Supreme Court, Bronx County, June 21, 2019

Darcel D. Clark, District Attorney (Jeffrey Kiok of counsel), for plaintiff.

Abraham J. Mayers, New York City, for defendant.

The defendant may bear the burden of proof in a bail sufficiency hearing, but once a proper insurance bond and appropriate obligor have been proffered, it falls to the People to establish a factual basis for challenging the bona fides of the obligor. (See generally CPL 520.30 [2].) Defendant Jose Jaquez is charged with criminal conspiracy in the fourth degree and criminal sale of heroin and other controlled substances in a multi-defendant case in Bronx, New York. Bail was set in the amount of $25,000 insurance bail bond or $25,000 cash, with an examination as to sufficiency.^[FN1] (CPL 520.30.) The court first began a hearing on an insurance bond with the defendant's wife as obligor. During the surety hearing, the defendant withdrew the request to post this bond, and offered another insurance bond, with the obligor his daughter's boyfriend. Following a fact-finding hearing at which the District Attorney's office participated, the bond is approved as sufficient.

Defendant Jaquez is a "green cab" licensed driver who lives in the Bronx with his wife and six children. Although the defendant has no state criminal record, he was previously convicted of a federal trafficking offense and served three years in federal prison circa 2002. [*2]Jaquez is now accused of using his cab to ferry and deliver packages of heroin and cocaine around the Bronx on behalf of his codefendants. He is part of a 205 count indictment alleging conspiracy to distribute narcotics throughout the United States, including in the Bronx.

Defendant's wife owns a storefront business offering income tax preparation, a travel agency and notary services, among others. She was the proposed obligor on the initial insurance bond. After the People demonstrated during her testimony that her cash-in, cash-out business appeared to be nothing more than a laundering operation, the defense withdrew its application for approval of the bond.

The defense then proffered a second insurance company bond through the same company, with the obligor being the purported{**64 Misc 3d at 407} boyfriend of the defendant's daughter. The proposed new obligor (Williams) is a registered nurse and a salaried employee earning approximately $85,000 annually. Williams testified that he has been dating the defendant's daughter for about a year and has had frequent, though not in-depth contact with the defendant. Williams did travel with his girlfriend's family, including the defendant, to Mexico on a family vacation in 2018. He did not know what the charges were against the defendant until he was told by defense counsel that they were "narcotics." He agreed to help because his girlfriend said her mother had "tried to post bond but couldn't" and he really did not know much about the circumstances. Williams paid a nonrefundable $1,760 premium on the bond by charging it to his credit card, and would be charged an additional $2,500 if the defendant were to abscond. He did not ask and no one promised to pay him back for the premium.

A representative from the bond company testified that the company takes payment by credit card in the ordinary course of its business. The bond company's fees and its business as a whole is state regulated. (See Insurance Law § 6802.)

CPL 520.30 provides in relevant part:

"1. Following the posting of a bail bond and the justifying affidavit or affidavits . . . the court may conduct an inquiry for the purpose of determining the reliability of the obligors . . . and whether any feature of the undertaking contravenes public policy . . . . The court may inquire into any matter stated or required to be stated in the justifying affidavits, and may also inquire into other matters appropriate to the determination, which include but are not limited to the following:

"(a) The background, character and reputation of any obligor; and, in the case of an insurance company bail bond, the qualifications of the surety-obligor and its executing agent; and

"(b) The source of any money or property deposited by any obligor as security, and whether any such money or property constitutes the fruits of criminal or unlawful conduct; and

"(c) The source of any money or property delivered or agreed to be delivered to any obligor as indemnification on the bond, and whether any such money{**64 Misc 3d at 408} or property constitutes the fruits of criminal or unlawful conduct; and

"(d) The background, character and reputation of any person who has indemnified or agreed to indemnify an obligor upon the bond . . . ."

The obligor Williams was credible, had an ascertainable connection to the defendant's [*3]family and had no expectation of repayment through legal or illegal sources. Williams did not know the nature of the charges—specifically that they involve a lucrative illegal business—when he agreed to pay the premium and serve as the obligor on the bail bond. The fact that he appeared on the heels of a less savory obligor does not diminish his personal reasons for taking on the obligation or his ability to do so. The People cross-examined Williams about his total debt load, and he did not seem concerned about the additional burden posed by the bond premiums.

The defendant has the burden of proving to a court's satisfaction, by a preponderance of the evidence, that the cash or collateral posted to secure a bond originates from a legitimate source, and is not the fruit of criminal or illegal conduct. (People ex rel. Aidala v Warden, Rikers Is. Corr. Facility, 100 AD3d 667 [2d Dept 2012]; People v Esquivel, 158 Misc 2d 720 [Sup Ct, NY County 1993]; see also People ex rel. Francis v Brann, 170 AD3d 1254 [2d Dept 2019].) As the court reasoned in People v Esquivel (158 Misc 2d at 727), placing this burden on the defendant in a collateral matter to his defense has precedent, and makes sense in terms of the defendant's access to the evidence necessary for the sufficiency hearing. However once the defendant puts forward a credible W-2 wage earner with ties to the defendant, the burden should shift to the People to credibly undermine the obligor's legitimacy. Whether the obligor is showing good sense by getting financially involved with a family before he becomes a blood relative is not a public policy concern in this context. The obligor need not be a blood relative in order to establish "the ties that bind."^[FN2] (Cf. Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989].) Nor should the obligor's stretching his budget too thin by charging the premium on his credit card be of primary concern.^[FN3] There was no testimony or other evidence of his exceeding a credit limit or a poor credit{**64 Misc 3d at 409} score. More importantly, the People failed to establish that the obligor relied on or expects repayment in any form, particularly from any illegal source.

As a practical matter, paying with future credit is easier for some than supplying cash on the barrel. Accordingly, the prosecution was permitted free reign to inquire about Williams' motives, actions, relationships with the defendant's family and ability to pay. The Criminal Procedure Law grants the hearing court latitude to allow this broad scope of inquiry. (See CPL 520.30 [1]; Matter of Johnson v Crane, 171 AD2d 537 [1st Dept 1991].)

During the hearing, the People were only curtailed in questioning the bond company representative during a largely irrelevant inquiry into the wisdom of her company accepting credit card payments. The posting of bond through the use of a credit card premium in and of itself does not violate public policy. The prosecution tried to suggest that payment of the premiums by credit card was less than a legitimate business model. In this day and age, when businesses are abandoning cash altogether, that seems an outmoded argument. The Criminal Procedure Law allows credit card payments for bail itself. (CPL 520.10 [1] [i].) Moreover, the bail bond industry is highly regulated under the New York Insurance Law; it is for New York State regulators to determine what practices are legal in the bond industry.

Having had the opportunity to participate (see CPL 520.30 [2]), the People have failed to persuade this court that anything on the surface of the obligor's application merits additional scrutiny. The bond is approved.