Opinion
Index 100740/19
02-05-2021
THE PEOPLE OF THE STATE OF NEW YORK Respondent, v. DAVID RAMOS, Defendant, FINANCIAL CASUALTY & SURETY INC., Surety. Indictment No. 2391-2015
ELLEN BIBEN, J.:
Unpublished Opinion
DECISION AND ORDER
ELLEN BIBEN, J.:
The motion for remission of the $80,000 bail bond is DENIED.
Procedural History
On June 22, 2015, defendant was arrested and charged with Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03[1][b], a class C felony), and related charges. Upon his arraignment, bail was set at $80,000 bond and $40,000 cash with a 72-hour surety exam. Thereafter, a New York County Grand Jury voted to indict defendant for Criminal Possession of a Weapon in the Second Degree and related charges. On July 9, 2015, the bond was posted on defendant's behalf by Financial Casualty & Surety Inc. (Surety) with Leo Baez, defendant's cousin, as the indemnitor (Indemnitor).
On May 11, 2018, at the conclusion of his jury trial, defendant failed to appear for the verdict. Judge Gregory Carro of New York County Supreme Court Part 32 ordered a warrant and bail was forfeited. Defendant was convicted of Criminal Possession of a Weapon in the Second Degree, Reckless Endangerment in the First Degree, and Criminal Possession of Marijuana in the Second Degree.
On July 20, 2018, the District Attorney's Office filed the forfeiture order against Surety and sent the requisite notice of judgment and payment demand by way of a July 24, 2018 letter and received by Surety on July 27, 2018 (see Petitioner's Motion, Exhibit 2). To date, the court has not been informed that Surety has made a payment on the forfeiture order.
On or about May 8, 2019, defendant was involuntarily returned on the warrant after getting extradited from Florida on a Governor's Warrant, In a motion dated May 10, 2019 but filed with the Court on May 13, 2019, Surety seeks remission of the bail forfeiture pursuant to CPL § 540.30. The People oppose.
Conclusion
CPL § 540.30(2) provides that an application for remission of any bail forfeiture "must be made within one year after the forfeiture of the bail is declared upon at least five days notice to the district attorney...." Since a surety has no vested right to a remission of bail after forfeiture except as allowed by statute, the terms of the statute must be strictly complied with (People v. Pub. Serv. Mut. Ins. Co., 37 N.Y.2d 606, 612 [1975]; People v Cotto, 262 A.D.2d 138 ). Here, the date stamp on Surety's bail remission motion indicates that it was filed on May 13, 2019, more than one year after bail was ordered forfeited by the court. Surety has provided no evidence to the contrary and further fails to demonstrate that the motion was . timely served on the People. Thus, Surety's motion is denied as time-barred.
In any event, the court finds that the application is meritless. CPL §540.30(2) provides that "[t]he court may grant [a remission] application and remit the forfeiture or any part thereof, upon such terms as are just." Interpreting this provision, courts have held that remission "should be granted only under exceptional circumstances and to promote the ends of justice" (People v Scalise, 105 A.D.2d 869, 870 [3d Dept 1984], Iv den 64 N.Y.2d 604 [1985]; People v Peerless Ins Co, 21 A.D.2d 609, 616 [1st Dept 1964]). "Whatever the excuse, if the defendant has contributed by careless, reckless, or willful act to the event offered as an excuse, it should, generally, require a denial of the motion" (Peerless, 21 A.D.2d at 609). The surety has the burden of proof with respect to the requested remission (People v. Fianmca, 306 NY 513 [1954]). An application for remission must be supported by affidavits based upon personal knowledge of the facts and other documents, which demonstrate that: (1) the surety acted reasonably to ensure the defendant's appearance in court; (2) it made efforts to bring the defendant to court after the defendant warranted; and (3) that, due to extraordinary circumstances, (4) the surety (or indemnitor) will suffer extreme financial hardship unless remission is granted (CPL § 540.30[2]).
Here, Surety has failed to sustain its burden. Initially, it has failed to establish that it took reasonable measures to monitor defendant and ensure his attendance at his court appearances. Notably, there is no mention by Surety as to the measures it undertook during the pendancy of defendant's case nor during his actual trial. Surety argues that it "launched an investigation to locate the defendant" and "contacted said indemnitor" to assist (see Petitioner's Motion, Petition by John Medina p. 1-2, para.6). However, it appears that Surety's search for defendant did not begin until four months after defendant absconded when it received a tip from Indemnitor that defendant was boarding a plane in Naples, Florida. Although that tip ultimately led to defendant's detention on September 8, 2019, the investigative efforts cannot be characterized as remarkable given the absence of any information relating to the efforts made by Surety or Indemnitor prior to this belated tip, Although Indemnitor argues that he will suffer extreme financial hardship should the application be denied, there is an insufficient representation of extraordinary circumstances that caused that hardship (see Fiannaca, 306 NY at 516-517; Nationwide Bail Bonds/International Fidelity Ins Co v. People, 244 A.D.2d 556 [2d Dept 1997]). Certainly the loss of one's home is a financial hardship, but it was the clear risk Indemnitor took at the time of the agreement; there is nothing about the circumstances of defendant's flight or the effort made to locate him that qualifies as an extraordinary circumstance that would cast this foreseen consequence under a different light.
According to the People's response, following his arrest on September 8, 2018, defendant was ultimately released from custody due to the administrative failure by the New York State Governor's Office to file the Governor's Warrant seeking extradition within the 90-day timeframe. Integral to his release was defendant's refusal to waive extradition. Ultimately, according to Surety's motion, defendant was located by an agent of Surety in Naples, Florida and was apprehended for the second time after absconding. Defendant once again refused to waive extradition, and on May 8, 2018 was returned on the Governor's Warrant.
Thus, under the circumstances of this case, the motion for remission of the bail is denied.
This opinion constitutes the Decision and Order of the court.