EMPIRE BONDING AGENCY INC EMPIRE BONDING & INSURANCE CO. (2026)

The motion for remission of the $150,000 bail bond is GRANTED and will be remitted for the reasons that follow.

Procedural History

After his arrest and criminal court arraignment, defendant was released on a $150,000 bail bond on April 21, 2023.

He was subsequently indicted and, on May 10, 2023, was arraigned under New York County Indictment Number 71886/2023 in New York County Supreme Court after indictment for Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1]) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). That indictment was superseded on December 11, 2024 by Indictment Number 73366/2024, which included several additional charges: Operating as a Major Trafficker (Penal Law § 220.77[2] & [3]), Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.43[1]), and related charges.

After multiple court appearances throughout the year, the case was on for a status update on August 22, 2024. Defendant did not appear and the court ordered a warrant but stayed its issuance. By September 3, 2024, because the defendant had still not appeared, the court issued the warrant and stayed forfeiture of the bail for thirty days (Beller, J.). Defense counsel was present at that appearance.

On December 9, 2024, the defendant was involuntarily returned on the warrant and his bail status was changed to remand on consent because counsel could not appear in court that day. The court file and the court's database both have the same notations from that appearance: "Involuntary return on a warrant. Warrant vacated, W-V. Remand, bail exonerated". The December 9, 2024 minutes, however, reflect that the court did not make any reference to forfeiture or exoneration (Edwards, J.). The case was adjourned to December 11, 2024 for counsel to make a bail argument.

On December 11, 2024, all parties appeared in court; counsel indicated that a global disposition was being discussed and waived a bail application at that time. Remand was continued and the case was adjourned to January 17, 2025 for possible disposition.

On January 17, 2025, following an off-the-record bench conference with the parties, and upon counsel's request, the court ordered a Criminal Procedure Law § 730 exam. Defense counsel asked that bail be exonerated since the defendant was now present, there had been a stay of forfeiture, and he believed that the defendant's family had paid the high bail amount. Counsel also noted that the defendant had gone to the Dominican Republic and had been arrested there. The court indicated that it did not know whether bail had been forfeited, but the standing assistant district attorney stated that he believed that bail had been forfeited and opposed exoneration given that defendant fled to another country and that the People had used extensive resources to locate him and bring him back to the United States. After hearing argument, the court stated, "I will not change that he forfeited his bail" (January 17, 2025 minutes). That same day, January 17, 2025, the People completed the judgment of forfeiture, although it appears that it was stamped by the County Clerk's Office on February 5, 2025.

On or about March 20, 2025, a CPL § 730 report finding the defendant unfit was submitted to the court and, on April 3, 2025, the CPL § 730 findings were confirmed and the defendant was transferred to the custody of the Office of Mental Health.¹

Empire Bail Bonds Company, through counsel, brought this application for bail remission, contending: (1) there was no clear forfeiture of bail on the record; (2) if there was a forfeiture, it occurred on February 5, 2024, outside of the 120-day time limit; and (3) regardless of whether there was a timely forfeiture, extraordinary circumstances warrant remission of the bail in this case, specifically the fact that defendant was found unfit upon his involuntary return.

The People opposed remission, contending that while the earlier record may have been uncertain, a clear determination of forfeiture was, in any event, made by the court on January 17, 2025, and that remission is not appropriate given that defendant had fled the country while out on bond.

This court heard argument from the parties on August 27, 2025. For the reasons that follow, the application for bail remission is GRANTED.

Conclusion

Criminal Procedure Law § 540.10(1) provides that when a defendant fails to appear at a scheduled court appearance without sufficient excuse, the court must enter "such facts" on the record and "the bail bond or the cash bail, as the case may be, is thereupon forfeited." The forfeiture may be discharged if the defendant appears before the case is adjourned with a satisfactory excuse for the non-appearance (see CPL § 540.10[2]). If the forfeiture is not discharged, however, the District Attorney must file the bail bond and forfeiture order in the County Clerk's office within 120 days "after the adjournment of the court at which such bond was directed to be forfeited" (id).

To obtain remission or vacatur of a forfeiture order, a surety must file an application seeking such relief pursuant to CPL § 540.30 "within one year after the forfeiture of the bail is declared" and may be granted "upon such terms as are just" (CPL § 540.30[2]).

In People v Nicholas, 97 NY2d 24, 26 (2001), the Court of Appeals noted that "the People are obligated to act expeditiously in enforcing any bail bond forfeiture order, as must a surety seeking remission of such an order. By the plain language of these statutes, both time requirements begin to run when the court 'directs' or 'declares' forfeiture of the bail bond—indicating forfeiture does not occur automatically but requires judicial action." Thus, the Court determined that the time in which the People must take action to enforce a bail bond forfeiture pursuant to CPL § 540.10 begins to run "when Supreme Court finds that a defendant's absence is unexcused and makes a determination on the record directing forfeiture of the bail bond."

