Opinion
February 13, 1962
In a proceeding arising out of a criminal action in the County Court, Kings County, in which the defendant's $1,000 bail bond, on which the Public Service Mutual Insurance Company was the surety, had been declared forfeited by reason of defendant's nonappearance, the proceeding being brought pursuant to statute (Code Crim. Pro., §§ 597, 598; Judiciary Law, § 798 et seq.) by the People against the surety to execute the bail forfeiture, and the surety having made a cross application in such proceeding to vacate the forfeiture, the People appeal from so much of an order of said court, dated August 8, 1961, as, upon reargument, granted conditionally the surety's cross application and denied conditionally the People's application (such grant and denial respectively having become absolute in consequence of the People's noncompliance with the condition). Order insofar as appealed from reversed on the law, with costs; the People's application is granted unconditionally and the surety's cross application is denied unconditionally. No questions of fact were considered by this court. In our opinion, remission of a forfeiture is not warranted upon the sole showing made here, namely: that the principal's failure to appear was due to his imprisonment in another State (cf. People v. Lexington Sur. Ind. Co., 238 App. Div. 797; People v. Gropper, 206 App. Div. 754; see, also, note in 4 A.L.R. 2d 446). Ughetta, Christ and Brennan, JJ., concur; Beldock, P.J., and Kleinfeld, J., concur in the reversal of the order but dissent as to the disposition made of the respective applications, and vote to remit the proceeding to the Kings County Court for proof as to whether the imprisonment of the principal (the defendant in the criminal action) in Florida on the date he was required to appear in the said County Court for trial was pursuant to a warrant of extradition for a crime committed before the bail bond was posted in July, 1959; or whether it was for a crime committed in Florida after the principal had gone there voluntarily subsequent to the posting of the bail bond. If the former, the forfeiture was properly vacated. ( People v. Moore, 4 N.Y. Crim. Rep. 205.) If the latter, the forfeiture was improperly vacated (see cases cited in 26 A.L.R. 412.)