People v. Nicholas

Appellate Division of the Supreme Court of New York

People v. Nicholas

280 A.D.2d 944, 720 N.Y.S.2d 868, 2001 N.Y. App. Div. LEXIS 1089

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2001

StatusPublished

This text of 280 A.D.2d 944 (People v. Nicholas) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Nicholas, 280 A.D.2d 944, 720 N.Y.S.2d 868, 2001 N.Y. App. Div. LEXIS 1089 (N.Y. Ct. App. 2001).

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—Order reversed on the law without costs, motion granted and stay of enforcement of bail forfeiture order vacated. Memorandum: Supreme Court erred in denying the People’s motion to vacate the stay of enforcement of a bail forfeiture order and in determining that the People were precluded from pursuing a remedy against the surety. When defendant failed to appear for trial on October 14, 1997, the court noted defendant’s absence and issued a bench warrant. The court did not, however, make a finding at that time that defendant was absent without sufficient excuse, which is a prerequisite to the forfeiture of the bail bond (see, CPL 540.10 [1]). On November 20, 1997, the court noted on the record that defendant was unavailable and that his absence was unexcused. At that point, the bail bond was forfeited, and the People were required to proceed against the surety within 60 days (see, CPL 540.10 [former (2)]; People v Schonfeld, 74 NY2d 324, 330; People v Smith, 249 AD2d 983). The court signed a forfeiture order on January 12, 1998, which the People filed the following day, within the 60-day time period.

We disagree with the dissent that the bail bond was forfeited on October 14, 1997, the first time that defendant failed to appear in court. The statute provides that bail is not forfeited until defendant fails to appear “without sufficient excuse” (CPL 540.10 [1]). Here, although defendant failed to appear on October 14, 1997, the court did not determine until November 20, 1997, that his absence was without sufficient excuse.

All concur except Hayes, J., who dissents and votes to affirm in the following Memorandum.

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—Order reversed on the law without costs, motion granted and stay of enforcement of bail forfeiture order vacated. Memorandum: Supreme Court erred in denying the People’s motion to vacate the stay of enforcement of a bail forfeiture order and in determining that the People were precluded from pursuing a remedy against the surety. When defendant failed to appear for trial on October 14, 1997, the court noted defendant’s absence and issued a bench warrant. The court did not, however, make a finding at that time that defendant was absent without sufficient excuse, which is a prerequisite to the forfeiture of the bail bond (see, CPL 540.10 [1]). On November 20, 1997, the court noted on the record that defendant was unavailable and that his absence was unexcused. At that point, the bail bond was forfeited, and the People were required to proceed against the surety within 60 days (see, CPL 540.10 [former (2)]; People v Schonfeld, 74 NY2d 324, 330; People v Smith, 249 AD2d 983). The court signed a forfeiture order on January 12, 1998, which the People filed the following day, within the 60-day time period.

We disagree with the dissent that the bail bond was forfeited on October 14, 1997, the first time that defendant failed to appear in court. The statute provides that bail is not forfeited until defendant fails to appear “without sufficient excuse” (CPL 540.10 [1]). Here, although defendant failed to appear on October 14, 1997, the court did not determine until November 20, 1997, that his absence was without sufficient excuse.

All concur except Hayes, J., who dissents and votes to affirm in the following Memorandum.

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Bluebook (online)

280 A.D.2d 944, 720 N.Y.S.2d 868, 2001 N.Y. App. Div. LEXIS 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nicholas-nyappdiv-2001.

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