Scalera, J.s.c., Temporarily Assigned.
This is a civil action arising on motion of the surety on a recognizance of bail to vacate a forfeiture of the bail posted in the captioned criminal matter and to order an exoneration of the surety. R. 3:26-7; 1:13-3(b). Cf. State v. Peace , 63 N.J. 127 (1973).
The facts are not in dispute. Lumas Rice was arrested and charged with violation of the Controlled Dangerous Substance Act, N.J.S.A. 24:21-20, on December 3, 1971. Pursuant to R. 3:26-4(a) Rice was admitted to bail in the amount of $500 upon a recognizance with Rice as principal and movant International Fidelity Insurance Company as surety. On June 12, 1972 an indictment was returned against Rice and after entry of a plea of "not guilty" the bail previously posted was continued.
The matter was assigned to the trial list and eventually, on March 14, 1973, the trial judge suspended further proceedings and placed Rice under "supervisory treatment" of the county probation department for a term "not to exceed three years" pursuant to N.J.S.A. 24:21-27(a).
On December 6, 1973 the judge issued a bench warrant for Rice for a "violation of probation" (the precise reasons for which are not discernable from the records). On February 26, 1975 the probation department notified the judge that Rice had absconded and had violated the terms and conditions of supervisory treatment, requesting that the judge terminate supervisory treatment. An order to that effect was entered and the suspended proceedings were resumed pursuant to N.J.S.A. 24:21-27(b). Bail was ordered forfeited when Rice failed to appear for the trial. R. 3:26-6(a). Rice has not yet been apprehended.
The surety now seeks to have this court set aside the forfeiture, contending that the conditions of the recognizance were satisfied at the time Rice was granted supervisory treatment
by the court (popularly known as "first offender" treatment) under the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq. , specifically, N.J.S.A. 24:21-27, thus entitling it to a discharge or an exoneration.
The County of Essex opposes the surety's application, asserting that the failure of Rice to appear for trial as required by the judge after violation of the order of supervisory treatment constitutes a breach of the conditions of the surety's recognizance. R. 3:26.6(a).
Bail proceedings in this State are regulated primarily by the New Jersey Rules of Court. R. 3:26-4(a) requires that "[a] person admitted to bail shall, together with his sureties, sign and execute a recognizance * * *. The recognizance * * * shall be conditioned upon his appearance at all stages of the proceedings until final determination of the matter , unless otherwise ordered by the court. * * *" (Emphasis supplied). Paragraph (e) of R. 3:26-4 suggests that "any recognizance shall be discharged by court order upon proof of compliance with the conditions thereof or by reason of the judgment in any matter." Finally, R. 3:26-7 provides for exoneration of obligors and a release of bail "where the condition of the recognizance has been satisfied," or "by a timely surrender of the defendant into custody."
The recognizance herein specifically provided that Lumas Rice, as principal, and International Fidelity Insurance Company, as surety, did
Whereas , the principal has been bound over to await final determination of the cause * * * The Condition of This Recognizance is such that if the said principal shall appear at all stages of the proceedings until final determination of the cause, unless otherwise ordered by the Court, then this recognizance to be void, otherwise to remain in full force and virtue.
The surety contends that the order suspending the criminal proceedings and placing Rice on ...