People v. Schonfeld

• Citation: 547 N.Y.S.2d 266,546 N.E.2d 395,74 N.Y.2d 324
• Parties: , 546 N.E.2d 395 The PEOPLE of the State of New York, Respondent, v. David SCHONFELD, Defendant. (Peerless Insurance Company, Appellant.)
• Decision Date: 19 October 1989
• Court: New York Court of Appeals Court of Appeals

Page 266

547 N.Y.S.2d 266

74 N.Y.2d 324, 546 N.E.2d 395

The PEOPLE of the State of New York, Respondent, v. David SCHONFELD, Defendant (Peerless Insurance Company, Appellant.)

Court of Appeals of New York.

Oct. 19, 1989.

James P. Milstein, Albany, for appellant.

Sol Greenberg, Dist. Atty. (John E. Maney, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

In this appeal involving a bail forfeiture, the issue is whether a District Attorney's failure to proceed against the surety within the 60-day period specified in CPL 540.10(2) precludes recovery on the bail bond. Although the People argue that this limitations period is merely directory, both the plain language of the statute and its legislative history persuade us that its provisions are mandatory. Accordingly, we hold that where the People have not taken timely steps to perfect their rights under a bail forfeiture order, their ability to enforce that order may itself be forfeited.

Defendant David Schonfeld, who was being held pending disposition of outstanding criminal charges, was released under a $25,000 bail bond issued by a surety, Peerless Insurance Company. When Schonfeld failed to appear in Albany County Court on October 18, 1985 as directed, the court noted his absence on the record, issued a bench warrant and ordered forfeiture of his bail. On October 22, 1985, the court signed a formal order revoking and forfeiting defendant's bail and directing entry of a $25,000 judgment against Peerless in favor of the county. ¹ However, the People did not pursue the matter until April 2, 1986, at which time they filed the forfeiture order and the County Clerk entered judgment in accordance with its terms. According to an affirmation subsequently submitted by the People, the delay was the result of the District Attorney's plan to "accommodate" Peerless by "holding up execution until [the parties had] an opportunity * * * to try to talk the [c]ourt out of the forfeiture."

After the judgment was entered, Peerless moved under CPLR 5015 and 5240 for an order precluding its enforcement on the ground that the People had not acted within the 60-day time period prescribed by CPL 540.10(2). County Court denied the motion, and the Appellate Division affirmed, 145 A.D.2d 741, 535 N.Y.S.2d 479. Relying upon the analysis in People v. Bennett, 136 N.Y. 482, 32 N.E. 1044, as well as on the broad statutory goal of punishing the criminal defendant and his surety for the former's failure to appear, the Appellate Division held that CPL 540.10(2)'s 60-day provision should not be construed as a limitation upon the People's right to recover from the surety. We granted Peerless permission to appeal. ² We now reverse.

As a threshold matter, we note that this appeal presents no jurisdictional difficulty for this court. Although the caption from the criminal action has been retained for purposes of this appeal, the underlying proceeding, which was functionally analogous to a proceeding on an application for remission of bail forfeiture (see, CPL 540.30), is civil in nature and, accordingly, the appeal is governed by the statutory and constitutional provisions for civil appeals (see, People v. Public Serv. Mut. Ins. Co., 37 N.Y.2d 606, 610-611, 376 N.Y.S.2d 421, 339 N.E.2d 128; Cohen and Karger, Powers of the New York Court of Appeals § 189[d], at 711 [rev. ed.]. Further, the Appellate Division order from which Peerless appeals is final within the meaning of article VI, § 3(b) of the State Constitution, since it affirms a trial court order which finally disposed of all of the issues in the special proceeding commenced by Peerless to challenge a judgment entered against it ex parte (see, Cohen and Karger, op. cit., § 36[c], at 147).

Turning to the merits, we conclude that the courts below erred in their construction of CPL 540.10(2). That subdivision provides that where bail posted in the form of a bail bond has been ordered forfeited, "the district attorney, within sixty days after the adjournment of the court at which such bond was directed to be forfeited, must proceed against the obligor or obligors who executed such bond, in the manner prescribed in subdivision three" (emphasis supplied). The first step in the prescribed procedure is the filing by the District Attorney of the forfeiture order (CPL 540.10[3].

Although the People in this case concededly did not take this step within the 60-day period specified in the statute, they assert that they should nevertheless be permitted to enforce the rights that they claim "vested" upon the issuance of the forfeiture order. According to the People, the late filing of the order and entry of judgment "merely suspends the ability of the county to enforce the judgment" until those steps are accomplished. We disagree.

The People's proposed construction of the statute would render its 60-day requirement without legal or practical effect. Such a result cannot be reconciled with the statute's clear mandatory language (see, People v. Alejandro, 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 ["mandatory provisions of a statute are generally treated as essential"]. While the Legislature's use of the term "must" is not conclusive, such a word of command is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary legislative intent (see, Spears v. Mayor of City of N.Y., 72 N.Y. 442, McKinney's Cons.Laws of N.Y., Book 1, Statutes § 177[a], at 343). Here, all of the surrounding circumstances are in harmony, and they all support a mandatory construction of the statute.

First, CPL 540.10(2) provides that the People "must" proceed against the surety within 60 days in cases involving bail bonds, but that in cases involving cash bail they "may" simply appropriate the deposited sum "at any time" after the occurrence of the later of two specified events. Such a juxtaposition of seemingly mandatory and permissive terms within the same subdivision governing enforcement strongly suggests that the Legislature did not intend to give the People the open-ended discretion to proceed against sureties that they now seek.

Second, the legislative history of the 60-day provision supports the view that the People were not to retain unfettered discretion in determining when to proceed on a bail bond. Before 1926, the statute governing the procedure upon a bail forfeiture provided that the People "may, at any time * * * proceed" against the surety (former Code Crim.Pro. § 595). In that year, however, the statute was amended to provide that the People "within sixty days * * * shall proceed" against the surety (L.1926, ch. 478, § 1). The purpose of the amendment was "to tighten up the law and remedy some of the [existing] bail abuses" and, more specifically, to "provide that the District Attorney shall bring proceedings against the surety * * * within 60 days * * * instead of leaving it discretionary to bring such action at any time " (Letter from Secretary of Committee on Criminal Courts of Charity Organization Society of City of New York to Governor, Bill Jacket, L.1926, ch. 478 [emphasis supplied]. When the former Code of Criminal Procedure was recodified as the Criminal Procedure Law in 1971, the 60-day provision was retained and the word "must" was substituted for "shall," thereby reinforcing the Legislature's mandatory intention.

In light of this specific legislative background, the Appellate Division should not have relied on the general punitive purpose of the bail forfeiture provisions. Although it is true, as the Appellate Division observed, that CPL 540.10, taken as a whole, is designed to punish the defendant and the surety for the defendant's failure to appear in court as required, it is also true that "the Legislature has * * * the right * * * to select the methods to be used in effectuating its goals, as well as to choose the goals themselves" (Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 634, 543 N.Y.S.2d 18, 541 N.E.2d 18). In this instance, the Legislature has opted to effectuate its over-all punitive goal, in part, by eliminating any discretion that the District Attorney's office might otherwise have and...