Opinion
March 10, 1952.
An order was made in the County Court, Kings County, directing one Harry Gross to enter into a recognizance in the sum of $250,000 to appear and testify as a material witness as provided for in section 618-b of the Code of Criminal Procedure. Subsequently the said court reduced the amount of the recognizance to $25,000, on condition that the material witness would be in the protective custody of the District Attorney of Kings County. A recognizance in that amount was furnished with the corporate appellant as surety thereon. The individual appellants are the indemnitors for the corporate surety. The condition of the undertaking is that Gross "shall appear and testify at the court in which the above-mentioned action may be tried and prosecuted; and in any and all courts in which the same may be prosecuted; and shall at all times render himself amenable to the orders and process of the court or courts". Upon the principal's failure to appear the recognizance was ordered forfeited by an order of the County Court, Kings County. The District Attorney filed a certified copy of the order with the recognizance in the County Clerk's office, Kings County, with a written request that judgment be docketed thereon, "in accordance with the provisions of Section 595 of the Code of Criminal Procedure." The clerk docketed judgment thereon, and the appellants moved in the Supreme Court, Kings County, to vacate the judgment and to remit the forfeiture, as provided for in section 597 of the Code of Criminal Procedure. The court held that section 597 had no application to recognizances furnished on behalf of material witnesses as distinguished from those furnished on behalf of defendants, and that, therefore, the Supreme Court had no jurisdiction. The court denied the motion, without prejudice to an application to the County Court. Order reversed, without costs, and matter remitted to the Special Term to determine the application on the merits. In our opinion, sections 595 and 597 of the Code of Criminal Procedure are applicable to recognizances furnished by or on behalf of material witnesses, pursuant to section 618-b of the Code of Criminal Procedure. Nolan, P.J., Carswell, Wenzel, MacCrate and Schmidt, JJ., concur.