People v. Parkin
| Decision Date | 27 February 1934 |
| Citation | 189 N.E. 480,263 N.Y. 428 |
| Parties | PEOPLE v. PARKIN et al. SAME v. POFFE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Max Parkin having been twice indicted, and Marcel Poffe, alias Puffo, having been once indicted, they were admitted to bail on each indictment, and the Concord Casualty & Surety Company executed the bonds as surety. From an order of the Appellate Division (240 App. Div. 808, 266 N. Y. S. 945), which reversed an order of the Special Term and denied a motion for remission of forfeiture of bail, the surety appeals.
Order of the Appellate Division reversed, and order of the Special Term affirmed.
LEHMAN, J., dissenting.Appeal from Supreme Court, Appellate Division, First department.
J. Sidney Bernstein, Arthur A. Birnkrant, and Fred Flatow, all of New York City, for appellant.
William Copeland Dodge, Dist. Atty. (Felix C. Benvenga and Joseph F. McLoughlin, both of New York City, of counsel), for respondent.
On January 25, 1933, the defendant Marcel Poffe was admitted to bail in the sum of $10,000 to answer an indictment for assault. On February 23, 1933, the defendant Max Parkin was admitted to bail in the sum of $20,000 to answer an indictment for robbery, assault, and grand larceny, and in the sum of $10,000 to answer an indictment for assault. In each case the Concord Casualty & Surety Company executed the bond as surety.
The cases against these defendants appeared on the trial calendar of the Court of General Sessions for trial on February 7th (Part 2), February 14th (Part 2), February 23d (Part 2), May 5th (Part 6), and May 8th (Part 6), on each of which occasions the defendants appeared, but the people were not ready.
On May 18, 1933, the cases again appeared on the trial calendar of Part 6 before Judge Corrigan, but the defendants were not present in person. Their attorney, Mr. Michael I. Winter, at that time, however, submitted an affidavit of his engagement in another court and applied for an adjournment, but the application was denied, and forfeiture of the bonds was directed.
An application for the remission of the forfeiture was made under sections 597 and 598 of the Code of Criminal Procedure. An application for the granting of such relief is addressed to the discretion of the court and should be exercised only under exceptional circumstances and to promote the ends of justice. People v. Cohen, 245 N. Y. 419, 421, 157 N. E. 515. Facts which address themselves to the discretion of the court in this case are as follows: The failure of the principalsto appear in court on May 18th was due to the fact that their attorney had advised them that it would not be necessary for them to appear as he would make an application for an adjournment which he expected would be granted; that negotiations had been entered into to have the defendants appear in court on June 12th; that prior to June 10, 1933, defendants were killed; that if defendants had been alive they would have been in court on June 12th; that no one was prejudiced by the failure to produce the defendants on the day when the order of forfeiture was made, and that the people have lost no rights by reason of the delay.
Appellant first contends that as matter of law the death of the defendants exonerated the bail, as the surety company was prevented from surrendering the defendants by reason of their death. The court doubtless has power, in the exercise of discretion, to remit a forfeiture in such a case, but the surety is not entitled to such remission as matter of right. It is only where the principal dies before the day of performance that bail is exonerated. Taylor v. Taintor, 83 U. S. (16 Wall.) 366, 369,21 L. Ed. 287;State v. Stanley, 104 Kan. 475, 179 P. 361. A forfeiture has not, as a rule, been remitted where the accused was not in custody and produced. People v. Heit, 152 App. Div. 179, 136 N. Y. S. 651. In People v. Wissig, 7 Daly, 23, the court made some pertinent observations to the effect that the ends of justice would in no way be served by requiring the surety to pay the penalty of the bond when death occurs after forfeiture. This obiter, while not a rule of law, might be a guide to judicial discretion.
The Consolidation Act (Laws 1882, c. 410, §§ 1482, 1483) requires a certificate of the district attorney that the people of the state of New York have lost no rights by reason of the failure of a surety to produce a principal in compliance with the terms of a recognizance given by them, and that by reason of the principal being produced the people of the ...
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State v. Coronel
...the principal dies before the day of performance" falls within the above noted category of cases. Id.; see also People v. Parkin, 263 N.Y. 428, 189 N.E. 480 (1934) (suggesting that death of defendant prior to appearance allows remittance of We do not agree, however, that remittance should b......
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