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Code of Criminal Procedure


The surety herein applies for an order under sections 597 and 598 of the Code of Criminal Procedure remitting the forfeiture of cash bail deposited by her for and on behalf of the defendant, who was theretofore charged with disorderly conduct in violation of subdivision 8 of section 722 of the Penal Law.

A New York Criminal attorney said that the facts explaining and excusing the defendant’s failure to appear for a hearing on April 30, 1953, have been fully set forth in the moving papers and warrant the exercise of discretion by this court in remitting the forfeiture of the bail deposit heretofore made by the surety if this court has the power to order such remission.

Upon the argument of the appeal, and in answer to the court’s inquiry as to why this motion was not made in the County Court of Queens County, the court was informed that that court had refused to entertain applications for remissions of forfeitures not originating in that court.
“The right of a court to remit forfeiture of bail is not an inherent prerogative but exists only by virtue of statutory authority.”

Section 598 of the Code of Criminal Procedure provides that “The application [to remit a forfeiture] must be made within one year after the forfeiture of such undertaking or deposit is declared upon at least five days’ notice to the district attorney of the county.”

In this case, less than five days’ notice was given to the District Attorney but upon the argument of this motion he expressly waived that provision and consented that the motion be heard upon its merits.

Section 597 of the Code of Criminal Procedure, upon which the power of this court to remit a forfeiture must depend, if it be held that it has such power, reads as follows: “After the forfeiture of the undertaking or deposit, as provided in this article, the court directing the forfeiture, the county court of the county, or in the city of New York, the supreme court may remit the forfeiture or any part thereof, upon such terms as are just.”

The pertinent portions of the above section, so far as this motion is concerned, are the words “as provided in this article” and “the court directing the forfeiture”. The article in question is article 7 and it deals with forfeiture of the undertaking of bail or of the deposit of money when “the defendant neglects to appear for arraignment, or for trial or judgment, or upon any other occasion where his presence in court may be lawfully required and there is no limit therein or in any place in the entire article to any particular criminal court or courts. All courts of criminal jurisdiction of the State of New York seem to be included within its provisions for section 595 of the Code of Criminal Procedure states that “If the forfeiture be not discharged the district attorney, within sixty days after the adjournment of the court at which the bail was directed to be forfeited, shall proceed against any surety upon his undertaking.”

Thus, section 740 does not include within those courts having jurisdiction to remit a forfeiture “the court directing the forfeiture” which is given such power by section 597.

Both sections 740 and 597 of the Code of Criminal Procedure were derived from sections 37 and 38 of title 6, chapter 8, part 3 of the Revised Statutes of this State, and were included in the Code of Criminal Procedure by section 1 of chapter 880 of the Laws of 1895, effective January 1, 1896.

It should be further noted that section 740 gives “the county court of the county, or in the city of New York, the supreme court”, the power to remit forfeitures “in the cases and in the manner provided in the judiciary law.” Section 798 of the Judiciary Law, so far as here pertinent, reads as follows: “Upon the application of a person, who has been fined by a court, or of a person whose recognizance has been forfeited, or of his surety, the county court of the county in which the term of the court was held, where the fine was imposed, or the recognizance taken, may make an order, remitting the fine, wholly or partly, or the forfeiture of the recognizance, or part of the penalty thereof; or it may discharge the recognizance.”

In addition, section 799-a of the Judiciary Law provides that “An application for an order, as prescribed in section seven hundred and ninety-eight, cannot be heard, until such notice thereof as a court deems reasonable, has been given to the district-attorney, whereas section 598 of the Code of Criminal Procedure provides that “The application must be made upon at least five days’ notice to the district attorney of the county”.

The learned District Attorney in his memorandum of law disagrees with this conclusion. He states: “It is, therefore, concluded that despite the fact that Section 740 of the Code of Criminal Procedure is contained under the title dealing with Courts of Special Sessions outside of the City of New York, the provision therein relative to the City of New York may not be disregarded and must be given effect; that Section 740, therefore, limits the general applicability of Section 597 of the Code of Criminal Procedure; and that, therefore, in the City of New York only the County Courts and the Supreme Court have jurisdiction to remit a forfeiture of bail.”

Section 102 of the New York City Criminal Courts Act, which provides for the general jurisdiction of the Magistrate’s Court of the City of New York states that “The chief city magistrate and the city magistrates have all the powers and jurisdiction possessed by city magistrates of the city of New York on the first day of April, nineteen hundred and ten.”
In construing a statute, and for this purpose the Code of Criminal Procedure must be considered as one statute. No words in a statute should be rejected when it is practicable to give to each a distinct and consistent meaning. The court, therefore, concludes, that in an effort to harmonize the provisions of the various sections here being construed, without doing violence to any of them, and “Proceeding, as we must, upon the assumption that the Legislature did not deliberately place in the statute a phrase which was intended to serve no purpose”, it should be held that sections 740 of the Code of Criminal Procedure and 798 of the Judiciary Law are permissive but not exclusive, and do not act as a limitation upon the specific and definite rights granted by the Legislature in sections 597 and 598 of the Code of Criminal Procedure, particularly since these latter two sections are of “State-wide application”

Under the circumstances, and recognizing the precedent making nature of the determination here made, and cognizant of the District Attorney’s contention that this court is proceeding beyond and in excess of its jurisdiction, this court will withhold entering an order hereon for five days after the rendition of this opinion to afford the District Attorney an opportunity to apply to the Supreme Court for an order in the nature of an order of prohibition pursuant to article 78 of the Civil Practice Act.

For quality advice and legal services, you can consult our New York Criminal Attorneys here in Stephen Bilkis and Associates. We are here to help you solve your problems. In case of family cases, our New York Family Lawyers will assist you in filing the necessary petitions before the courts.

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