Reaffirming Authority for Judicial Scrutiny of Insurance Company Bail Bonds

John Smith, a hypothetical defendant, was arraigned before a New York State Supreme Court Justice on an indictment charging him with robbery in the first degree. After reviewing Smith’s lengthy criminal record, which included two prior violent felony convictions and a history of bench warrants, the court set bail in the amount of $50,000, which could be posted in the form of a bond, or $25,000, which could be posted in the form of cash.

The following day, Smith’s brother approached a bondsperson in order to facilitate Smith’s release through the posting of a $50,000 insurance company bail bond. The bondsperson required that Smith provide $5,000 cash as collateral for the bond. That money would be held by the bondsperson to ensure that Smith returned to court. If Smith returned to court, the bail bond would be exonerated at the conclusion of the case and the $5,000 would be returned to Smith. If Smith absconded and the bond was ordered forfeited, the bondsperson would keep the $5,000 and attempt to collect the remainder of the $45,000 from Smith or any other person who had agreed to be an obligor on the bond. The bondsperson would ultimately be responsible for paying the full $50,000. CPL §540.10(1). In either case, the bondsperson would keep an additional $3,260 which, in addition to the $5,000, would be paid by Smith.¹