People v. Castro

• Citation: 119 Misc.2d 787,464 N.Y.S.2d 650
• Parties: The PEOPLE of the State of New York v. Jose CASTRO, Defendant, and Tony Oquendo, Petitioner.
• Decision Date: 10 June 1983
• Court: New York Supreme Court

Page 650

464 N.Y.S.2d 650

119 Misc.2d 787

The PEOPLE of the State of New York v. Jose CASTRO, Defendant and Tony Oquendo, Petitioner.

Supreme Court, Special Term,

Kings County, Part 10K.

June 10, 1983.

Legal Aid Society, Caesar Cirigliano by Joseph Kaplan, Brooklyn, for petitioners/movants.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the People; Barbara D. Underwood, Michael J. Halberstam and Hazel S. Mushynsky, Brooklyn, of counsel.

Robert Abrams, Atty. Gen., for State; Bridget Farrell, Asst. Atty. Gen., of counsel.

LEONARD E. YOSWEIN, Judge.

In a series of cases, different depositors of cash bail have moved for remission of the cash bail, or, in the alternative, to vacate the forfeiture of the cash bail. All petitioners are represented by Caesar Cirigliano as attorney for the Legal Aid Society. The parties and the Court have agreed that this case will be the guidepost and that all rulings herein shall apply equally to all the others, as the issues in each of these cases are virtually identical.

On January 24, 1980 Jose Castro was arrested and charged with the crime of burglary in the second degree (Indictment # 231/80). After a preliminary hearing bail was set at $1,000 cash bail. Petitioner, Tony Oquendo, deposited this amount with the Department of Corrections. On January 8, 1981 defendant-principal Jose Castro failed to appear in court and the cash bail was forfeited. The forfeited cash bail was remitted to the Director of Finance of the City of New York. On September 22, 1981 defendant-principal was arrested on an unrelated matter. On September 28, 1981 defendant pled guilty under this indictment to a lesser crime and was sentenced.

Petitioner-movant Tony Oquendo now seeks the return of the forfeited cash bail. The district attorney opposes and a number of issues have been developed.

Statute of Limitations

Petitioner concedes that the petition/motion herein was made more than one year after the forfeiture. The People claim that the motion/petition to vacate the forfeiture and for remission of bail is untimely.

CPL 540.30, subdivision 2 requires that all applications for bail remission be made within one year of the forfeiture.

It is well settled that the right to remission of bail is not a vested right but an act of grace by the Legislature (People v. Cohen, 245 N.Y. 419, 157 N.E. 515; People v. Public Service Mutual Ins. Company 43 A.D.2d 961, 962, 352 N.Y.S.2d 211, affd 37 N.Y.2d 606, 376 N.Y.S.2d 421, 339 N.E.2d 128). Therefore, the "terms of the statute must be strictly complied with" (People v. Public Service Mut. Ins. Company 37 N.Y.2d 606, 612, 376 N.Y.S.2d 421, 339 N.E.2d 128; People v. Martin, 225 App.Div. 572, 233 N.Y.S.2d 643). The one-year time limitation "may not be enlarged even on consent of the District Attorney" (Matter of White, 41 Misc.2d 994, 246 N.Y.S.2d 891; People v. Public Service Mut. Ins. Co. 37 N.Y.2d 606, 612, 376 N.Y.S.2d 421, 339 N.E.2d 128, supra; People v. LaMonica, 14 A.D.2d 759, 220 N.Y.S.2d 244; People v. Dellamura, N.O.R., Co.Ct., 28 N.Y.S.2d 584).

An exception to the one year limitation exists where there is a claim that the bail was illegally accepted. In such a situation the statute of limitations is inapplicable and the application may be made at any time (People v. Wirtschafter, 305 N.Y. 515, 114 N.E.2d 18; People v. Zangrillo, 56 A.D.2d 668, 391 N.Y.S.2d 913; State v. Swinburne, 121 Ariz. 404, 590 P.2d 943, 944; State v. Ricciardi, 81 N.H. 223, 123 A. 606; cf. People v. Public Service Mut. Ins. Co. 43 A.D.2d 961, 352 N.Y.S.2d 651). This exception to the Statute of Limitations applies equally when the forfeiture of bail is claimed to be void, or illegal (see, for example, People v. Maldonado, 49 Misc.2d 641, 268 N.Y.S.2d 271, affd. 31 A.D.2d 717, 295 N.Y.S.2d 597).

A claim of illegality of the forfeiture procedure is properly made in a motion to vacate the bail forfeiture. Bail remission applications are not the proper form for these claims, since bail remission is addressed to the discretion of the court and not to matters of law.

Although in the instant case the application for bail remission is untimely, having been made beyond the one year limitation, the application to vacate the forfeiture of bail is timely since it alleges that the forfeiture was unconstitutional or illegal and therefore void (People v. Wirtschafter, 305 N.Y. 515, 114 N.E.2d 18, supra ).

