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Supreme Court, Nassau County, New York.

IN RE: the Application of EBIC INSURANCE COMPANY, SURETY, BY Ivy M. EATMAN Its Attorney–In–Fact/Agent To Remit the Forfeiture of a Bail Bond (Pursuant to CPL 540.30), Duly Deposited for, Defendant in the People of the State of New York Kane Moore, Defendant.


Decided: December 19, 2017

HON. MADELINE SINGAS, District Attorney, Nassau County, Mineola, NY 11501, By:  Mary Faldich, Esq., for EBIC INSURANCE CO, Surety EMPIRE BAIL BONDS, Agent and Attorney–In–Fact, 62 Nichols Street, Hempstead, NY 11550, Mitchell Barnett, Esq., Attorney for Defendant, 1140 Franklin Avenue–Suite 214, Garden City, NY 11530

Application to vacate the forfeiture and the remission of bail, for EBIC Insurance Company, by its agent in fact and Surety agent Empire Bail Bonds, is determined as hereinafter provided.

The defendant, Kane Moore, was arrested on October 13, 2015 and charged with Aggravated Criminal Contempt under Penal Law § 215.52 and Assault in the Third Degree under Penal Law § 120.00. Defendant was arraigned before a Nassau County District Court Judge and bail was set in the amount of $2,000.00 bond over $1,000.00 cash. On October 19, 2015 Empire Bonding and Insurance Company (EBIC) posted the $2,000.00 bond to secure the defendant, Kane Moore's release.

On December 1, 2015 the defendant failed to appear at a regularly scheduled court calendar date before another judge of the Nassau County Court. That judge stayed the bench warrant until December 11, 2015. On that date the defendant once again failed to appear and a bench warrant was issued forthwith. However, forfeiture of the bail bond was stayed until January 5, 2016, when the matter was transferred before this Court. On January 6, 2016, this Court signed an Order forfeiting bail and on January 11, 2016 a certified copy of that Order was forwarded to EBIC, together with a letter from the Nassau County Court Clerk's office informing the Surety that under CPL § 540.30 they have one year to file a motion for remittance of bail one year from the date of the Order (January 6, 2016).

On May 16, 2016, the defendant was arrested and charged with Criminal Contempt in the First Degree (PL § 215.51) and Assault in the Second Degree (PL § 120.00). He was also charged with Bail Jumping in the Third Degree (PL § 215.56) as a result of the issuance of the warrant for failure to appear on December 11, 2015.

On May 19, 2016 the defendant involuntarily appeared before this Court on all charges, old and new. On September 2, 2016 defendant pled guilty to Attempted Aggravated Criminal Contempt (PL § 110/215.52) and Assault in the Third Degree (PL § 120.00[1] ) and on November 15, 2016 the defendant was sentenced in accordance with a plea agreement.

On August 14, 2017 the Surety filed the within motion to Vacate the Forfeiture and Remission of Bail. The People filed responding papers on September 12, 2017. The People oppose primarily on the grounds that the one-year statute of limitation has expired and that in any event, the surety failed to meet their burden of entitlement to bail remission.

Under CPL § 540.30(2), an application for remission of bail “must be made within one year after forfeiture of the bail.” People v. Gonzalez, 280 A.D.2d 274, 720 N.Y.S.2d 340 (1st Dept. 2001). It is the undisputable fact that bail was forfeited on January 6, 2016, notice was sent to the Surety on January 11, 2016 and this motion was not made until August 14, 2017, a full six (6) months beyond the one year statute of limitations.

It is clear that the application is indeed being made beyond the statute of limitations, and there are no grounds present that would require the Court to waive this statutory impediment. Seneca Insurance v. People, 40 A.D.3d 1151, 834 N.Y.S.2d 581 (3rd Dept. 2007);  People v. Salabarria, 121 A.D.2d 438, 503 N.Y.S.2d 411 (2nd Dept. 1986). The Courts are required to interpret the time limits as set forth in the CPL, strictly, so the construction of the CPL shall remain uniform. People v. Schonfeld, 145 A.D.2d 741, 535 N.Y.S.2d 479 (3rd Dept. 1988).

This Court notes that this statute of limitations, being restricted to one year, is one of the most limited time periods under New York State law. However, although far from a new law, this issue appears to be of first impression. Therefore, this Court will review the constitutionally of the law, particularly from a due process perspective.

It has long been the “traditional policy” of the New York Courts “to construe statutes, if possible, in such a manner as to uphold their constitutionality”, People v. Nieves, 36 N.Y.2d 396, 400, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975). There is an exceedingly strong presumption of constitutionality of both local and state laws, McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128, 488 N.E.2d 1240 (1985). The New York Court of Appeals has ruled “that a legislative enactment will be presumed constitutional as an elementary but significant principle of law,” the Court added “The strengths of this presumption, sometimes understated, has been repeatedly underscored by the courts of this state”, Marcus Associates, Inc. v. Town of Huntington, 45 N.Y.2d 501, 505, 410 N.Y.S.2d 546, 382 N.E.2d 1323 (1978).

