Before Judges Stern and Kimmelman.
The opinion of the court was delivered by: Per Curiam.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
A bail bondsman, Lucky Seven Bail Bonds (Lucky Seven) and the surety, the underwriter of the bond, Ranger Insurance Company (Ranger) have lodged separate appeals from an order entered July 9, 1999, forfeiting to the State $50,000 from a $100,000 surety bond executed on April 22, 1999, by Lucky Seven and Ranger. Because the facts of each appeal are essentially the same, we treat the appeals together and issue this single opinion. We conclude that each appeal be reversed, remanded and we direct that there be a complete remission of the forfeiture.
Defendant was indicted along with ten co-defendants on January 27, 1999, for charges including burglary, theft, tampering with public records and uttering a forged instrument. Upon arraignment, defendant was released after posting a $50,000 surety bond. On April 19, 1999, several of the co-defendants pleaded guilty. After a co-defendant (Daniel Knoeller) indicated to the court that defendant had threatened him if he (the co-defendant) agreed to testify for the State against defendant, defendant's bail was revoked and a bench warrant was issued for his arrest. Defendant surrendered to the court on April 21, 1999, and on April 22, 1999, the court raised his bail to $100,000 and added a specific "no contact" provision to be included as part of the surety bond. The "no-contact" provision as prescribed by the court read as follows:
The bail on Anthony Korecky is hereby set at $100,000, surety bond only. The surety bond is to include the following conditions:
The defendant, Anthony Korecky, is to have no contact of any nature whatsoever, directly or indirectly through others, with any co-defendant in this case who has pled guilty and agreed to testify for the State. In the event of any such contact, this bail will be revoked and forfeited. This condition does not preclude counsel for the defendant or licensed investigators for counsel from any such contact in preparation for trial.
Any surety bond for this defendant is to be submitted for Court approval prior to the defendant's release.
In order to secure the release of defendant, the bail bondsman, as Ranger's Attorney-in-Fact agreed to issue and did execute a surety bond which contained the above "no contact" provision. However, the surety bond also contained a clause limiting the Attorney-in-Fact's authority to appearance bonds only, expressly excluding any other condition imposed by the court "not specifically related to court appearance." The power of attorney clause reads as follows:
KNOW ALL MEN BY THESE PRESENTS that The Ranger Insurance Company, a corporation duly organized and existing under the laws of the State of Delaware and by the authority of the resolution adopted by the Board of Directors at a meeting duly called and held on November 10, 1988, which said Resolution has not been amended or rescinded, does constitute and appoint and by these presents does make, constitute and appoint the named agent its true and lawful Attorney-in-Fact for it and in its name, place and stead, to execute, seal and deliver for and on its behalf and as its act and deed, as surety, a bail bond only. Authority of such Attorney-in-Fact is limited to appearance bonds and cannot be construed to guarantee defendant's future lawful conduct, adherence to travel limitation, fines, restitution, payments or penalties, or any other condition imposed by a court not specifically related to court appearance.
Although the form of the surety bond was brought to the attention of the court and the prosecutor, no mention or notation was made that the surety bond limited the authority of bail bondsman to execute appearance bonds only. It may be that such printed clause limiting the authority of the bondsman was later attached to the bond. In this opinion, we elect to pass over and not address the issue of the limited authority of the bail bondsman. Rather, we choose to deal with the merits of the $50,000 forfeiture.
The operative facts indicate that on May 11, 1999, another of defendant's co-defendants, Kirk Feinstein, pled guilty pursuant to a plea bargain agreement and as part of the plea, he agreed to testify for the State. On May 19, 1999, defendant was again indicted and charged with witness tampering stemming from the threats he had previously made to co-defendant Daniel Knoeller.
On May 23, 1999, while at Six Flags Great Adventure Amusement Park, defendant fortuitously met up with co-defendant Kirk Feinstein, and called him a "rat" and threatened physical harm if he, Feinstein, cooperated with the State. Feinstein promptly reported to the law authorities the threat made to him. Defendant was forthwith arrested, charged with witness ...