Opinion 88-31


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES -- Refund (refund by county treasurer of 2% cash bail fee)

COUNTY TREASURER -- Powers and Duties (refund of 2% cash bail fee)

GENERAL MUNICIPAL LAW, §99-m: A county treasurer is not required to refund the fee prescribed in section 99-m of the General Municipal Law, where the defendant in a criminal action is convicted of a lesser included or different offense than the offense originally charged.

You ask whether a county treasurer is required to refund the fee prescribed in section 99-m of the General Municipal Law where the defendant in a criminal action is convicted of a lesser included or different offense than the offense originally charged.

Section 99-m of the General Municipal Law provides that:

"When, pursuant to the provisions of title P of the criminal procedure law [§500.10 et seq.] or the provisions of the family court act [§§153, 155, 155-a], a sum of money deposited in connection with a cash bail or a partially secured bail bond is received by a court or other authorized public servant or agency, such money shall be deposited in the same manner as may be by law provided for the deposit of money generally received by such court, public servant or agency. Except as otherwise provided herein, the county treasurer, or, in the city of New York, the commissioner of finance, shall be entitled to a fee of two per centum of the amount of money so deposited. Except as otherwise provided by an order issued pursuant to section 420.10 of the criminal procedure law, upon the exoneration or remission of the bail, the money so deposited, less such fee, shall, by order of the appropriate court, be refunded to the person who originally deposited such money. Upon a termination of the case at the trial level with a dismissal or acquittal, the two per centum fee so retained shall, by order of the appropriate court, be refunded to the person who originally deposited such money." [Emphasis supplied].

Thus, under section 99-m, where a county treasurer or, in the City of New York, the commissioner of finance, receives a sum of money deposited in connection with a cash bail (see Criminal Procedure Law [CPL], §§500.10[10], 520.15[1]) or a partially secured bail bond (see CPL, §500.10[18]), the treasurer or the commissioner of finance, with certain exceptions, is entitled to a fee equal to 2% of the amount of money so deposited. This fee is intended to compensate the treasurer or finance commissioner for receiving, keeping and paying out the bail (see 1972 Opns St Comp No. 72-661, unreported).

Pursuant to General Municipal Law, §99-m, the county treasurer or, in the City of New York, the commissioner of finance, upon receipt of money deposited in connection with bail, is required to deposit the money in the same manner provided by law for the deposit of money generally by that official (see, e.g., County Law, §212). That statute further provides that, except as is otherwise provided therein, the money so deposited, less the 2% fee, shall be refunded to the person who originally deposited the money upon exoneration or remission of the bail by court order unless the court orders the cash bail to be applied to the payment of a fine, restitution or reparation (CPL, §420.10[1][e]; see Opn No. 72-661, supra).

Bail is "exonerated" in a variety of circumstances, including when the defendant surrenders to the custody of the court (CPL, §530.80); upon dismissal of an indictment or prosecutor's information (CPL, §§210.45 and 170.50); and upon a verdict of complete acquittal (CPL, §330.10). "Remission" of bail, either in whole or in part, occurs after the bail has been forfeited, upon application to the court (CPL, §540.30), where the defendant is returned to the custody of the court or there are reasons to ameliorate the harsh effects of forfeiture on the surety (see People v Public Service Mutual Insurance Company, 37 NY2d 606, 376 NYS2d 421, 339 NE2d 128 [1975]).

Section 99-m of the General Municipal Law also provides that "upon a termination of the case at the trial level with a dismissal or acquittal" (emphasis supplied), the county treasurer or, in the City of New York, the commissioner of finance must, pursuant to court order, refund the 2% fee to the person who originally deposited the money. The refund requirement was added to section 99-m in 1986 (L 1986, ch 187), to cure the perceived inequity in exacting the 2% fee from the bail deposited on behalf of a defendant who is absolved of criminal liability (see NY Legis Ann., 1986, p 128).

Section 99-m does not define the word "case", but CPL, §1.20(16) defines a "criminal action" as: (a) commencing with the filing of an accusatory instrument; (b) including all further accusatory instruments directly derived from the initial one; and (c) terminating with the imposition of sentence or some other final disposition of the last accusatory instrument filed "in the case". An "accusatory instrument" is one of seven types of written accusation charging one or more felonies, misdemeanors, offenses or infractions (CPL, §1.20[1]). In advance of trial, accusatory instruments or individual charges may be dismissed (see, e.g., CPL, §§170.30, 210.20), or the accused may plead guilty to some or all of the charges or to lesser included offenses (see CPL, §§1.20[37], 220.10, 220.20, 340.20). Should the accused plead not guilty to the charges in the accusatory instrument and a trial ensue, depending on the evidence, the accused can be found guilty of some or all of the charges in the accusatory instrument or of lesser included offenses (see CPL, §§300.10, 300.40, 300.50, 320.20, 350.10, 360.45, 360.50 and 360.55).

Where a defendant is convicted or pleads guilty to a lesser included or different offense than that originally charged, the "case" is not terminated at the trial level with a dismissal or acquittal. Furthermore, in that situation, the inequity to be cured by the 1986 amendment to section 99-m does not exist because the defendant has not been absolved of criminal liability. The matter is generally similar to the situation addressed by CPL, §160.50, pursuant to which photographs, palmprints and fingerprints may be returned to an accused upon termination of a criminal action or proceeding in favor of the accused. Under subdivision 2 of that section, a criminal action or proceeding against a person is deemed terminated in favor of such person only in situations where the accused is finally exonerated from all criminal liability. Accordingly, in our opinion, where a defendant is convicted or pleads guilty to a lesser included or different offense within the same criminal action than that originally charged, the 2% fee authorized by section 99-m of the General Municipal Law should not be refunded.

June 21, 1988
David A. Farrell, County Treasurer
County of Cayuga