On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication August 1, 1995.
Before Judges Skillman, Wallace and Kleiner. The Opinion of the court was delivered by Wallace, J.A.D.
The opinion of the court was delivered by: Wallace
The Opinion of the court was delivered by
This appeal concerns the proper Disposition of bail money following the sentence of the defendant. *fn1 As part of the sentence imposed, the trial court ordered that the bail money posted by a third party be applied towards the restitution that defendant was ordered to pay. We hold that bail posted by a third party for a defendant must be returned to the third party or applied in accordance with the assignment given by the third party.
The pertinent facts are brief. In August or September 1991, defendant was arrested and later extradited to New Jersey from Florida for wilful non-support charges in Monmouth County. The trial court set bail at $25,000. John Giordano Sr., defendant's father, lived in Florida. He withdrew $25,000 from his money market account and forwarded this amount to Kenneth F. Notaro, a family friend. Notaro, in turn, posted the bail money for defendant on September 9, 1991. The bail agreement with Notaro provided in part:
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 Surety comply with these Conditions, then this Recognizance is to be void. Giordano, who would receive the amount ordered for restitution, is the respondent. The State did not participate in this appeal.
Defendant was represented by Donald M. Lomurro, of Lomurro, Davison, Eastman & Munoz (firm). On September 16, 1991, Giordano Sr. co-signed a retainer with the firm.
On March 12, 1992, an attorney from the firm wrote to Nancy Giordano's attorney proposing a settlement in which defendant would pay Nancy a total of $55,000 in final settlement of a pending Family Part matter conditioned upon defendant being admitted to the Pre-trial Intervention Program in connection with the criminal matter. Giordano Sr. had agreed to provide $20,000 for the settlement, which he had obtained by acquiring a bank loan, and another $20,000 would have been paid from the bail, which would have accounted for $40,000 of the settlement proceeds. The letter also suggested that the parties work out a payment schedule for the remaining $15,000 and noted that defendant and his counsel were "presently arranging for an assignment of the bail to our trust account so that in the event Mr. Giordano, Jr., is released on his own recognizance, the funds may be released directly to our trust account so that we may pay your client."
Lomurro certified on March 3, 1995, *fn2 that in March 1992, his firm offered Nancy $20,000 "raised by family members" and placed in the firm's trust account, and $20,000 of the bail money which Lomurro would assign to her in order to resolve the criminal matter and to settle an action pending in the Family Part. Lomurro said that Nancy rejected the offer. At that time defendant's legal bills were less than $5,000, but subsequently defendant incurred additional legal bills in excess of $130,000.
Giordano Sr. certified on February 27, 1995, that the firm limited his financial obligation for defendant's legal fees to the $25,000 bail which he previously assigned to the firm. Giordano Sr. further certified that "Notaro also assigned the bail to Mr. Lomurro so that there was no confusion in the clerk's office..." regarding ownership of the money as between Giordano Sr. and Notaro. *fn3 Giordano Sr. further certified that he would not have guaranteed the payment of defendant's legal fees if he knew the court might apply the bail to restitution.
As part of defendant's sentence, the trial Judge ordered that the $25,000 bail be paid to the Probation Department to be applied to the $153,664.38 defendant owed to Nancy. We granted a stay of this order pending appeal and expedited this appeal. The Supreme Court denied Nancy's motion to vacate the stay.
While the parties have cited no New Jersey case law addressing the application of bail posted by a third party, other jurisdictions have reached this issue. For example, in State v. Cetnarowski, 166 Wis. 2d 700, 480 N.W.2d 790, 793-95 (Wis. Ct. App. 1992), the appellate court held that the trial court erred in applying bail posted by defendant's grandmother to satisfy defendant's restitution obligation when the only statutory authority for the reduction of the amount of refundable ...