Opinion 88-39


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

BAIL MONEYS -- Disposition (cash bail on felony complaint held by town court and forfeited while town court retains jurisdiction)

CRIMINAL PROCEDURE LAW, §§180.70, 540.10, 540.20; STATE FINANCE LAW, §99-a; TOWN LAW, §27(1); UNIFORM JUSTICE COURT ACT, §2021(1): Cash bail which is posted in a town justice court in connection with a felony complaint, is held by the town court, and is forfeited while the criminal action is still pending in the town court, is the property of the town.

You ask whether a county, a town in the county, or a village located within the town is entitled to receive distribution of cash bail forfeited in a town court in connection with a felony complaint alleging that a felony was committed in the village. You state that the bail was forfeited by order of the town justice when the defendant failed either to appear as directed to schedule a preliminary hearing or to advise that the hearing was waived.

A town court is a justice court (Uniform Justice Court Act, §§102, 103; Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York, Book 29A, Part 2, Uniform Justice Court Act, §§102, 103, pp 170, 171). As such, it possesses jurisdiction of criminal matters as prescribed by the Criminal Procedure Law (Uniform Justice Court Act, §2001).

The Criminal Procedure Law (CPL) further designates a town court as a "Local Criminal Court" (CPL, §10.10[3]). As a local criminal court, a town court has trial jurisdiction of all offenses other than felonies and preliminary jurisdiction of all offenses, including felonies, subject to divestiture by the superior courts and their grand juries (CPL, §10.30; People v Hickey, 40 NY2d 761, 390 NYS2d 42, 358 NE2d 868). The preliminary jurisdiction of a town court is independent of its trial jurisdiction (CPL, §1.20[24], [25]; People v Hickey, supra) and exists when a criminal action for an offense may be commenced in the court, and when the court may conduct proceedings with respect to the action which lead or may lead to prosecution and final disposition in a court having trial jurisdiction (CPL, §1.20[25]). A criminal action to prosecute a felony offense is commenced in a town court by the filing of a felony complaint, a form of an accusatory instrument (People v Samuels, 49 NY2d, 218, 424 NYS2d 892, 400 NE 1344; People v Ferro, 77 Misc 2d 226, 353 NYS2d 854; CPL, §1.20[1], [8], [17]). After a felony action is commenced, the town court may conduct proceedings with respect to the action, including arraignment (CPL, §180.10), the conduct of a hearing upon the felony complaint (CPL, §180.60), and all other proceedings set forth in CPL, Article 180 (CPL, §180.10, et seq.).

A felony action commenced in a town court remains pending under the preliminary jurisdiction of that court until the action is either terminated by dismissal or other disposition (see CPL, §§180.10[5], 180.50, 180.70, 180.75), or the court is divested of its jurisdiction by action of a superior court or its grand jury (CPL, §10.30). If the preliminary hearing is waived, the action is deemed to be still pending in the town court until the felony complaint, the supporting depositions and all other pertinent documents are transmitted to and received by the superior court (CPL, §180.30). Similarly, if the hearing is held and determined adversely to the defendant, the action is deemed to be pending in the town court until the superior court receives the above described papers (CPL, §180.70).

In the instant matter, the criminal action was commenced and the town court acquired preliminary jurisdiction upon the filing of the felony complaint. Bail was fixed (CPL, §§180.10[6], 530.20), posted by the defendant and held by the town justice. Since the preliminary hearing was neither held nor waived, the action was pending in the town court at the time bail was forfeited (CPL, §§180.30, 180.70), and the forfeited bail was reported and remitted to the Justice Court Fund of the Office of the State Comptroller for distribution pursuant to State Finance Law, §99-a.

Unless otherwise provided by law, fines, penalties, forfeitures and other moneys received by a town justice belong to the town (Town Law, §27(1); Uniform Justice Court Act, §2021[1]; 1981 Opns St Comp No. 81-424, p 475). In this regard, we note that there does not appear to be any other statute which specifically directs the distribution of bail forfeited under the circumstances described in your inquiry. As is explained below, although sections 540.10 and 540.20 of the CPL apply to the disposition of bail, it is our opinion that these statutes have no application to the instant situation.

Section 540.10 pertains to the forfeiture of bail generally and sets forth a procedure whereby forfeited cash bail is ultimately deposited to the use of the county. With respect to such bail, however, this section only concerns bail deposited with the county treasurer and makes no provision with respect to the disposition of cash bail held by a local criminal court at the time of forfeiture, as it was held in the instant situation (see section 540.10[2]).

Section 540.20 more particularly pertains to bail forfeited in certain local criminal courts, including town courts. Subdivision 2 of this section directs that cash bail forfeited in a town court "is the property of the town or village where the offense charged is alleged to have been committed". Section 540.20, however, by its terms, is not applicable to bail posted in connection with a felony complaint, as in the instant situation. In pertinent part, the section reads:

"Notwithstanding the provisions of section 540.10, when bail has been posted in a city court, town court or village court in connection with a local criminal court accusatory instrument, other than a felony complaint, and thereafter such bail is forfeited, the following rules are applicable:" (Emphasis added)

Accordingly, since the cash bail under consideration was posted in connection with a felony complaint, the directive of section 540.20 that the forfeited bail is the property of the village in which the offense charged is alleged to have been committed does not apply.

Therefore, since no statute requires that the forfeited bail be paid to an entity other than the town, it is our opinion that cash bail, posted in connection with a felony complaint, held by a town justice and forfeited while the criminal action is pending in the town court, is the property of the town. Moreover, it is also our opinion that such forfeited bail is town property notwithstanding the fact that the felony charged is alleged to have been committed in a village located within the town.

August 15, 1988
Vincent J. Rossi, Jr., Esq., Town Attorney
Town of Vernon