Opinion
February 28, 1977
Appeal by the surety of a defendant in a criminal case from an order of the Supreme Court, Queens County, dated March 12, 1976, which denied the surety's motion to remit the forfeiture of defendant's bail and vacate the judgment entered thereon. Order reversed, on the law, and motion granted. The surety's motion was denied by the Criminal Term on the ground that the motion was made "after one year from the forfeiture of bail on either June 24, 1974, or October 28, 1974, the latter forfeiture date being conceded by both parties to be void." In our view, the Criminal Term erred in denying the surety's motion. In view of the fact that the order of forfeiture dated October 29, 1975, effective nunc pro tunc as of October 28, 1974, and the judgment entered on October 30, 1975 were void, and the People so concede, the surety's motion was "not subject to the time limitation applicable to a motion for remission of the forfeiture" (see People v Wirtschafter [National Sur. Corp.], 305 N.Y. 515, 519). Nor is the time limitation contained in CPL 540.30 (subd 2) applicable to the surety's motion for remission of the order of forfeiture dated June 24, 1974. The record clearly indicates that the bail forfeiture of June 24, 1974 was vacated pursuant to defendant's pro se motion which was made on July 24, 1974. Accordingly, the surety's motion should have been granted (People v Maldonado, 49 Misc.2d 641, affd 31 A.D.2d 717). Cohalan, Acting P.J., Margett, Suozzi and Mollen, JJ., concur.