presumably because the deposit was refundable." Id. at 255 (stating further that this practice led to its incorporation into the administrative regulations of the district courts). 17 requiring lower courts to consider the affordability and effectiveness of bond versus alternative and more equitable forms of release. The United States Supreme Court lauded a similar system in Illinois in which the bond surety was deposited with the clerk of the court pursuant to statute instead of with the for-profit bond agents, and decried the standard bond agent practice of retaining the entire premium even when the defendant fully satisfied the conditions of the bond. Schilb, 404 U.S. at 359-60. 16 In the current system, by routinely setting bail in the form of bond over cash for the vast majority of defendants subject to bail and failing to consider or utilize other appropriate options in the bail statute, such as an unsecured or partially secured bond, New York judges are failing to implement sections of the New York bail statute that require more constitutional tailoring than rote pronouncements of bond over cash. This Court should exercise its authority to implement measures to minimize bond agent abuses by instructing the judiciary to use those other methods of release. In addition, this Court should order lower courts to meaningfully review decisions of bond agents when they revoke bond as well as authorize return of 16 In Schilb, the Court explained: "Prior to 1964 the professional bail bond agent system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bond agent customarily collected the maximum fee ... and retained that entire amount even though the accused fully satisfied the conditions of the bond ... Payment of this substantial "premium' was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bond agent, and that professional bond agent, and not the courts, exercised significant control over the actual workings of the bail system." 404 U.S. at 359-60. 18 illegal premiums during the course of the case. By doing so, criminal defense counsel would be able to make arguments without fear of the client being remanded at the request of the bond agent and the acquiescence of the court. Courts should not delegate their duties to bond agents and should oversee (I) the legality of the premium; (2) the proper retention of the premium; and (3) the extra judicial conditions never passed upon by a court that are imposed on defendants at the cost of their liberty. The New York bail statute vests the criminal court with the authority and discretion to set bail in an amount and form tailored to the defendant's financial circumstances, and this function cannot be delegated to bail bond agents. 17 Just as a sentencing court cannot delegate its function to tailor a restitution order to a defendant's personal and financial circumstances to the probation department, see People v. Fuller, 455 N.Y.S.2d 253,256 (N.Y. 1982), the criminal court cannot delegate its function to set the conditions of bail to bond agents. In fact, once the court has delegated the conditions of release to the bond agent, it is likely that those conditions will be far more restrictive than necessary to ensure a defendant's return to court. Without any judicial oversight, bond agents will decide upon the 17 See C.P.L. § 510.10 ("When a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff."); People ex rel. Klein v. Krueger, 25 N.Y.2d 497,502 (N.Y. 1969) ("Within constitutional limits the nisi prius criminal court has the sole nonreviewable discretion to fix or deny bail."). 19 defendant's conditions of release, which are likely to be far more restrictive than necessary to ensure a defendant's return to court because a bond agent prioritizes his earnings over the defendants' liberty interest - a constitutional interest that the criminal court has the duty to protect. 