Supreme Court, Nassau County, December 19, 2017

Ivy M. Eatman, pro se, as agent for EBIC Insurance Company, plaintiff.

Mitchell Barnett, Garden City, for defendant.

Madeline Singas, District Attorney, Mineola (Mary Faldich of counsel), for the People of the State of New York.

Application to vacate the forfeiture and the remission of bail, for EBIC Insurance Company, by its agent in fact and surety agent Empire Bail Bonds, is determined as hereinafter provided.

The defendant, Kane Moore, was arrested on October 13, 2015, and charged with aggravated criminal contempt under Penal Law § 215.52 and assault in the third degree under Penal Law § 120.00. Defendant was arraigned before a Nassau County District Court Judge and bail was set in the amount of $2,000 bond over $1,000 cash. On October 19, 2015, Empire Bonding and Insurance Company (EBIC) posted the $2,000 bond to secure the defendant Kane Moore's release.

On December 1, 2015, the defendant failed to appear at a regularly scheduled court calendar date before another judge of the Nassau County Court. That judge stayed the bench warrant until December 11, 2015. On that date the defendant once again failed to appear and a bench warrant was issued forthwith. However, forfeiture of the bail bond was stayed until January 5, 2016, when the matter was transferred before this court. On January 6, 2016, this court signed an order forfeiting bail and on January 11, 2016, a certified copy of that order was forwarded to EBIC, together with a letter from the Nassau County Court Clerk's office informing the surety that under CPL 540.30 they have one year to file a motion for remittance of bail from the date of the order (Jan. 6, 2016).

On May 16, 2016, the defendant was arrested and charged with criminal contempt in the first degree (Penal Law § 215.51) and assault in the third degree (Penal Law § 120.00). He was also charged with bail jumping in the second degree (Penal Law § 215.56) as a result of the issuance of the warrant for failure to appear on December 11, 2015.

On May 19, 2016, the defendant involuntarily appeared before this court on all charges, old and new. On September 2, 2016, defendant pleaded guilty to attempted aggravated criminal contempt (Penal Law §§ 110.00, 215.52) and assault in the third degree (Penal Law § 120.00 [1]) and on November 15, {**59 Misc 3d at 359}2016, the defendant was sentenced in accordance with a plea agreement.

On August 14, 2017, the surety filed the within motion to vacate the forfeiture and for remission of bail. The People filed responding papers on September 12, 2017. The People oppose primarily on the grounds that the one-year statute of limitations has expired and that in any event, the surety failed to meet its burden of entitlement to bail remission.

Under CPL 540.30 (2), an application for remission of bail "must be made within one year after the forfeiture of the bail." (People v Gonzalez, 280 AD2d 274 [1st Dept 2001].) It is the undisputable fact that bail was forfeited on January 6, 2016, notice was sent to the surety on January 11, 2016, and this motion was not made until August 14, 2017, a full seven months beyond the one-year statute of limitations.

It is clear that the application is indeed being made beyond the statute of limitations, and there are no grounds present that would require the court to waive this statutory impediment. (Matter of Seneca Ins. Co. v People, 40 AD3d 1151 [3d Dept 2007]; People v Salabarria, 121 AD2d 438 [2d Dept 1986].) The courts are required to interpret the time limits as set forth in the CPL, strictly, so the construction of the CPL shall remain uniform. (People v Schonfeld, 145 AD2d 741 [3d Dept 1988].)

This court notes that this statute of limitations, being restricted to one year, is one of the most limited time periods under New York State law. However, although far from a new law, this issue appears to be of first impression. Therefore, this court will review the constitutionality of the law, particularly from a due process perspective.

It has long been the "traditional policy" of the New York courts "to construe statutes, if possible, in such a manner as to uphold their constitutionality" (People v Nieves, 36 NY2d 396, 400 [1975]). There is an exceedingly strong presumption of constitutionality of both local and state laws (McMinn v Town of Oyster Bay, 66 NY2d 544 [1985]). The New York Court of Appeals has ruled, "[t]hat a legislative enactment will be presumed constitutional is an elementary but significant principle of law"; the Court added, "The strength of this presumption, sometimes underestimated, has been repeatedly underscored by the courts of this State" (Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505 [1978]).

