Opinion 91-33


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- County Treasurer's Fee (applicability of fee to interest earned on deposit of bail) -- Deposit and Investment of (duty of county treasurer to deposit bail in interest-bearing account); (maintenance by county treasurer of common bank account for separate bail deposits); (duty of superior court to deposit retained bail in interest-bearing account and pay interest to State Department of Taxation and Finance)
COUNTY TREASURER -- Bail Moneys (duty to deposit bail in interest-bearing account); (maintenance of common bank account for separate bail deposits); (applicability of 2% bail fee to interest earned on deposit of bail)
COURTS -- Bail Moneys (duty of superior court to deposit retained bail in interest-bearing account and pay interest to State Department of Taxation and Finance)

CRIMINAL PROCEDURE LAW, §520.15(1)(a); CIVIL PRACTICE LAW AND RULES, §2601; 2 NYCRR 70.10, 70.11(2): Cash bail received by a county treasurer pursuant to CPL, §520.15(1)(a) and moneys paid into court received by a county treasurer pursuant to CPLR §2601 must be deposited in interest-bearing accounts. Funds held for particular actions or proceedings may be pooled into a common bank account so long as separate book entry accounts are made for each action or proceeding.
STATE FINANCE LAW, §182: Cash bail physically paid into court, other than a town or village court, must be retained by the court and deposited in an interest-bearing account, and the interest must be paid monthly to the State Commissioner of Taxation and Finance to be used to finance the construction of court facilities.
GENERAL MUNICIPAL LAW, §99-m: The 2% fee recoverable by a county treasurer for handling cash bail does not apply to interest earned from the deposit of bail in an interest-bearing account.

This is in reply to your inquiry asking several questions regarding moneys which are received by the county treasurer after being paid into court. Specifically, you asked the following:

1. Must cash bail paid into court pursuant to Criminal Procedure Law ("CPL"), §520.15 and money paid in to court pursuant to Civil Practice Law and Rules ("CPLR"), §2601 be placed into an interest-bearing bank account when it is received by the county treasurer?

2. If a county treasurer maintains separate internal accounts for each depositor of cash bail and money paid into court, may the county treasurer establish a single bank account into which all moneys received from these depositors are placed or must separate bank accounts be opened for each depositor?

3. Is a county treasurer required to internally post interest to the accounts of each depositor of cash bail and money paid into court when it is earned or when it is paid out with the principal amounts?

4. Pursuant to CPL, §520.15, cash bail may be deposited with the county treasurer of the county in which the criminal action or proceeding is pending. If the county treasurer receives cash bail and deposits it into an interest-bearing account, is the treasurer required to pay the accumulated interest to the State Commissioner of Taxation and Finance pursuant to State Finance Law, §182 or to the depositor of such cash bail (or such other person as the court directs)?

5. Pursuant to General Municipal Law, §99-m, a county treasurer is entitled to a fee of two per centum of the amount of cash bail deposited upon exoneration or remission of the bail. If the county treasurer invests the cash bail in an interest-bearing account, is the county also entitled to the two per centum fee of the interest earned on the cash bail?

In those instances where moneys are paid to the county treasurer pursuant to CPL, §520.15(1)(a) relating to cash bail and pursuant to CPLR, §2601 relating to moneys paid into court generally, the county treasurer is required by the regulations of the Comptroller, adopted pursuant to section 8(11) of the State Finance Law, to deposit the funds into a depository designated by the State Comptroller (2 NYCRR 70.10). Such depositories are required to pay interest on such deposits at a rate satisfactory to the Comptroller and in no event less than the highest rate being paid by the depository on other accounts having similar maturities (2 NYCRR 70.11(2)).

The question of whether a county treasurer is required to open separate bank accounts for each depositor of moneys into court or may open a single account while maintaining a ledger with separate book entries for each depositor has been the subject of some uncertainty. Recently adopted regulations of this Office (2 NYCRR 70.7), however, now provide that while a county treasurer must make a separate book entry account for each action or proceeding, a separate account in a financial depository need not be maintained for each such action or proceeding. Funds held for particular actions or proceedings may be pooled into a common bank account, but the income earned on the common account must be prorated at least monthly as entries to the individual book entry accounts that comprise the common bank account.

In view of these regulations, it is our view that county treasurers may now pool funds held for particular actions or proceedings into a common bank account so long as separate book entry accounts are made for each action or proceeding. Furthermore, any interest earned by the common bank account must be prorated at least monthly as entries to the individual book entry accounts which together comprise the common bank account.