18 This Court should thus strive in answering the question certified to drastically reduce reliance on insurance company bonds, mandate that courts set bail in the least restrictive amount and form necessary to ensure a defendant's return to court, and empower the lower courts not to delegate their responsibility regarding pretrial release conditions to bond agents. In light of rampant bond agent abuses, the lack of regulatory oversight over them, and the constitutional liberty issues at stake, this Court, in its explanation of this case, should take the opportunity to expand upon the limited issue of retaining premiums to other causes of concern regarding the bail bond industry, including delaying posting the bond, imposing unreasonable conditions and revoking bond. These practices exploit those individuals accused of crimes, particularly indigent and low-income defendants, and undermine the principles underlying the New York criminal justice system. 18 There is no evidence that curfews or other conditions imposed by bond agents increase the likelihood of return to court. Unlike supervised release programs which are based on analysis of data and evidence that supports the conditions of a particular defendant, bond agents' conditions are designed to make it more likely that the defendant will slip up and give the bond agent a reason to place the defendant back in custody. 20 CONCLUSION For the reasons stated, amici curiae Brooklyn Defender Services respectfully submits that this Court should answer the certified question in the negative to preclude a bond agent from retaining a premium where a bond posted is denied and the defendant is never admitted to bail and should also guide trial courts regarding the improper over-use of bail bonds, the requirement to utilize non-monetary forms of bail, the impropriety of delegating judicial authority to bond agents and empower courts to effectively monitor and oversee bond agent practices. 21 Dated: New York, New York April 20, 2017 Respectfu ly sub i)ted, ( / LISA SCHREIBERSDORF, Esq. Ashika David, Esq. Kathryn Lissy, Esq. Brooklyn Defender Services 1 77 Livingston Street, 7th Floor Brooklyn, NY 11201 Tel: (718) 254-0700 Fax: (718) 254-0897 NEW YORK COUNTY DEFENDER SERVICES 225 Broadway, #1100 New York, New York 10007 THE BRONX DEFENDERS 360 East 161 st Bronx, New York 10451 22 Attorneys for proposed amici curiae Brooklyn Defender Services, New York County Defender Services and The Bronx Defenders. Printing Specifications and Word Count Certification Pursuant to 22 NYCRR § 500.1 l(m) This computer-generated brief was prepared with a proportionally spaced typeface. Name of typeface: Point size: Line spacing: Times New Roman 14 Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, printing specifications statement, or any required addendum, is 5,856. Dated: New York, New York April 20, 2017 ?:::7 Lisa Schreibersdorf, Esq. I lN3WH:JV ll V CASE_ID CSB-2010 710959 CSB-2010 711101 CSB-2010 715284 CSB-2010-717410 CSB 2010-718442 CSB-2010 718753 CSB 2010 719584 CSB 2010 721446 CSB-2010-722275 CSB-2010-722607 CSB 2010 7226Sl CSB 2010 72S466 CSB 2010-726078 CSB-2010-730307 CSB-2010 732028 CSB 2010 735892 CSB 2010 73S894 CSB 2010 737124 CSB-2010 737241 CSB-2010-73840S CSB-2010 738470 CSB-2010 739604 CSB-2010 740001 CSB-2010-740389 CSB-2010-740616 CSB 2010 740619 CSB 2010 742179 CSB-2010-742784 CSB 2010-742995 CSB-2010-744114 CSB-2010-744195 CSB 2010 745447 CSB 2010 745492 CSB-2010 746273 CSB-2010-747577 CSB 2010 747693 CSB 2010-749543 CSB 2010 749716 CSB 2011-751337 CSB 2011 751523 CSB 2011 751912 CSB 2011 752475 CSB 2011 752925 CSB-2011-754642 CSB 2011-756197 CSB-2011-756627 CSB-2011-757184 CSB-2011 758291 CSB 2011-758580 CSB 2011 759818 CSB-2011-760648 CSB-2011 761181 CSB-2011-761797 CSB-2011 761825 CSB 2011-762045 CSB-2011-762875 CSB-2011-763615 CSB-2011-763840 CSB-2011 764398 CSB-2011-764706 CSB 2011 765203 CSB-2011 765650 CSB 2011 765965 CSB 2011-766074 CSB 2011 766873 CSB 2011 767157 CSB-2011-767321 CSB 2011 767368 CSB-2011-767962 RESP _NAME Steven B Levy KIM A PERS!NGER LEWIS A ULLA SPARTAN BAIL BONDS AGENCY INC ALLISON PALAIS SPARTAN BAIL BONDS AGENCY INC CUTTING EDGE BAILBONOS SPARTAN BAIL BONDS AGENCY INC ALLISON'S BAIL BONDS INC GEORGE ZOUVELOS Marvin Morgan EDWARD JR BOLLING SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC ANDREW O WRIGHT KISHA I DUNKLEY SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC AAA BAIL BONDS INC SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC KEVIN D BARNITT Ste11en B Levy GEORGE ZOUVELOS SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC JULISSA MINAYA SYNOPSIS Steven B levy is advertising in the Amherst yellow pages Stipul-1tion and revocation of ticense Affo1dahle Bails