In this case, on September 3, 2024, although the court (Judge Beller) issued a bench warrant, it stayed forfeiture for 30 days, presumably for the parties to determine whether there was a "sufficient excuse" for the defendant's absence; yet, no determination about the reason for his absence was ever made by the court, because the next court appearance occurred three months later, on December 9, 2024 before Judge Edwards, when the defendant was involuntarily returned on the warrant. On that date, although the record is silent as to whether bail was forfeited or exonerated, there is a notation on the court file and in the court's computer system indicating that the warrant was vacated, the defendant's bail status was changed to remand, and the bail was exonerated (Court file; see August 27, 2025 minutes, pp. 5-10). On the next court date, December 11, 2024, there was no discussion about bail on the record, and the case was adjourned to January 17, 2025 for a possible global disposition (see December 11, 2025 minutes; August 27, 2025 minutes, pp. 10-11).

On January 17, 2025, the parties appeared in court before Judge Beller. After an off the record conference, and a request by defense counsel, the court ordered a CPL § 730 exam and the defendant was remanded. Counsel asked that bail be exonerated, but the court stated that it did not know whether it had already been forfeited. The People indicated that they believed that bail had already been forfeited, but that regardless of whether or not it had been, it should be forfeited because the defendant had fled to another country and the People had to expend extensive resources to bring him back (see January 17, 2025 minutes; August 27, 2025 minutes, pp. 12-13). The court stated that it would not change the forfeiture status (see January 17, 2025 minutes; August 27, 2025 minutes, p. 13).

On or about March 20, 2025, the CPL § 730 examination report was submitted to the court indicating that the defendant had been found unfit and, on or about April 3, 2025, the findings were confirmed, and the defendant was committed to the custody of the Office of Mental Hygiene (see August 27, 2025 minutes, p. 14). The People submitted the judgment form on January 17, 2025, though it appears that it was not stamped by the County Clerk's Office until February 5, 2025 (see August 27, 2025 minutes, p. 15-22).

The date that the judgment form was filed is significant because the People are bound by statute to file within 120 days of bail forfeiture. Thus, here, if bail was forfeited on September 3, 2024, January 17, 2025 would be within the 120-day period, while February 5, 2025 would be outside of the 120-day period (see August 27, 2025 minutes, p. 22). This court finds, however, that, in line with Nicholas, because there is no automatic forfeiture of bail, in this case, bail was neither forfeited on either September 3, 2024 or 30 days later on October 5, 2024 because there is no clear record on either date directing the forfeiture of bail following a determination that there was no sufficient excuse for the defendant's absence. In other words, his continued absence alone was not sufficient to trigger forfeiture following the 30-day stay.

Nevertheless, on January 17, 2025, after the defendant's involuntary return from the Dominican Republic and after hearing the People's argument in favor of forfeiture, Judge Beller made a clear record that the bail should be forfeited (see January 17, 2025 minutes; August 27, 2025 minutes, pp. 22-31), thereby starting the clock on the People's time to file the judgment form.² Thus, regardless of whether the judgment form was filed on January 17, 2025 or February 5, 2025, it was plainly filed well-within the 120-day statutory limit.

Counsel for Surety argues, however, that the defendant's mental health status constitutes an "extraordinary circumstance" which should have either counted as a "sufficient excuse" to avoid forfeiture or should be considered as a basis for bail remission (see August 27, 2025 minutes, pp. 31-36). To the extent that, at the time the defendant was returned to court from the Dominican Republic after absconding for several months, no evidence or argument was presented to the court to show that the defendant's mental health status was the cause of his absence, the court's determination to forfeit bail was proper.

With respect to remission, however, CPL § 540.30 (2) provides that "[t]he court may grant [a remission] application and remit the forfeiture or any part thereof, upon such terms as are just." Interpreting this provision, courts have held that remission "should be granted only under exceptional circumstances and to promote the ends of justice" (People v Scalise, 105 AD2d 869, 870 [3d Dept 1984], lv den 64 NY2d 604 [1985]; People v Peerless Ins Co, 21 AD2d 609, 616 [1st Dept 1964]). "Whatever the excuse, if the defendant has contributed by careless, reckless, or willful act to the event offered as an excuse, it should, generally, require a denial of the motion" (Peerless, 21 AD2d at 609). The surety has the burden of proof with respect to the requested remission (People v Fiannaca, 306 NY 513 [1954]). An application for remission must be supported by affidavits based upon personal knowledge of the facts and other documents, which demonstrate that: (1) the surety acted reasonably to ensure the defendant's appearance in court; (2) it made efforts to bring the defendant to court after the defendant warranted; and (3) that, due to extraordinary circumstances, (4) the surety (or indemnitor) will suffer extreme financial hardship unless remission is granted (CPL § 540.30[2]).