Section 182 of the State Finance Law was amended by chapter 825 of the Laws of 1987 by adding the following sentence:

All moneys paid into a court of the unified court system, other than a town or village court, pursuant to the provisions of title P of the criminal procedure law, which remain in the court's custody, shall, during such custody, be deposited in an interest-bearing account, and all interest thereupon received shall be paid to the state commissioner of taxation and finance on a monthly basis not later than ten days after the last day of each month.

This sentence, by its specific terms, applies only to moneys paid into court "which remain in the court's custody." This language, which was drafted by the Office of Court Administration (OCA), has been interpreted by OCA as applying only to moneys which are retained in the physical custody of the courts. Its apparent purpose was to require, for the first time, that bail deposited with the courts be invested by the courts, and that the interest earned thereon be utilized to finance the construction of court facilities pursuant to chapter 825 of the Laws of 1987. Prior to the 1987 amendment to section 182 of the State Finance Law, if cash bail was physically received by the court, the officer receiving the court moneys was required to "deliver them to the county treasurer within two days after he" received them (CPLR §2601[b]). Now, the requirement to deliver moneys to a county treasurer exists, in our opinion, only with respect to moneys which are other than cash bail physically received by a court.

If the provisions of State Finance Law, §182, as amended, were not construed as an exception to the provisions of CPLR, §2601, the courts would have physical custody of cash bail for only two days before being required to turn the money over to the appropriate county treasurer. Such a short period of deposit in an interest-bearing account would result in negligible interest, if any, and would be of virtually no help to fund the newly established Court Facilities Incentive Aid Fund. Clearly, such a result would be absurd. A construction which would make a statute absurd will be rejected (Freeman v Kiamesha Concord, Inc., 1974, 76 Misc2d 915, 351 NYS2d 541).

Since bail deposited with a county treasurer is not money paid into court which remains in the physical custody of the court, it would not appear to be subject to the amended provisions of State Finance Law, §182, quoted above. Therefore, any interest earned on cash bail which has been deposited with and retained in the custody of the county treasurer is not required to be paid to the State Commissioner of Taxation and Finance pursuant to that statute. Rather, section 520.15(3) of the CPL provides that "moneys posted as cash bail is and shall remain the property of the person posting it unless forfeited to the court." Accordingly, it is our opinion that, consistent with the traditional property doctrine that interest follows principal, any interest earned on such moneys by the county treasurer would be paid to the person posting the bail.

With respect to the fee that a county treasurer is entitled to upon the exoneration or remission of bail, General Municipal Law, §99-m provides:

When, pursuant to the provisions of title P of the criminal procedure law or the provisions of the family court act, 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.

Under the express language of this provision, the county treasurer is entitled to a fee of two per centum of the amount of cash bail or partially secured bail bond so deposited. Therefore, construing this language according to its most natural and obvious sense (McKinney's Cons Laws of NY, Book 1, Statutes, §92), the two per cent fee should be calculated solely on the principal amount of cash bail originally deposited without regard to any interest earned on such amount.

In reaching the above conclusion, we are aware that Section 8010 of the CPLR provides that a county treasurer is entitled to a fee of two per cent upon a sum of money paid out of court by him, which would include both principal and interest, and that, therefore, section 8010 is inconsistent with General Municipal Law, §99-m. It is a rule of statutory construction, however, that where there are two statutes in conflict, one of which is of general import and the other of specific import, the latter will govern (Ten Hoeve v Board of Education of Dundee Central School Dist, 97 AD2d 678, 469 NYS2d 174, revd on other grounds 64 NY2d 1036, 489 NYS2d 59; Lo Bello v McLaughlin, 39 AD2d 404, 334 NYS2d 692, affd 33 NY2d 755, 350 NYS2d 406). Therefore, since section 99-m is a specific statute dealing only with cash bail or money deposited in connection with a partially secured bail bond while section 8010 is a general statute dealing with any moneys paid out of court, we conclude that section 99-m would govern in any case involving cash bail. Accordingly, the two percent fee taken by the county treasurer should be based only on the principal amount of the cash bail or money deposited in connection with the partially secured bail bond originally deposited with the court.

September 4, 1991
Howard A. Stark, Esq., Deputy County Attorney
Monroe County

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*(Please note that this opinion was written prior to the enactment of L 1991, ch 166, §383, effective June 12, 1991, which amended General Municipal Law, §99-m by imposing an additional 1% fee on cash bail deposited with a court to be used to fund an approved county alternatives to incarceration service plan. This amendment does not alter the conclusions reached in this opinion.)