Opinion 93-22


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 of (when erroneously reported to justice court fund)

STATE COMPTROLLER -- Justice Court Fund (procedure to refund bail moneys erroneously reported)

CRIMINAL PROCEDURE LAW, §540.30; GENERAL MUNICIPAL LAW, §99-m: An order of a superior court to remit a forfeiture of bail is not required in order for the Justice Court Fund to refund moneys erroneously reported by a town or village justice as a bail forfeiture due to a clerical error when the defendant, in fact, did not miss a court date.


You state that a village justice in his monthly report to the Justice Court Fund reported bail forfeiture in the amount of $200 for a particular defendant. The justice, by letter, subsequently advised the Justice Court Fund that this reported forfeiture was in error because the "defendant ... did not miss a Court date." He attributed the error to "a computer and/or clerical oversight of some sort." In accord with past practice, the Justice Court Fund then advised the justice that an order of a superior court would be required by section 540.30 of the Criminal Procedure Law [CPL] before they could process the claim. You have asked for our opinion in this matter.

If this were a true case of remission of bail forfeiture within the meaning of CPL, §540.30, an order of a superior court would be necessary (§540.30[1][b]). However, "[a]n application for remission is addressed to the discretion of the court ..." (People v Wirtschafter, 305 NY 515, 519 [1953]), and is premised upon the defendant's failure to appear at the court-appointed time. Thus, CPL, §540.10(1) declares that "[i]f, without sufficient excuse, a principal does not appear when required ..., the court must enter such facts upon its minutes and the bail bond or the cash bail, as the case may be, is thereupon forfeited" (emphasis added).

The courts have recognized a distinction, however, in those instances where the imposition of bail or a purported forfeiture thereof is void. Thus, in the case of People v Wirtschafter, supra, the Court of Appeals stressed the difference between an application for remission and the invocation of "the inherent power, possessed by a court, to declare null and void an act performed by it which was done without authority of law and which it was beyond its power to do" (id.). In the latter case, the requirements of CPL, §540.30 do not apply.

Thus, for example, a court has no authority to order a forfeiture of bail when the defendant has appeared at the court-appointed time (cf., CPL, §540.10[1]), and a court which issued such an order may, as upon a writ of error coram nobis, correct its error without resort to the order of a superior court. As one court has stated, in the case of a claim of illegality of the forfeiture of bail, "[b]ail remission applications are not the proper form for those claims, since bail remission is addressed to the discretion of the court and not to matters of law." (People v Castro, 119 Misc 2d 787, 789, 464 NYS2d 650, 653 [Sup Ct., Kings County, 1983]).

Accordingly, based upon the statements made by the justice in his letter, it is our opinion that CPL, §540.30 has no application to the purported "forfeiture" of bail, and that the Justice Court Fund should refund the bail as requested by the justice. We should treat this as an act by the court, through its inherent power to correct its "null and void" action in declaring this bail forfeited. Accordingly, a superior court order is not required under these circumstances.

March 22, 1993
Melvin I. Rosenblat, Director
New York State Justice Court Fund