In Peerless Ins Co, 21 AD2d at 617, the First Department noted that where remission is sought based on a defendant's illness at the time of the missed court date, to show that the failure to appear was not willful, the applicant must present a detailed and explicit affidavit from the defendant "showing that the illness was a disabling one. A medical certificate for a serious disabling illness may suffice, but for anything less a detailed explanatory medical affidavit should be required. And then, the failure at the appointed time or immediately thereafter to advise the court by attorney or other person of the nonappearance should be explained by plausible and sufficient affidavit of one with knowledge of the facts."

In People v Nichols, 184 AD3d 1, 6 [1st Dept 2020], the First Department determined that the surety had met her burden to establish that the defendant's failure to appear was not willful but instead the result of a disabling illness based on: (1) the defendant's own affidavit detailing a bout of depression, paranoia, memory loss, and drug use that were triggered by his brother's death; (2) the surety's affidavit corroborating the defendant's account with her own observations; and (3) a psychiatrist's letter indicating that the defendant had been diagnosed with post-traumatic stress disorder, cocaine use disorder, and severe intermittent explosive disorder (id at 6). The court concluded that "[l]ooking at the pleadings liberally as we must, this is certainly sufficient to show that defendant suffered from a 'disabling' mental illness" (id citing Peerless, Ins Co, 21 AD2d at 617). In addition, surety informed the court on the day of the defendant's nonappearance that he was absent due to his deep depression and also demonstrated that the People suffered no prejudice as a result of his failure to appear (id at 7). The court also found that there were exceptional circumstances where bail was posted by a non-bonding company, the motion was brought pro se, and pro bono counsel represented that the surety was a single woman who posed bail based on her coercive relationship with the defendant (id).

In this case, the defendant, who had appeared in court regularly for almost one and one-half years while out on bail, uncharacteristically failed to appear at his August 2024 appearance without warning. He was discovered to be at his home in the Dominican Republic and was brought back to New York in December 2024. At the January 17, 2025, appearance, his attorney believed that the defendant had demonstrated behavior which warranted a CPL § 730 hearing. The hearing was ordered and, on or about March 20, 2025, the court received the examination report indicating that the defendant was unfit to proceed. Those findings were confirmed in April. While it is not certain whether the defendant's mental health status caused his failure to appear in court, it is known that once he did appear, he was unfit and he remained unfit until December 2025. For that reason, it cannot be said that the defendant's absence was a result of his "careless, reckless, or willful act", but instead was most likely due to his mental state (see eg Nichols, 184 AD3d at 6 [1st Dept 2020] ["the surety met her burden to show that defendant's failure to appear was not willful by proving that is absence was caused by a disabling illness"]).

While bail in this case was posted by a bond company, the bond was paid for by the defendant's family who counsel for the bond company says will suffer extreme hardship as a result of forfeiture of the bail.³ Jason Fordin, an employee of Surety, has averred, moreover, that between the time the bond was posted in April 2023 until his disappearance in August 2024, the defendant reported to the bond company weekly, without issue. When the defendant did ultimately fail to appear in August 2024, Surety "began taking necessary steps to locate [him]," including alerting its fugitive recovery unit, which began a search (Jason Fordin Affidavit in Support of Bail Remission, ¶ 3). Counsel for Surety indicates that the defendant's family assisted the bond company in locating the defendant and Mr. Fordin states that, upon investigation, they learned that the defendant had gone to the Dominican Republic and thereafter reached out to inform the District Attorney's Office (Jason Fordin Affidavit in Support of Bail Remission, ¶¶ 4-5; Reply Affirmation, ¶ 4; August 27, 2025 Minutes, pp. 35-36).

Although the People expended resources to bring the defendant back to New York, under the circumstances of this case, this court finds that Surety has demonstrated a showing sufficient to establish that remission is warranted. Indeed, although it cannot be said with certainty that the cause of the defendant's nonappearance was his mental state, it is clear that until his failure to appear, he appeared in court regularly for over one year and that he was suffering from a mental disability upon his return. This court also finds that (1) the surety acted reasonably to ensure the defendant's appearance in court; (2) it made efforts to bring the defendant to court after the defendant warranted; and (3) that, due to extraordinary circumstances, (4) the surety (or indemnitor) will suffer extreme financial hardship unless remission is granted (see CPL § 540.30[2]).

Accordingly, Surety's bail remission application is granted in full.

Dated: May 14, 2026

New York, New York

Ellen Biben, JSC

FOOTNOTES

1.   Defendant was returned fit on or about December 23, 2025. On March 19, 2026 defendant pled guilty to Criminal Sale of a Controlled Substance in the Second Degree (Penal Law § 220.41[1]).

2.   Despite the December 9, 2024 notation on the court file and in the court's computer system that the bail had been exonerated, given that the record is silent and there is no indication that the court actually directed that the bail be exonerated, this court will not credit the notation.

3.   Notably, the family members who paid the bond have appeared in court for this application in light of their stake in the outcome.

Ellen Biben, J.