NY !nc. was in violation of section 6804 and 6802(kH4) Did not return money. Stip -md Pent1lty ($1500) was ;.;le1ced on Alison\ Sail Bonds /o1 accepting refer,·a\s from a Did not return money Did not return money Did not return money Over charged by $720.00/Was being threated by employees of Allison's Bail Bonds Revoked bail for his son out of revenge Did not return money Owner of AAA BAIL BONDS Inc. pied guilty to a felony for money laundering Stip for using an unlicensed business name Did not return money Intentionally revoke bail/commiting fraudulent acti11ities Application Resp recently arrested for purjury and fasifying documents. Did not return money Did not return money Did not return money Charged an eKtra premium/Fraudlent behavior Charged an eKtra $200 fee for no reason Did not want to return persons passport Did not want to return the deed to house Did not return money Application Unlicensed individual doing business Spartan Bail bonds request for termination with FC&S Financial Did not return money Nothing in the file/Closed Refused to refund the full amount of money KIM A PERSINGER Did not return money Iraida Calderon Agent was terminated from Empire Bail bonds LEWIS A LILLA Did not return money EMPIRE BONDING AGENCY BAIL BOND Did not return money DYANNE VASQUEZ Agent was operating under se11eral names FREEDOM BAIL BONDS LLC Company never sent the discharge of mortgages CHAD M SIMON KIM A PERSINGER ANTHONY P PALLONE GEORGE C ZOUVELOS HARRIS ROY BINDER KIM A PERSINGER Action Bail Bonds SPARTAN BAIL BONDS AGENCY INC GEORGE ZOUVELOS SPARTAN BAIL BONDS AGENCY !NC SPARTAN BAIL BONDS AGENCY !NC SPARTAN BAIL BONDS AGENCY INC GEORGE C ZOUVELOS LASZLO ROSNYOI SPARTAN BAIL BONDS AGENCY INC BAD APPLLE BAIL BONDS Michelle I Esquenazi SPARTAN BAil BONDS AGENCY INC AAA BAIL BONDS INC GEORGE ZOUVELOS KIM A PERSINGER SPARTAN BAIL BONDS AGENCY INC Action Bflil Bonds GEORGE C ZOUVELOS Vanguard Bait Bonds Agency tnc SPARTAN BAIL BONDS AGENCY INC AABLE BAIL BONDS (AABLE LLC) SPARTAN BAIL BONDS AGENCY INC Marvin Morgan SCHAFFER BAIL INC GEORGE ZOUVELOS SPARTAN BAIL BONDS AGENCY INC Did not return money Did not return money Did not return money Did not return money Application Application Unethical or illegal practices Did not return money Did not bail out boyfriend or return her money Did not return money Did not return money Has not gotten her money back a�er a year. Failure in the Surety bond to pay. Did not return money Did not return money Did not return money Accused of bribery in a Post article Refusing to return money to clients Fraudlent acts with other people's money Did not return money Did not return money Did not return money Admitted to violating NYS insurance laws. Paid $10K fin� Only received a partial refund of bai lmoney Only received a partial refund of bail money Did not return money 011er charged for services Refused to return money to client Too her money and never bailed out her son Did not return money Refused to return money and then only gave a partial return Did not refund money CSB-2011-768821 CSB-2011 769086 CSB-2011-769299 CSB-2011-774081 CSB-2011 774653 CSB-2011-778072 CSB-2011-779121 CSB-2011-780400 CSB-2011 780588 CSB 2011 781246 CSB-2011-781645 CSB--2011-783546 CSB 2011 783949 CSB 2011 785155 CSB 2011-785395 CSB-2011-787168 CSB 2011-789043 CSB 2011-789226 CSB-2011-791677 CSB-2011 795057 CSB-2011-795973 CSB-2011 796501 CSB-2012-0960616 CSB-2012-0960860 CSB 2012 0961081 CSB-2012-0962229 CSB 2012-0963181 CSB-2012-0963219 CSB-2012-0963279 CSB 2012 0963538 CSB 2012 0963850 CSB 2012 0964910 CSB 2012 0965855 CSB 2012-0965876 CSB 2012 0967862 CSB-2012-0968115 CSB 2012 0968938 CSB-2012-0969587 CSB-2012 0971572 CSB 2012 0972923 CSB-2012-0973854 CSB-2012-0974120 CSB 2012 0980338 CSB 2012-800421 CSB-2012-801362 CSB-2012 802580 CSB-2012 Dw CSB-2012-803286 CSB 2012-803451 CSB 2012-804012 CSB 2012-805082 CSB 2012-805803 CSB 2012 807162 CSB-2012-809396 CSB-2012-809988 CSB 2012 810798 CSB-2012 810887 CSB-2012-811212 CSB-2012 815322 CSB-2012 815520 CSB 2012 816679 CSB-2012-817389 CSB-2012-818041 CSB-2012-818247 CSB-2012 818559 CSB 2012 819028 CSB 2012-820406 CSB-2012 821829 CSB 2012 821860 CSB-2012-823243 CUSETOWN BAIL BONDS INC Michelle I Esquenazi BAD APPLE BAIL BONDS CORP SPARTAN BAIL BONDS AGENCY INC Michelle I Esquenazi LASZLO ROSNYOI