Court of Appeals May-June Session: Arguments of Interest for June 1, 2017

This is it, the final day of argument before the Court of Appeals’ break for the summer.  There are only two cases on the argument docket today (the Court’s case summaries can be found here), which present the following issues: (1) whether a bail bondsman may retain a bail bond premium if the bond is rejected by the court and the defendant is never released from custody, and (2) whether the imposition of a mandatory minimum sentence against a criminal defendant as a persistent felony offender based on non-jury factual findings violates the rule of Apprendi v New Jersey (530 US 466 [2000]).

No. 79     Gevorkyan v Judelson

In this certified question case that the Court accepted back in December, the Second Circuit asks the Court of Appeals to decide whether under New York law, a bail bondsman may retain a premium paid to him by the criminal defendant where the state court rejects the bond offered and the defendant is never released from custody. In Gevorkyan, a criminal defendant obtained a bail bond in the amount of $2 million by paying the bondsman a premium of $120,560. The state court, however, upon review of the bond offered, declined to accept it because the defendant failed to establish that the premium paid for the bond was not the fruit of criminal conduct. The Appellate Division affirmed the denial of the bond, and the Court of Appeals denied leave to appeal. The criminal defendant was therefore never release from custody.

Afterwards Gevorkyan sought in federal court to recover the $120,560 premium she paid for the bond, because the bondsman was never exposed to the risk that the criminal defendant would not appear in court when required. The bondsman refused to return the premium, claiming that he had earned it upon presentation of the bond to the state court. Finding no controlling law, the District Court applied normal contractual principles and held that the parties did not intend for the bondsman to retain the premium if the bond was not accepted by the Court.

Finding a dearth of New York law on the issue on appeal, the Second Circuit certified the question to the Court of Appeals, which will now decide the case. The Second Circuit’s opinion certifying the question can be found here.

What’s interesting is that the Court of Appeals in this case has taken the incredibly rare step of granting oral argument to an amicus curiae, here, the New York Department of Financial Services.  The NYDFS amicus brief argues that neither party has correctly construed the New York Insurance Law provisions governing this situation, and that the DFS, as regulator of the bail bondsman industry, thus has a unique consumer protection interest in this case.


The Court has apparently agreed, and granted the NYDFS five minutes of the argument to set forth its interpretation of the laws. A copy of the NYDFS amicus brief can be found here.

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