It is within the legislature's purview, absent constitutional infirmity, to set reasonable limitations on actions. Aida S. v. Efrain, 122 Misc.2d 667, 472 N.Y.S.2d 307 (1984). A statute of limitation does not deprive a person of property without due process of law, unless, it unreasonably limits the opportunity to enforce the right provided. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). People v. Jaquez, 309 A.D.2d 635, 765 N.Y.S.2d 621 (1st Dept. 2003). From a historic constitutional perspective, a one year statute of limitations in and of itself will not violate due process considerations. [See (Blinn v. Nelson, 222 U.S. 1, 32 S.Ct. 1, 56 L.Ed. 65 (1911) ].

When engaging in evaluations of both Federal and New York State Constitutional due process considerations, laws must clearly be enacted with a significant “content neutral government interest” that is narrowly tailored to its purpose. People v. Barton, 8 N.Y.3d 70, 828 N.Y.S.2d 260, 861 N.E.2d 75 (2006). It has been held that an appropriate tailored government purpose may only be declared invalid if it is determined to be unconstitutional beyond a reasonable doubt. Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 531 N.Y.S.2d 782, 527 N.E.2d 265 (1988).

It has been held that remission of forfeiture of a bail bond is considered an “Act of Grace” which the legislature may take away if it no longer deems it serves its continued purpose. People v. Public Service Mut. Ins. Co., 43 A.D.2d 963, 352 N.Y.S.2d 209 (2nd Dept. 1974). Remission is purely statutory and its provisions must be strictly construed. People v. Santiago, 175 Misc.2d 268, 668 N.Y.S.2d 878 (1998). The act of remission is not a “claim of relief as of right”, and therefore, the right of the one seeking remission is balanced against the stronger interests of the state. People v. On Sight Mobile Opticians, 24 N.Y.3d 1107, 2 N.Y.S.3d 406, 26 N.E.3d 234 (2014).

Thus, as a limited statutorily created right, bail remission due process considerations are set at minimum when balanced against far more significant state interests. The legislature limited remission to a one year period because the state's interest may become irreparably damaged. People v. Schonfeld, 145 A.D.2d 741, 535 N.Y.S.2d 479 (3rd Dept. 1988). This is particularly significant as the county treasurer would no longer be able to release the bail as it would no longer be in the county's possession. People v. Morales, 108 A.D.2d 827, 485 N.Y.S.2d 300 (2nd Dept. 1985). Indeed, one Appellate Division has declared that the one year limited period is jurisdictional in nature and cannot be waived as a result. People v. Cotto, 262 A.D.2d 138, 693 N.Y.S.2d 98 (1st Dept. 1999).

Accordingly, the Court finds CPL § 540.30 (2) constitutional under both the Federal and New York State Constitutions and therefore finds no grounds to vacate the forfeiture or remit bail.

In addition, the Court further notes, that, in any event, the surety has failed to meet its burden of proof for remission of bail. People v. Santiago, 175 Misc.2d 268, 668 N.Y.S.2d 878 (1998).

Application for remission of forfeiture of bail is addressed to discretion of the Court and should be granted only under exceptional circumstances and to promote the ends of justice. People v. Scalise, 105 A.D.2d 869, 482 N.Y.S.2d 362 (3rd Dept. 1984). A Surety seeking remission of bail has the burden of proving exceptional circumstances and that there is no prejudice to the People or loss of the rights of the People. People v. Public Service Mut. Ins. Co., 43 A.D.2d 963, 352 N.Y.S.2d 209 (2nd Dept. 1974).

The Surety fails to present any grounds that would be considered exceptional circumstances. The Surety's affirmation that the defendant was under arrest at the time of the issuance of the warrant and bail forfeiture is unsubstantiated and based on hearsay. People v. Public Service Mut. Ins. Co., 37 N.Y.2d 606, 376 N.Y.S.2d 421, 339 N.E.2d 128 (1975). The same holds true for the allegation that their bond was exonerated but forfeiture was not vacated upon the defendant's re-arrest on some unspecified date for an unspecified and undocumented case. Indeed, if the defendant was arrested at the time, then it was likely a result of his “careless reckless and willful act” and is not an excuse for failure to appear in court. People v. Shell, 266 A.D.2d 28, 698 N.Y.S.2d 214 (1st Dept. 1999).

The Surety has also failed to satisfy this Court that the People are without prejudice. The “People have a vested interest in having Indictments disposed of promptly and the right to have cases tried on the date set”. People v. Lennon, 125 A.D.3d 1009, 1 N.Y.S.3d 855 (2nd Dept. 2015). Lastly, the Court notes that where the application for return of bail is barred by the statute of limitations, as in the case at bar, whether the state has lost any rights is immaterial as to the end result of denial. People v. Leonard, 16 Misc.2d 904, 182 N.Y.S.2d 699 (1958).

Accordingly, the application by the Surety, by its Attorney in Fact, to vacate the forfeiture and for remission of bail, is denied in its entirety. In reaching this determination, the Court reviewed the Surety's motion papers dated August 14, 2017 and the opposing papers submitted by the Office of the Nassau County District Attorney's office dated September 12, 2017.

This determination shall constitute the decision and Order of the Court.


Robert G. Bogle, J.

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