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State v. Korecky

August 06, 2001

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT
v.
ANTHONY KORECKY, DEFENDANT



The opinion of the court was delivered by: Zazzali, J.

Argued March 12, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported at 333 N.J. Super. 78 (2000).

The issue in this case of first impression is whether the Appellate Division properly set aside a forfeiture of a bail bond because it was "not required in the interest of justice." R. 3:26-6(b). The trial court, finding that defendant Anthony Korecky violated a "no contact" condition imposed by the court as part of his release, revoked Korecky's bail and ordered partial forfeiture of the bail bond in the amount of $50,000. Respondents, corporate surety Ranger Insurance Company and its agent, Lucky 7 Bail Bonds, appealed the forfeiture and the Appellate Division reversed. State v. Korecky, 333 N.J. Super. 78, 85 (2000). The State appealed and we granted certification. 165 N.J. 606 (2000). We now reverse the Appellate Division and reinstate the trial court's order of forfeiture, but reduce the amount forfeited from $50,000 to $25,000.

I.

In January 1999, Korecky and ten co-defendants were indicted by an Ocean County grand jury on twenty-three separate counts. The indictment charged Korecky with the second-degree crime of being a leader of organized crime, thirteen counts of burglary, one count of attempted burglary, six counts of theft, one count of tampering with public records, and one count of uttering a forged document. Following the indictment, he was arrested and then released after posting a $50,000 surety bond.

In April 1999, five of Korecky's co-defendants appeared to enter their pleas. Although Korecky was not scheduled for a court appearance on that day, he was observed in the hallway outside the courtroom by the assistant prosecutor. The assistant prosecutor reported to the trial court that he observed Korecky approach various co-defendants and attempt to intimidate them. That same day co-defendant Daniel Knoeller testified that Korecky had contacted him one week earlier and threatened his physical well-being if Knoeller decided to testify for the State. The trial court revoked Korecky's bail and issued a warrant for his arrest.

Two days later Korecky surrendered to the authorities. The following day, April 22, 1999, Korecky appeared before the trial court for a bail hearing. The court increased his bail to $100,000 and "ordered that any surety agreeing to post the bond on his behalf, also agree to additional specific conditions that would be added to the bond and be made a part thereof." The trial court imposed a condition on defendant that ordered him "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." At that hearing, Lucky 7 Bail Bonds (Lucky 7) appeared before the court and submitted a recognizance bond in the amount of $100,000. The recognizance included a power of attorney by underwriter Ranger Insurance Company authorizing an agent or attorney-in-fact of the bonding company to post the bond with the court. The power of attorney, which was stapled to the recognizance bond, stated in relevant part:

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 limitations, fines, restitution, payments or penalties, or any other condition imposed by a court, not specifically related to court appearance.

Ranger Insurance Company contends that neither the Prosecutor's Office nor the trial court "at any time ever contacted Ranger Insurance Company to determine whether Ranger would agree to underwrite the bail bond to include the terms of the [c]court's ?no contact' amendment." Only Lucky 7 appeared before the court and was represented by its agent, bail bondsman Mario Pinto. The following exchange took place between Pinto and the court:

THE COURT: Have you received a copy of the additional condition that's part of the bail?

MR. PINTO: Yes, sir.

THE COURT: Do you understand it's going to be attached to your bail bond and surety obligation here?

MR. PINTO: Yes, sir.

THE COURT: Do you understand, then, that you're not only guaranteeing his presence for future court matters with regard to this, but also guaranteeing that or agreeing that if Anthony Korecky has any contact of any nature whatsoever directly or indirectly through others with any co-defendant in the case who has pled guilty and agreed to testify for the State, that his bail will be revoked and your bail bond will be forfeited? Do you understand that clearly?

MR. PINTO: Yes.

THE COURT: So if there's any contact whatsoever, the hundred thousand dollars you're posting is going to be forfeited?

MR. PINTO: Right.

THE COURT: And your company agrees to that?

MR. PINTO: Yes, sir.

The court asked Pinto to sign a copy of the conditions before handing it back to the court. Then the court inquired a second time if Pinto was representing to the court that he was authorized to bind "the company" with regard to the bond and the attached "no contact" condition: "And you're representing to the [c]court that you're authorized to bind the company with regard to this?" Pinto responded affirmatively and after he signed the page containing the no-contact condition, the court had it stapled it to the bond and authorized it to be filed.The "no contact" condition attached to the bond states:

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. [Emphasis added.]

In May 1999, a co-defendant, Kirk Feinstein, entered into a plea agreement in which he agreed to testify against defendant. The Ocean County Prosecutor's Office told Feinstein that Korecky would be arrested if he contacted Feinstein. If any contact took place, Feinstein was instructed to contact the Lacey Township Police Department. Several days later, Feinstein encountered Korecky at the Six Flags Great Adventure Theme Park. According to Feinstein, Korecky noticed Feinstein standing near a rest room with one of his friends. Korecky approached Feinstein and told Feinstein that he looked different. Korecky then said, "Hey, Kirk, you rat. Why are you testifying against me?" Feinstein responded that he was only going to tell the truth about what took place and that Korecky should not be speaking with him. Feinstein characterized Korecky as "upset" and "mad." Feinstein felt threatened by Korecky who stood with his arms down and fists ...


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