GEORGE ZOUVELOS KIM A PERSINGER GEORGE ZOLIVELOS James L Feli)( LEWIS A LILLA George C Zouvelos Michelle I Esquenazi SPARTAN BAIL BONDS AGENCY INC AABLE LLC IRA JLIDELSON SALVATORE DI MISA George C Zouvelos American Liberty LLC WILLIAM J CIANCIOLA JR FREEDOM BAIL BONDS LLC SPARTAN BAIL BONDS AGENCY INC Iraida Calderon Andre U Hunter Marvin Morgan George C Zouvelos Julio C Pozo Teekesha M Davila George C Zouvelos FREEDOM BAIL BONDS LLC Vanguard Bail Bonds Agency Inc THOMAS J EVANGELISTA SPARTAN BAIL BONDS AGENCY INC CAPITAL BONDING CORPORATION George C zouvelos Freedom Bail Bonds LLC Big Trouble Bail Bonds Agency Inc Marvin's Bail Bonds George C Zouvelos George C Zouvelos Michelle I Esquenazi SPARTAN BAIL BONDS AGENCY INC Affordable Bails New York Inc SPARTAN BAIL BONDS AGENCY INC GEORGE ZOUVELOS Yohance A Perry LASZLO ROSNVOI SPARTAN BAIL BONDS AGENCY INC FREEDOM BAIL BONDS LLC LASZLO ROSNYOI Ira Judelson JASON S FORDtN GEORGE ZOUVELOS SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY JNC SPARTAN BAIL BONDS AGENCY 1NC tra Judelson SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC George C Zouvelos Fradulent activity Fraudlent activity Did not refund money Did not refund money Fradulent activity Did not return money or deed Refuse to refund money Refuse to refund money Refuse to refund money Never returned money/Intentionally returned to the incorrect attorney Fraudulent activity Did not refund money Did not refund money Did not refund money Did not refund money Bail not refunded Did not refund money or return house deed. Did not refund money Did not refund money Placing ads under an unlicensed business name. Did not refund money Did not refund money Did not refund money Receiving unemployment while working as a bail bond agent Judgment filed against around the clock bail for non refunded money Did not refund money Did not refund money or house deed Tax levy placed against a prior bail bond agent Did not refund money Accusations of mortgage fraud Fraudulent activity Overcharged and refusing to refund money Did not refund money placed judgment aBainst them Did not refund money Did not refund money Did not refund money Conducting business under an unlicensed name Did not refund money in full Did not refund money Did not refund money Did not refund money Never returned the deed to his home Only received a partial refund of money Did not refund money Charged extra fees that were not disclosed Did not refund money Still owed $370.00 Fraudulent activity Did not refund money Did not refund money Closed file/No conclusion Collected an additional $5,500 in fees Did not refund money Did not refund money Did not refund money Did not refund money requesting assistance in refund of the money paid to the agent did not returned money Did not refund money Did not refund money George C Zouvelos Did not refund money Wayne David Collins unlicenses entity doing bussiness in this state KIM A PERSINGER requesing a bail bond refund DYANNE VASQUEZ requesing a bail bond refund EMPIRE BONDING AGENCY BAil BOND requesing a bail bond refund George C Zouvelos Did not refund money George C zouvelos Did not refund money North River Insurance Company Pay Bail in NYC George C Zouvelos requesting assistance in refund of the money paid to the agent requesting assistance in refund of the money paid to the agent Did not refund money CSB-2012 823511 CSB 2012-823799 CSB 2012 824120 CSB-2013 0982786 CSB 2013 0984510 CSB-2013-0984 772 CSB-2013-0987591 CSB 2013-0988450 CSB 2013-0988460 CSB-2013 0989261 CSB 2013-0992728 CSB-2013-0992776 CSB-2013-0992872 CSB-2013-0993248 CSB-2013 0994278 CSB 2013-0995045 CSB-2013-0997182 CSB-2013 0998337 CSB-2013 100083S CSB 2013-1002S98 CSB-2013-1002688 CSB-2013-1002807 CSB 2013-1003480 CSB-2013-1005083 CSB-2013-1008510 CSB-2013 1008624 CSB-2013 1009630 CSB-2013 1010035 CSB-2013 1012441 CSB 2013 1012620 CSB-2013-1013174 CSB-2013-1013839 CSB-2013 1014301 CSB-2013 1014309 CSB 2013 1014312 CSB 2013 1015057 CSB-2013-1015339 CSB-2013-1017359 CSB-2013-1017S81 CSB-2013 1018345 CSB-2013-1018734 CSB-2013-102.3636 CSB 2013 1025034 CSB-2013 1026815 CSB-2013-1026963 CSB-2013-1028015 CSB 2014 1034422 CSB-2014-1036177 CSB-2014-1038429 CSB-2014 1039816 CSB-2014-1041628 CSB-2014-1047447 CSB 2014 1048772 CSB 2014 1049521 CSB 2014 1054968 CSB 2014 1058765 CSB 