Before Judges Keefe, Eichen and Coburn.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 1999
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
This appeal concerns the proper Disposition of a $50,000 cash deposit in lieu of bond posted as bail by defendant Bernard Recanati. Following an evidentiary hearing, the Law Division, Criminal Part ordered release of the funds to Recanati. Co-defendant Daniel Provenzano appeals, contending that he furnished the funds for defendant's bail and therefore he is entitled to return of the cash bail deposit. We hold that in the absence of an affidavit of ownership filed by Provenzano at the time cash bail was posted, as required by R. 3:26-4(f), he is not entitled to remission of the deposit even though it is essentially undisputed that he furnished the money for Recanati's bail. Accordingly, we affirm the order releasing the cash bail to Recanati.
Defendants Recanati and Provenzano were arrested on June 12, 1997. Provenzano was arrested on charges of second degree theft by extortion, N.J.S.A. 2C:20-5a; third degree terroristic threats, N.J.S.A. 2C:12-3b; and conspiring to commit these offenses, N.J.S.A. 2C:5-2. Recanati was arrested on charges of first degree kidnapping, N.J.S.A. 2C:13-1b(2); second degree aggravated assault, N.J.S.A. 2C:12-1b(1); and conspiring to commit these offenses, N.J.S.A. 2C:5-2. Defendants were arraigned and incarcerated in the Bergen County Jail that day. Bail was set at $500,000 and $50,000 for Provenzano and Recanati, respectively.
Provenzano arranged for two bank checks to be issued from the account he maintained at Fleet Bank to cover bail for Recanati and himself. To accomplish this, Provenzano borrowed a portion of the funds from a third party who transferred the needed funds into Provenzano's account. On June 13, 1997, an agent from the bank delivered two bank checks to the Bergen County Sheriff's Department, one in the sum of $50,018 for Recanati, and a second bank check in the sum of $500,018 for Provenzano. *fn1 At the time of delivery, the agent declined to sign a bail receipt for either of the checks. Provenzano was not present when the agent delivered the checks. Upon tender of the check representing Recanati's bail deposit, Recanati signed an affidavit of ownership and a recognizance that referenced the $50,000 bail deposit. *fn2 The affidavit of ownership states in pertinent part:
I, BERNARD RECANATI ..., being duly sworn upon my oath according to law, depose and say: I am the owner of FIFTY THOUSAND (50,000.00) CHECK #001245868 Dollars this day deposited in the above entitled case as cash money in lieu of bail and recognizance, and, subject to a forfeiture, claim such deposit by reason of such ownership. This affidavit is made pursuant to N.J.S.[A.] 2A:169-9 and Rule 2:9-5(g). *fn3
Following the posting of bail, both men were released from the county jail.
On November 19, 1997, Recanati moved to reduce his bail from $50,000 to $5,000. The application was granted on January 9, 1998. Shortly thereafter, Provenzano secured an order to show cause requiring Recanati to show why Provenzano should not receive the $45,000 that the Sheriff's Department was about to remit to Recanati. In support of the order to show cause, Provenzano submitted a certification setting forth his claim of ownership to the bail funds. An evidentiary hearing was held on February 19, 1998, the return date of the order to show cause.
At the hearing, Recanati did not dispute that the source of his bail deposit was Provenzano's bank account at Fleet Bank; his contention was that he repaid the monies to Provenzano sometime after the two were released from jail and therefore the bail money should be returned to him. Provenzano denied Recanati repaid the bail money and claimed that he was entitled to its return because he proved by sufficient competent evidence that he furnished the funds for Recanati's bail.
At the Conclusion of the hearing, Judge Gaeta held that, pursuant to R. 3:26-4, the $50,000 bail deposit should be released to Recanati because he had signed the affidavit of ownership when the funds were deposited. The Judge determined that although Provenzano may have furnished the money for Recanati's bail, he had not signed the required affidavit under the rule, R. 3:26-4(f). The Judge stated that "there had to be some type of agreement" between Recanati and Provenzano with respect to the $50,000. Although Judge Gaeta recognized that issues concerning the agreement between the parties and Recanati's alleged repayment were more amenable to resolution in a civil action by a jury, he nevertheless allowed the attorneys to present evidence on those issues. Thereafter, he made findings of fact and Conclusions of law regarding Recanati's claim that he had repaid the money to Provenzano. The Judge determined that the evidence presented by Recanati was credible and that Provenzano had failed to meet "his burden ... to establish by a preponderance [of the evidence] that he was not paid, that the money was his, that he's entitled to the money." On March 3, 1998, Judge Gaeta entered an order declaring that the "bail money, in the amount of $50,000, posted for Bernard Recanati ... belongs to Bernard Recanati," and stayed enforcement of the order pending this appeal.
On appeal, Provenzano raises the ...