Opinion
Indictment No. 5193/13 Index No. 100653/2017 INDEX NO. 156851/2016
09-17-2018
THE PEOPLE OF THE STATE OF NEW YORK v. ODEL RHODES, Defendant, AFFORDABLE BAIL BONDS, INC AND AMERICAN SURETY COMPANY, Surety.
NYSCEF DOC. NO. 25 DECISION AND ORDER ELLEN BIBEN, J. :
The motion for remission of the $15,000 bail bond is DENIED.
Procedural History
According to the People's opposition papers, on November 19, 2013, defendant was arrested and bail was set at $15,000 bond and $7,500 cash with a 72-hour surety review at his criminal court arraignment. On November 27, 2013, a New York County Grand Jury voted to indict defendant for Criminal Possession of a Controlled Substance in the Third Degree. On February 21, 2014, the bond was posted on defendant's behalf.
On December 10, 2015, before the pre-trial hearing commenced, defendant pled guilty to third-degree possession of a controlled substance (Penal Law § 220.16[1]). The plea minutes demonstrate that the court advised defendant not to "mess up" and ordered bail to be continued pending sentence. At the next court appearance, February 19, 2016, defendant's appearance was excused. On February 26, 2016, defendant failed to appear and a bench-warrant was ordered but stayed. On April 22, 2016, defendant again failed to appear and the bench warrant was issued and bail was forfeited. According to Surety, its investigators discovered that defendant was hospitalized at the time, and attaches to its motion Exhibit C, Harlem Hospital medical records, which appear to include records relating to outpatient treatment administered on April 22, 2016, April 24, 2016, and April 28, 2016, for various reasons: the April 22, 2016 record indicates that defendant was treated for "low back pain" and was released the same day; the April 24, 2016 record indicates that defendant was treated for "unspecified early complications of trauma, initial encounter;" and the April 28, 2016 record indicates that he was seen by a dentist.
Defendant attaches as Exhibit F to his motion, a copy of the court jacket in this case which indicates that bail was exonerated, and defendant was released on his own recognizance on December 10, 2015 after pleading guilty. However, the plea minutes demonstrate otherwise; the court plainly stated that bail was continued. Thus, the notation on the court jacket appears to be a clerical error.
On July 11, 2016, Surety paid the full value of the bond to New York County and satisfied the judgment entered against it.
On August 4, 2016, defendant was involuntarily returned on the warrant, after getting arrested one day earlier for Criminal Possession of a Forged Instrument in the Third Degree.
In a motion served on the District Attorney's Office on April 28, 2017, Surety seeks remission of the bail forfeiture pursuant to CPL § 540.30 and CPLR § 5015, in the interest of justice.
Conclusion
CPL § 540.30 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...." Here, Surety's bail remission motion was filed more than one year after bail was ordered forfeited by the court and, 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 AD2d 869, 870 [3d Dept 1984], lv den 64 NY2d 604 [1985]; People v Peerless Ins Co, 21 AD2d 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 AD2d at 609). The surety has the burden of proof with respect to the requested remission (People v. Fiannaca, 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. Surety has failed to provide an affidavit from defendant or offer anyone with personal knowledge of defendant's failure to appear in court on April 22, 2016. Moreover, although Surety does provide a medical record that shows defendant was treated for low back pain at Harlem Hospital on April 22, 2016, the record also indicates that defendant was released the same day. Surety does not allege that defendant informed counsel that he was hospitalized that day or that defendant attempted to contact the court to explain his absence, even though he clearly knew how to reach both counsel and the court. Indeed, when defendant failed to appear in court on February 26, 2016 he sent written communications to his lawyer and the court explaining the reason for his absence (see Surety's Exhibit D). Surety also fails to provide an explanation for defendant's failure to return to court the following day or any day thereafter leading up to his arrest. Moreover, although Surety loosely contends that defendant could not appear in court on this case because he was engaged in Family Court proceedings, none of the documentation provided demonstrates that defendant was in Family Court on April 22, 2016. The failure to provide any sworn facts or viable explanations for defendant's absence that would demonstrate exceptional circumstances to justify a remission is fatal to Surety's application. Indeed, without any plausible explanation, it is not far-fetched to assume that defendant intentionally failed to appear in court.
Moreover, Surety has also failed to establish that it took reasonable measures to monitor defendant and ensure his attendance at his court appearances and failed to allege that the indemnitor will suffer extreme financial hardship should the application be denied (see Fiannaca, 306 NY at 516-517; Nationwide Bail Bonds/International Fidelity Ins Co v. People, 244 AD2d 556 [2d Dept 1997]).
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. Dated: September 17, 2018
New York, New York
/s/_________
Ellen Biben, JSC