2014 1059318 CSB-2014 1059558 CSB-2014 1060623 CSB-2014-1061322 CSB 2014 1062260 CSB 2014 1067227 CSB-2014-1069454 CSB-2014-1070728 CSB-2014 1071138 CSB-2014-1071256 CSB 2014 1073144 CSB-2015 1079099 CSB-2015-1079490 CSB 2015 1080217 Norair Seferian Bails Inc. Ira Judelson SPARTAN BAIL BONDS AGENCY INC SPARTAN BAIL BONDS AGENCY INC Vanguard Bail Bonds Agency Inc Vanguard Bail Bonds Agency Inc Laszlo Rosnyoi George C Zouvelos George C zouvelos George C Zouvelos Bail Bonds, LLC George C Zouvelos Evelyn J Ceballos Dolores Gist GEORGE E GARMON George C Zouvelos Allison's Bail Bonds Inc George C Zouvelos Steven Zalewski Affordable Bail Bonds refusing to issue refund discrepancy in signing papers requesting assistance in refund of the money paid to the agent requesting assist.ince in refund of the money paid to the agent address changed w/o notification did not returned money requesting assistance with a refund of the money paid to the agent Did not refund money Did not refund money Did not refund money errors in issuing bond req moneyto be returned Did not refund money Ms. Ceballos submitted a bail bond license renewal application; an affirmative answer Ms. Gist submitted a Bail Bondsman license renewal application; an affirmative answer charged to high premium Did not refund money renewal application Did not refund money reqesting assistance with a refund of the money paid need information on licensing of the agent Big V's Bail Recovery & Multi Service did not refunded money Yohance A Perry reqesting assistance with a refund of the money paid ABC Bail Bond Agency Inc no bail was posted need a refund ACTION IMMIGRATION BONDS & INSUR. reqesting assistance with a refund of the money paid Julio C. Pozo George C Zouvelos George C Zouvelos George Garmon SPARTAN BAIL BONDS AGENCY INC. Empire Bonding Agency Inc Laszlo Rosnoyi JOSEPH D BEST SPARTAN BAIL BONDS AGENCY INC. Brendalin 1. Lugo Michelle I Esquenazi George C Zouvelos SPARTAN BAIL BONDS AGENCY INC Ira Judelson George C Zouvelos I C Bail Incorporated Affordable Bail Bonds Ira Judelson Affordable Bail Bonds Dyanne Vasquez Salvatore J DeMlsa Big Trouble Bail Bonds Agency Inc SPARTAN BAIL BONDS AGENCY INC George C Zouvelos Jason Coleman DAVID L BROWN Affordable Bail Bonds Iraida Calderon Andrew Puppo Buffalo Bail Bonds Agency Inc American Liberty LLC Steven L Ray IRAIDA CALDERON Eric J Paykert Vanguard Bail Bonds Agency Inc SENECA INSURANCE COMPANY Big V's Bail Recovery & Multi Service George C Zouvelos Christian Diez Marvin Morgan Big V's Bail Recovery & Multi Service George C Zouvelos Affordable Bail Bonds Dyanne Vasquez Laszlo Rosnyoi Vincent Joseph Smith waiting for a refund for to long Did not refund money Did not refund money discrepancy in charging fees did not refund money refund of money refund of money requesting assistance with a refund ofthe money paid to the agent Did not refund money rebating premium on bond revoking of bail Did not refund money did not refund money revoking of bail Did not refund money Did not refund money did not refund money did not refund money did not refund money refuses to refund money refund of the bail money requesting assistance with a refund of the money paid to the agent did not refund money Did not refund money using unlicensed name overcharging clients requesting a refund of the money paid to the agent returned of a bail bonds money req requesting the list of bonds written in area requesting a refund of the money paid to the agent assisting in not paying bond req actlng without license unspecified complaint falsyfying documents denied copy of documentation regarding a frofeiture forfeiture of bond not satisfied did not refunded money Did not refund money not releasing deposit money lack of responses from the agent, req reimbursement of the money did not refunded money Did not refund money the reimbursement of the money requesting help with a bailbond refund did not refunded money acting as a bailbond agent in other state w/o license CSB 2015-1082132 CSB-2015-1084545 CSB-2015 1088096 CSB-2015-1089579 CSB-2015 1090602 CSB-2015-1090962 CSB 2015 1092138 CSB--201S 1092B52 CSB 2015-1095456 CSB-2015-1098246 CSB-2015-1102133 CSB 2015 1102365 CSB 2015 1104719 CSB 2015 1104939 CSB 2015 1104986 CSB 2015 1107019 CSB-2015 1108533 CSB-2015-1110594 CSB-2015-1114249 CSB 