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State v. Mercado

March 24, 2000

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL MERCADO, DEFENDANT, AND ALLEGHENY MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ISMAEL GARCIA, DEFENDANT, AND ALLEGHENY MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN TORRES, DEFENDANT, AND ALLEGHENY MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLANT.



Before Judges Skillman, D'Annunzio and Newman.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2000

On appeal from Superior Court of New Jersey, Law Division, Camden County.

The opinion of the court was delivered by

Allegheny Mutual Insurance Company (Allegheny), a commercial bail bond company, appeals from judgments in favor of Camden County and the State ordering the forfeiture of ninety percent of the recognizance bonds posted by Allegheny in three separate criminal cases. Because the facts of the three cases are similar and the appeals present essentially the same issue, we consolidate the appeals and issue a single opinion.

Allegheny posted $10,000 bail for defendant John Torres on March 18, 1998. Torres failed to appear in court on April 24, 1998. As a result, the clerk of the court sent a notice to Allegheny on May 13, 1998 that bail had been forfeited and a warrant issued for Torres' arrest, and that Allegheny had twenty days within which to initiate proceedings to set aside the forfeiture. Allegheny did not respond to this notice. Torres was arrested by officers of a local police department and returned to the Camden County jail on August 26, 1998. It is undisputed that Allegheny did not play any part in Torres' arrest.

Allegheny posted $5,000 bail for defendant Daniel D. Mercado on October 30, 1997. Mercado failed to appear in court on March 30, 1998. As a result, the clerk of the court sent a notice to Allegheny on April 23, 1998 that bail had been forfeited and a warrant issued for Mercado's arrest, and that Allegheny had twenty days within which to initiate proceedings to set aside the forfeiture. Allegheny did not respond to this notice. On October 20, 1998, Allegheny found out that Mercado was incarcerated in the Camden County jail. The record does not indicate the circumstances or the date of Mercado's return to custody. However, it is undisputed that Allegheny did not play any part in apprehending Mercado.

Allegheny posted $20,000 bail for defendant Ismael Garcia on December 24, 1997. Garcia failed to appear in court on April 6, 1998. As a result, the clerk of the court sent a notice to Allegheny on May 4, 1998, that bail had been forfeited and a warrant issued for Garcia's arrest, and that Allegheny had twenty days within which to initiate proceedings to set aside the forfeiture. Allegheny did not respond to this notice. Allegheny was informed in October of 1998 that Garcia had been arrested by law enforcement officers and returned to the Camden County jail. It is undisputed that Allegheny did not play any part in Garcia's arrest.

In each of the three cases, Camden County filed a motion for a judgment of forfeiture against the defendants and Allegheny. Allegheny responded by filing cross-motions to vacate the forfeiture and exonerate Allegheny from its obligations under the bonds. After oral argument, the trial court entered judgments against Allegheny for ninety percent of the amount of the bonds, relieving Allegheny of liability for the remaining ten percent. In denying Allegheny any additional relief, the court emphasized that Allegheny failed to show that it made any substantial efforts to locate and apprehend the defendants after they became fugitives, and that a substantial period elapsed before the defendants were returned to custody.

Allegheny has appealed from the judgments. Camden County has not cross-appealed from those parts of the judgments which provide for remission to Allegheny of ten percent of the bonds.

Bail is governed by Rule 3:26, which requires "[a] person admitted to bail . . ., together with that person's sureties, [to] sign and execute a recognizance [which] shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter." R. 3:26-4(a). "[S]uch a recognizance of bail is an obligation of record entered into before a person authorized to take bail, conditioned upon the appearance of the accused at all stages of the proceedings until final determination of the matter." State v. Rice, 137 N.J. Super. 593, 598 (Law Div. 1975), aff'd o.b., 148 N.J. Super. 145 (App. Div. 1977). A surety may be exonerated of its obligations under the recognizance "by a timely surrender of defendant into custody." R. 3:26-7.

Bail forfeiture is governed by Rule 3:26-6, which provides that upon breach of a condition of a recognizance, the bail bond shall be forfeited, R. 3:26-6(a), but that the court may direct the forfeiture to be set aside if its enforcement is not required in the interest of justice. R. 3:26-6(b). If the forfeiture is not set aside, the court also may remit the bail in whole or in part in the interest of justice. R. 3:26-6(c).

A party seeking to set aside or remit a forfeiture bears the burden of proving that "it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986). The determination whether to relieve an obligor of a forfeiture is ...


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