Remission

Although that portion of the application seeking the remission of bail is barred by the statute of limitations, the court finds it advisable to briefly discuss the remission applications made in these cases.

It is well settled that remission of bail is within the discretion of the court even when they are timely (People v. Licenziata, 230 App.Div. 358, 244 N.Y.S. 731; People v. Dellamura, n.o.r., Co.Ct., 28 N.Y.S.2d 584, 586, supra ). However, as stated in People v. Peerless Insurance Company, 21 A.D.2d 609, at p. 613, 253 N.Y.S.2d 91:

"In quite recent times the Court of Appeals has made clear and explicit the twin governing principles, namely, that a remission is justified only in exceptional circumstances and that there must have been no loss of rights or prejudice to the People. As a corollary rule, the surety has the burden of proof with respect to both bases for a requested remission * * *." (emphasis supplied) (see also, People v. Public Service Mutual Ins. Co. 43 A.D.2d 963, 352 N.Y.S.2d 209, affd. 37 N.Y.2d 606, 376 N.Y.S.2d 421, 339 N.E.2d 128).

To grant remission applications routinely would effectively destroy the purpose of bail. If depositors of cash bail or sureties on bail bonds believed that remission would be granted automatically there would be no incentive to insure defendant-principal's return to the court on the scheduled date.

Bare allegations of severe hardship are "insufficient to justify remission" (People v. Midland Insurance Company, 97 Misc.2d 341, 345, 411 N.Y.S.2d 521). The application for bail remission must set forth "the extent of their resources or just how limited they are" (People v. Fiannaca, 306 N.Y. 513, 518, 119 N.E.2d 363). Affidavits by attorneys representing applicants (rather than the depositor of cash bail) are insufficient to grant remission (People v. Public Service Mut. Ins. Co., 37 N.Y.2d 606, 613, 376 N.Y.S.2d 421, 339 N.E.2d 128, supra ).

In these cases the bare allegations made by the attorneys are insufficient to overcome the statute of limitations, or for the court to exercise its discretion to grant remission (People v. Stuyvesant Insurance Company, 27 A.D.2d 858, 278 N.Y.S.2d 553). Thus, even if the statute of limitations would not bar these claims, the applications for remission on their face require denial.

The court turns to the arguments relative to vacatur of the bail forfeiture on the grounds of the unconstitutionality of the New York bail forfeiture procedure.

Standing

The People allege that a depositor of cash bail lacks standing to make an application seeking vacatur of a cash bail forfeiture. They allege Judiciary Law § 798 specifies that only a defendant or a surety may make an application for bail remission. In addition, the district attorney contends that cash bail must be deemed to belong to the defendant, even though deposited by a third party, and thus, the depositor has no right to seek vacatur of the cash bail forfeiture.

This court does not agree with this interpretation of Judiciary Law § 798. While it is true that a depositor of cash bail is not a surety, Judiciary Law § 798 does not restrict the category of persons who may make a remission application. The statute is not restrictive in indicating who normally makes bail remission applications. Furthermore, Judiciary Law § 798 is applicable only to applications for bail remission, and has no application to vacatur of forfeitures.

As to the People's claim that defendant-principal must be deemed to be the sole owner of the cash bail, this court disagrees. Support for the People's position can be found in State v. Altone, 140 Me. 210, 35 A.2d 859 In that case the court ruled that a depositor of cash bail has no standing to seek the return of the forfeited bail because the applicable statute, as interpreted, provided that the money belonged to a defendant-principal. The money, under said statute, could be returned only to a defendant, or to "a third person on her order" (p. 860). In New York however, there is statutory authority for the return of cash bail to the depositor (General Municipal Law 99-m). The New York statute is equivalent to an order by defendant to return it to a third person, i.e., the depositor.

General Municipal Law 99-m, as is relevant, reads as follows:

"Upon the exoneration of the bail, the money so deposited, * * * shall, * * * be refunded to the person who originally deposited such money."

This court finds that the word "exoneration" as above used includes both remission and vacatur of a bail forfeiture. Thus, should the court grant the motion the money must be returned to the depositor (Balter v. Wyoming County, 70 A.D.2d 1051, 417 N.Y.S.2d 555). Also, the depositor of cash bail " * * * possessean interest in the outcome which the court is bound to protect * * * " (People v. Rounati, 258 App.Div. 585, 587, 17 N.Y.S.2d 199).

As a person whom the court is "bound to protect", and as a person entitled to receive the proceeds of any exonerated bail, a depositor of cash bail has standing to make an application for the return of forfeited bail.

Equal Protections of the Law

Petitioners all claim that their rights to equal protection of the law under the U.S. and New York State constitutions have been violated. They contend that they are unfairly discriminated against because depositors of cash bail have fewer rights than do sureties of bail bonds.

It is undisputed that the New York statutory scheme differentiates between depositors of cash bail and sureties of bail bonds. For example:

1) CPL 210.10,...