2016 1128859 Laszlo Rosnyoi Empire Bonding Agency Inc Affordable Bails New York Inc lack of receipt for collected premium lack of comunicatlon from the agent bailbond was holding on the the fee Allison's Bail Bonds Inc Forfeitures disclosed and satisfied. File closed as information furnished. MARVIN MORGAN BAIL BOND AGENCY did not retured money due to be repaid Big V's Bail Recovery & Multi Service did not refunded money ROCHELLE BAIL AGENCY INC. It appears that the files we have reviewed were transacted under the unlicensed. Big V's Bail Recovery & Multi Service did not refunded money Laszlo Rosnyoi Cutting Edge Bail Bonds LLC IC Bail Incorporated Seth M Shapiro Big V's Bail Recovery & Multi Service Big V's Bail Recovery & Multi Service Dyanne Vasquez Ira Judelson Cyril Elmo Parish Francisco T. Evangelista Allison's Bail Bonds Inc Action Bail Bonds lack of assistance wants a refund requesting assistance in refund of the money paid to the agent requesting assistance in refund of the money paid to the agent using unlicensed name did not refunded money did not refunded money did not refunded money dispute over amount of refunded money working without license employing person with a conviction delay in refunding money lack of timely notification for court date Z .LN3:Ji'll:)V .L.L V l/4 BAIL BOND CONTRACT PARTIES: AFFORDABLE BAILS NEW YORK INC. (hereinreferredtoa.sABNY)bailbondagentand producer AMERICAN SURETY COMPANY (hereinafter referred to as ASC), Surety DEFENDANT: INDEMNITORS: DATE: -!~~~~~~~that in signing this bail CQrtract I AM PERSONALLY LIABLE FOR Tiffi AJLL AMOUNT OF BOND POSTED AND COSTS AND EXPENSES ASSOCJA TED Wlnt mE BAIL BOND, I'N THE EVENT OF FORfEIWRE INCLUDING BUT NOT LIMITED TO AITORNEYS FEES AND COST Of REMTSSION AND/OR COLLECTION OF FUNDS JUOGMENT.jointly and severally with the defendant and any other indemnilor. Nwii-III'W4~,....-I!"ttlllt in the event of wamnt and/or, forfeiture, and/or a revocalion, endlor violation of 1his contract, any costs. expenses associated with enfurcement of the tenns of the contract, .. d/or paywneat of a forfeirure, end/or J"eYY(::tion of the bond.llldlor violation oflhis COittr3Ct shall be deducted &om any collateral deposited. I undmtJmd this is not a condition precedent to the posting of the bond and is not intended 10 be viewed as additional pranium chargos. I further understmd that these chaz!es do nor occur until and unless there is a forfeiture, end/or a teW<:Idion, andlor violatioo of Ibis OOtdJ'act and e:xpeJJSes have actually accrued. l direct that upon application of ABNY ANDJOR ASC 1hat any amount-~ owed and requested by ABNY AND'OR ASC be deductled from my cash collueral and R:leased to them. Further if the defendant or indemnitor has a credit card on tile with ABNY ANDIOR ASC that ABNY AND/OR ASC is granted tbe authority to tbe card with any tees ii\WITed. 3. understand and agRe tha1 the fees and costs incurred by ABNY ANDJOR ASC cooocming enf~ement, a violalion of any of the contract tenns, including but not limited to, investigations, location. apprehension, lrld cxpensos shall be billed at s 125.00 per enforcement aaent per hour and may be deducted ftom cash collateral, collal2ral, or charged on my credit card on file with ABNY AND/OR ASC witho~ further notice. Any unpaid ballo:e shall be paid UP.Prl dammd. - 4. aadttiCiad aRd •Ira that In the event d\e lndemaltor aDd/or t1ae defeudaat slaall use nal property, a _. 1 · ·.: 11110 aay ofber "necnpt property" fllted pun.aat Co C.P.L.R. sedioDS 52tS alld 5206 u collateral for lbe boad the llldemuitor ucllor deleeciaDt waive any claims of exemption or trempt n.tus for aay amout owed pu"uut to tis contract. TbeiDdemaitors agree diM tbis waiver i.s part or the barphted for ... c1 ia eoasideralioa of ABNV AND/OR ASC se rwJ or penou.l property other tlaan auh u collateral for tlae botad • . . .. . • t L t r • ' ' .5. understand and agree that in the event the bond is forfeited in addition to any enforoc:ment fees I am ret legal fees iiiCUITed to remit the forieiture and/or to collect any ~and expense$ inQJmd by ABNY ANDrOR ASC because of the foTfeiture. Said atomcy fees shall be billed at $300.00 per hour by the attorney for the bail bond company lftd be deduca=d fiom the collateral, C8.!h coDateral or charsed to any cmlit card on file with ABNV AND/OR ASC. Any unpaid amount5 Rmaining shall be due and owing on demand. J undCtStlad this is not a condition precedent to lhe posting of the bond and is not intended to be viewed as additional premium charges. I fUrther undentand that these cbarge.s do not occur unti~ is fomiture, and/or a revocation, and/or violation of this cont:ract and elCpenses have actuaRy accrued. 