[153 NJSuper Page 508] Pursuant to R. 3:26-6(b) and (c) the insurance companies acting as sureties on a number of recognizances for bail in criminal matters moved to set aside forfeitures and judgments on forfeitures of bail previously entered against both the defendant and the surety on each recognizance. Motions were made in 21 matters. In one the motion was granted; in the others it was denied. The surety companies have filed their notices of appeal from 14 of the 20 denials. In accordance with R. 2:5-1(b) the court now supplements the oral determination of the motions made on the record with the following findings and reasons. Because the facts are quite similar in each case and the principles of law identical, two of the matters are captioned as above; the remaining 12 are noted below.*fn1
In State v. Singletary defendant was indicted on September 10, 1973 and charged with unlawfully possessing a weapon in violation of N.J.S.A. 2A:151-8. Bail was set at $5,000. Defendant signed the recognizance. Peerless Insurance Company, through its authorized agent, signed as surety. Defendant was released pending trial. Thereafter he failed to appear for arraignment on October 12, 1973. The bail bond was declared forfeit. On notice to defendant and the surety company, the State moved for entry of judgment on the forfeiture. Judgment was entered against both on May 25, 1976 for $5,000. When called upon to pay the judgment the surety company did so. In the affidavit submitted in support of its motion the surety company, through its attorney, states the following:
Defendant was remanded and entered a plea of not guilty on January 6, 1975 and on March 21, 1975 the Prosecutor's motion to dismiss the motion [should read indictment] was granted. Judgment on the forfeited recognizance was entered on May 20, 1976. Defendant was remanded without the assistance of the bondsman as he [the bondsman] refused to cooperate with the bonding company in the performance of his duties, as a result of which he has been dismissed from the company.
The surety, then, did nothing to insure the return of defendant; defendant apparently showed up without any great expense on the part of the State. The surety feels it is entitled to the return of at least part of the judgment it paid; it cannot specify how much or advance a rational basis upon which such determination could be made.
In State v. Baldwin the defendant was indicted on April 19, 1977 on a charge of petit larceny. Bail in the amount of $750 had been posted previously by defendant and Midland Insurance Company as surety while the charge was pending in the local municipal court. Defendant failed to appear at his arraignment (of which the surety had received notice) on May 13, 1977. Bail was declared forfeit and a warrant for his arrest issued.
The affidavit in support of the motion to set aside the forfeiture recites the following:
2. The defendant's bail was forfeited on May 13, 1977. This office [the attorney for the bonding company] immediately commenced an investigation in order to locate the defendant.
3. Our investigation determined that the defendant had moved from his present address and his neighbors believed he had moved to California. We then received information that the defendant might have been apprehended. A call was placed to J. Forrar of the Bench Warrant section of the Monmouth County Prosecutor's Office. Mr. Forrar verified that he had, in fact, been apprehended during the week of June 13, 1977 and was being held in Warren, Ohio. The Monmouth County Bench Warrant was forwarded to Ohio to act as a detainer so that extradition proceedings could begin.
Much of the foregoing is conclusory (cf. R. 1:6-6). That which is not shows that the bonding company actually did nothing to secure defendant's return to New Jersey. Defendant waived extradition; was arraigned on June 24, 1977 and had new bail set at $2,500. Here, again, the bonding company seeks to set aside the forfeiture of $750 in whole or in part. It points to no basis for a rational apportionment. It gives no reason for the relief sought. Its position, simply stated, is this: the State of New Jersey got the defendant back without much effort, therefore, it is not fair to make the bonding company pay what it agreed to pay in undertaking the obligation.
On each of these applications the insurance company takes the position that the obligation rests on the State to come forward and demonstrate the dollar cost to recapture defendant and, to ...