It is within the legislature's purview, absent constitutional infirmity, to set reasonable limitations on actions. (Matter of {**59 Misc 3d at 360}Commissioner of Social Servs. v Efrain V., 122 Misc 2d 667 [1984].) A statute of limitations does not deprive a person of property without due process of law, unless, it unreasonably limits the opportunity to enforce the right provided. (Logan v Zimmerman Brush Co., 455 US 422 [1982]; People v Jaquez, 309 AD2d 635 [1st Dept 2003].) From a historic constitutional perspective, a one-year statute of limitations in and of itself will not violate due process considerations. (See Blinn v Nelson, 222 US 1 [1911].)

When engaging in evaluations of both federal and New York State constitutional due process considerations, laws must clearly be enacted with a significant "content-neutral government interest" that is narrowly tailored to its purpose. (People v Barton, 8 NY3d 70, 78 [2006].) It has been held that an appropriate tailored government purpose may only be declared invalid if it is determined to be unconstitutional beyond a reasonable doubt. (Asian Ams. for Equality v Koch, 72 NY2d 121 [1988].)

It has been held that remission of forfeiture of a bail bond is considered an "act of grace" which the legislature may take away if it no longer deems it serves its continued purpose. (People v Public Serv. Mut. Ins. Co., 43 AD2d 963, 963 [2d Dept 1974].) Remission is purely statutory and its provisions must be strictly construed. (People v Santiago, 175 Misc 2d 268 [1998].) The act of remission is not a "claim of relief as of right," and therefore, the right of the one seeking remission is balanced against the stronger interests of the State. (People v On Sight Mobile Opticians, 24 NY3d 1107 [2014].)

Thus, as a limited statutorily created right, bail remission due process considerations are set at minimum when balanced against far more significant state interests. The legislature limited remission to a one-year period because the State's interest may become irreparably damaged. (People v Schonfeld, 145 AD2d 741 [3d Dept 1988].) This is particularly significant as the county treasurer would no longer be able to release the bail as it would no longer be in the county's possession. (People v Morales, 108 AD2d 827 [2d Dept 1985].) Indeed, one Appellate Division has declared that the one-year limited period is jurisdictional in nature and cannot be waived as a result. (People v Cotto, 262 AD2d 138 [1st Dept 1999].)

Accordingly, the court finds CPL 540.30 (2) constitutional under both the Federal and New York State Constitutions and therefore finds no grounds to vacate the forfeiture or remit bail.{**59 Misc 3d at 361}

In addition, the court further notes, that, in any event, the surety has failed to meet its burden of proof for remission of bail. (People v Santiago, 175 Misc 2d 268 [1998].)

Application for remission of forfeiture of bail is addressed to the discretion of the court and should be granted only under exceptional circumstances and to promote the ends of justice. (People v Scalise, 105 AD2d 869 [3d Dept 1984].) A surety seeking remission of bail has the burden of proving exceptional circumstances and that there is no prejudice to the People or loss of the rights of the People. (People v Public Serv. Mut. Ins. Co., 43 AD2d 963 [2d Dept 1974].)

The surety fails to present any grounds that would be considered exceptional circumstances. The surety's affirmation that the defendant was under arrest at the time of the issuance of the warrant and bail forfeiture is unsubstantiated and based on hearsay. (People v Public Serv. Mut. Ins. Co. [Santiago], 37 NY2d 606 [1975].) The same holds true for the allegation that the bond was exonerated but forfeiture was not vacated upon the defendant's rearrest on some unspecified date for an unspecified and undocumented case. Indeed, if the defendant was arrested at the time, then it was likely a result of his "careless, reckless and willful act" and is not an excuse for failure to appear in court. (People v Shell, 266 AD2d 28 [1st Dept 1999].)

The surety has also failed to satisfy this court that the People are without prejudice. The "People have a vital interest in having indictments disposed of promptly and the right to have cases tried on the date set." (People v Continental Cas. Co., 301 NY 79, 85 [1950]; People v Lennon, 125 AD3d 1009 [2d Dept 2015].) Lastly, the court notes that where the application for return of bail is barred by the statute of limitations, as in the case at bar, whether the State has lost any rights is immaterial as to the end result of denial. (People v Leonard, 16 Misc 2d 904 [1958].)

Accordingly, the application by the surety, by its attorney-in-fact, to vacate the forfeiture and for remission of bail, is denied in its entirety. In reaching this determination, the court reviewed the surety's motion papers dated August 14, 2017, and the opposing papers submitted by the Office of the Nassau County District Attorney's office dated September 12, 2017.