6. un~ end 8IJ" that the bail bond premium is earned once the baH bond is; posted with the court and cxmtpetent jurisdic:tion. ln the event the defendant is not released bec;auso of a hold placed on the defendant. includine but not timR4 to, a wamnt, parole hold. wodc release vi>ltltion, interstate detainer, immiptian detainer, or for ~y ocher the bond premium is evned and not refundable whether the defendant is released fiom custody or not. 7. and agree that if the bUl is denied for imufficiertt collideral. I will be given an opportunity to provide additional or substituted collateral. The indenmitor shall have 5 bll\iDCSS days to provide new c:ollateral. U tiM! court rctaiu 1M boad •ad exoaenates tbe bolld then tbe fUll fee nmaiu earned reprdleas of wbetber fbe defelldaat Is released or not. . . 2/4 - 8. understand and ~ that if a bail bond signed by a j odgc is later dmiecl for failure of bail source - :' examination of any false or misleading or inaccurate information pr<~vided by indemnitor'S or the court detennines the con~ is nat mff~eient to pass bait somce examinlltion I understand there will be no refund of premium. undersigned authorizes any person, agency, partnership or corporation having any information character, credit and financial reputation to release such information to ABNY/ASC (Surety) including bul not limited to credit reports, employment records, financial records, utility record, telephone records or any other record needed to secure the principals appearance in court, apprehension c:.- collection of fees as a result of enforcement or forfeiture. The undersigned hereby released such person, agency, partnership or corporation from any liability which be in releasing this information to surety including liability under federal law. understand that that I am responsible for the defendant's appearance in the offaces of Affordable Bails (ABNY) within TWENTY -FOUR HOURS (24) of his/her RELEASE FROM CUSTODY and the defendant MUST provide pb>ro identification on that date. Failure to do so is a MATERIAL VIOLATION of this ccontract and ABNY may REVOKE THE BOND without further notice at any time during the existence of the ANY RETURN OF PREMJUM. understand that on the defendant's first appearance at the offiCes of ABNY, the defendant must ·~· .. Lu .... on this CONTRACT and ALL DOCUMENTS pertaining to this bail acknowledging the truth of aJJ information contained therein. Any MISSTATEMENTS ON ANY DOCUMENT is a MATERIAL VIOLATION of this ~ontract and ABNY may REVOKE THE BOND without further notice at any time during the existence of the bond and CAUSE THE IMPOSITION OF ENFORCEMENT CHARGES WITHOUT ANY PRE.MlUM. understand that if the defendant, while out on this bait bond, is ARRESTED FOR ANY NO. or SUMMONS NUMBER. is GENERATED, it is a MATERIAL VIOLATION of this con1ract and ABNY may REVOKE THE BOND without further notice and CAUSE nlE IMPOSmON Of ENFORCEMENT CHARGES wrniOUT ANY RETURN OF PREMIUM. The final cot.Xt outcome on the new on the action taken by BBNY. 13. and that the defendant MUST live a LAW ABIDING LJFE. F AlLURE to do so is a MA of this contract and ABNY may REVOKE 1ltE BOND without further notice and WILL CA11iiliiiiSmON OF ENFORCEMENT FEES WITHOUT ANY RETURN OF PREMIUM. 14. 'understand and agree that the tenns of this contract are"fN ADDIDON" to rules imposed by the court. ';(ny ~URE to comply with the court's rules and regulations is a MATERIAL VIOLATION of this contract and ABNY may REVOKE THE BOND without further notice and IMPOSE ENFORCEMENT FEES WITHOUT PREMIUM. understand and agree that in the event the defendant isREMANDED FOR ANY REASON after ISitf'OSte: effect process upon the person/entity being served because of the following reason(s): 0 Unknown al Address 0 Moved, Left no Forwarding 0 Service Cancelled by Litigant 0 Unabfe to Serve In Timely Fashion 0 Address Does Not Exist 0 Other Service Attempts: service was attempted on: (1) (2) __ -::-:c=-------=,....,.,~-- OA TE TIME DATE TIME (3)_--r==------;:::-:;:-- -·· (4)_ - (5)_ DATE TIME DATE TIME DATE TIME Description:. Age_ Sex r{\ RacetJittHeight_5f:t_weight J(, 0 Hair61ot"deBeard_x:_Giasses_k:__ \\klf"'t\,eJ ~i~ SIGNATURE OF PROCESS SERVER SUBSCRIBED AND SWORN to before me this .s ~ day of _ . 