On appeal from the Superior Court, Law Division, Burlington County.
Pressler, Brody and Havey. The opinion of the court was delivered by Pressler, P.J.A.D.
Appellant Midland Insurance Company (Midland) appeals from an order of the Superior Court, Law Division, denying its motion to vacate a bail forfeiture. The issue raised by this appeal is whether the obligation which the surety undertakes when it executes a bail bond continues after defendant is sentenced even though it has not been notified of or consented to the trial judge's "continuation" of bail pending appeal.
Defendant Jose A. Santiago Vendrell was arrested after his car was stopped on the New Jersey Turnpike because of his erratic driving. A search of the vehicle revealed 78 pounds of marijuana in the trunk. He was charged with unlawful possession and unlawful possession with intent to distribute. Pretrial
bail was fixed in the amount of $5,000. Midland, as surety, and defendant, as principal, executed a bail bond in that amount conditioned, as required by R. 3:26-4(a), on defendant's appearance "at all stages of the proceedings until final determination of the matter."
Defendant ultimately entered a negotiated plea of guilty to the intent to distribute charge, reserving his right pursuant to R. 3:5-7(d) to appeal the denial of his motion to suppress the evidence seized from his car on the Turnpike. The State's undertaking was to move for dismissal of the possession charge. The plea was accepted, and defendant was sentenced to probation for two years on condition that he serve four months in the county jail.
It appears that at the sentencing proceeding the trial judge admitted defendant to post-conviction bail pursuant to R. 2:9-4 by "continuing" bail. Defendant was not therefore remanded to custody. Midland was not notified of the "continued" bail and obviously therefore did not consent to it. Defendant pursued his appeal to this court, which affirmed the conviction, and his ensuing petition for certification to the Supreme Court was denied. Several days thereafter, defendant was noticed to surrender to begin serving his sentence. A copy of the notice was sent to Midland. Defendant did not appear as required and is apparently still at large. The bail was thereafter forfeited, and Midland moved for vacation of the forfeiture claiming that its undertaking was complete at the time defendant appeared for sentencing since it neither knew of nor consented to any further obligation.
The question of whether, as a matter of law, a surety's obligation on a pretrial bail bond continues after sentencing and pending appeal has not been decided in this jurisdiction. It was raised but not answered in State v. Rice, 137 N.J. Super. 593, 603 (Law Div.1975), aff'd o.b. 148 N.J. Super. 145
(App.Div.1977), where the court noted that "* * * the question of whether a new cognizance is required pending appeal of a final judgment of conviction and sentence is not here considered." We are required to consider that issue now.
The starting point in determining the scope and duration of a bail bond must be the recognition that the bond constitutes a surety agreement governed by the same legal principles applicable to the construction and consequences of surety agreements in general. The nature of the surety's undertaking must therefore be determined in accordance with the terms of his agreement subject only to applicable provisions of law. See State v. Weissenburger, 189 N.J. Super. 172 (App.Div.1983). The requirements of law are prescribed by R. 3:26-4(a) which demands that the recognizance "be conditioned upon [defendant's] appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." The recognizance here executed by Midland contained conforming language, stating that
The Conditions of this Recognizance are that the Defendant shall personally be and appear at all stages of the proceedings and until the final determination of the cause and that the Defendant and Surety agree to immediately notify the Court of change of address, and if the Defendant and ...