On appeal from the Superior Court, Law Division, Union County.
Michels and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
Appellant International Fidelity Ins. Co. (International) appeals from an order of the Law Division remitting $50,000 of a previously forfeited $75,000 bail and permitting the County of Union to retain $25,000. We reverse.
In May 1981 defendant Mario Weissenburger was released pending trial on $75,000 bail. International, as surety, and Weissenburger, as principal, executed the bail bond, which, in usual form, conditioned the obligation upon Weissenburger's
undertaking not to leave the jurisdiction and to appear in court as required.
During the following months Weissenburger entered into negotiations with the Union County Prosecutor which resulted in an agreement between them reached in September 1981. By that agreement defendant undertook to cooperate with two of the prosecutor's investigators in order to assist them in obtaining evidence against suspected major distributors of controlled dangerous substances. He also agreed to testify against them. In return, the prosecutor agreed to provide protection for defendant and his girlfriend Laurette Cherry, and to relocate them and provide new identities for them if necessary. The prosecutor further agreed, following defendant's full cooperation, to move for the dismissal of all pending charges against him, including those to which he had already pleaded guilty. This agreement was reduced to writing by way of a detailed letter dated September 24, 1981, from defendant's attorney to the assistant prosecutor in charge of the matter. Both the assistant prosecutor and defendant signed the letter at its foot, signifying that "the terms herein are satisfactory." The specific terms set forth in the letter, which are critical to the issues here, are as follows:
If it appears necessary (at the discretion of the State), Mario Weissenburger will be permitted to relocate before the disposition of indictments resulting from his cooperation. Only under an emergent threat to his or Laurette Cherry's life can Weissenburger or Laurette Cherry relocate on their own. After relocating, he must make immediate contact with the State authorities. If the State authorities determine that the threat upon his or Laurette's life was not valid when he relocated, the State's agreement with him will be void.
Four days later, on September 28, 1981, the assistant prosecutor wrote to defendant's attorney requesting his consent to the following stated clarification of the agreement:
If Mario Weissenburger leaves this jurisdiction because of an emergent threat to his safety and if an investigation reveals that no such threat existed and Weissenburger's flight was to avoid compliance with this agreement and the imposition of sentence, it is understood that all obligations of the State cease and Weissenburger will be returned to this jurisdiction for the imposition of sentence.
Defendant's attorney replied by letter agreeing to this clarification. International was never advised of this agreement.
It appears that defendant did in fact thereafter cooperate with the investigators, making at least one substantial purchase from a distributor under police surveillance and instruction, which resulted in the distributor's arrest. Several days following that transaction and only a day or two before he was to appear in court for sentencing on the charges to which he had already pleaded, he fled the jurisdiction with Laurette Cherry. For the next several months, and until he was located by International and returned by it to New Jersey for sentencing, he remained in California. His whereabouts were not, during this period, ...