20.!2.. by -~ ~\ [~ Proved to me on the basis of satisfactory evidence to be the person(s} who a peared before me. Jk~s. ~4;<)4 ,., CHAAl.ENE S. MARCHESE SIGNATURE OF NO~RY PUBLIC Notery Pubic. Stale of New Volt No. OtMA50e53n QueWied In Ridlmocld County ~ EJCPhsOdabw20, 20fl NOTARYPUBLICfortllestate of ~~ "J PLAINTI F/PETITIONER DEFEND T/RESPONOENT A E NUMB R I Sca.w ye.\ On')U\~«5; . being first duly sworn, depose and say: that I am over the age of 18 years and not a party to this action, anoo""" ~ At NAME RELATIONSHIP 0 Resldence=====::n:::::::~~==--=-=====-..,.-====~"'!"'"'!~~-----..... ==··===•-==--- 6o ADDRESS ~~ CIT'(! STATE l8l Business'= ==ooW=-.... Er:::..._L.\-:7.W~~S~:fu~~L..-..---....::}J~c~w!::'n~o::.i-:.lc..~,rtJ.L.,bi.-----..1.\,lojQ~\u.ftF~== ADDRESS CITY I STATE On A J_ 11 z-t'- 11:\, LJ~ <..:L.Yl~""'~....:::~"-----<1&2~:J..-~~-- -----JAT __ J.l_ 1l M,_,_ ____ _ T DATE 0 Inquired if subject was a member of the U.S. Military and was informed they are not. Thereafter copies of the documents were maled by prepaid, first dass ma.1 on-------=~.,..--·-- DATE rrom. ___ ~~------~~~--------~~--- CITY STATE ZIP Manner of Service: 0 Personal: By personally delivering c~ies to the person being served. o Substituted at Residence: By leaving copies at the dwelling house or usual place of abode of the person being served with a member of the household over the age of _ _ and explaining the general nature of the papers. l(Subslltuted at Business: By leaving, during office hours, copies at the office of the person/entity being served with the person apparently in charge thereof. o Posting: By posting copies in a conspicuous manner to the front door of the person/entity being served. Non-Service: After due search, careful inqliry and diligent attempts at the address(es) listed above, I have been unable to effect process upon the persontentity being served because of the following reason(s): 0 Unknown at Address 0 Moved, Left no Forwarding 0 Service Cancelled by Utigant 0 Unable to Serve in Tinely Fashion 0 Address Does Not Exist 0 Other ________ _ Service Attempts: Service was attempted on: (1) (2)_~~----=-=~---- 0ATE TIME DATE TIME ~·----,-,..,-------------- (4) __ = =----=-=----- (5) __ --;::::=--:---:;::;;~- - DATE TIME DATE TIME DATE TIME Description:. Age~Sex~Race--14-..Height ,-· b Weight \ ~ Hair_i__Beard.l!.._Giasses_u_ SIGNATURE OF NOTARY PUBLIC NOTARY PUBLIC for lhestale of ~ ~ v COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------- -----X KARINE GEVORKYNAN, ARTHUR BOGORAZ, CTQ-2016-00004 INNA MOLDA VER AND SAM MOLDA VER, Appellants, ATTORNEY AFFIDAVIT OF SERVICE -against- IRA JUDELSON, Respondent. -------X------------------------------- ----------------------- State of New York, County of Kings ss: ASHIKA DAVID, an attorney admitted to practice law within the courts of this State, affirms under the penalty of perjury that the following statements are true: l. On May 5, 2017, Nathaniel Kelliehan, a licensed process server at Brooklyn Defender Services ("BOS") personally served three copies of the affixed brief of amici curiae on Appellants through their attorney of record, Andrew Lavoott Bluestone, Esq., at 233 Broadway, Suite 2702, New York, New York 10279. 2. On May 5, 2017, Samuel Rosenberg, a licensed process server at BOS, served via substituted service three copies of the affixed brief of amici curiae on Respondent through his attorney of record, Jonathan Svetkey, at Watters & Svetkey, LLP, 60 East 42 nd Street- Suite 1427, New York, New York 10165. 3. On May 9, 2017, three copies of the affixed brief of amici curiae were also mailed overnight to Jonathan Svetkey at the above address and Kyle B. Watters, P.C., the other attorney of record, at 42-40 Bell Boulevard - Suite 606, Bayside, New York I 1 361 . Dated: Brooklyn, New York May9 ,2017 -�� Ashika David adavid@bds.org 177 Livingston Street, 7 th Floor Brooklyn, New York 1120 I Tel: (718) 254-0700 x390 Fax: (718) 254-0897 BROOKLYN DEFENDER SERVICES