On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 01-02-00454-I; 00-02-00479-I; 00-10-03240-I; 01-01-0322-I; 99-06-01908-I.
Before Judges Pressler, Ciancia and Hoens.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In these appeals, which we consolidate for the purposes of this opinion, appellant Lexington National Insurance Company is a corporate surety that posted bail in Camden County for each of the five named defendants. It asserts that the trial court erred in its application of principles governing remission of forfeited bail both initially and following remands from this court. We agree and for reasons we expressed in State v. de la Hoya, 359 N.J. Super. 194 (App. Div. 2003), we exercise our original jurisdiction to resolve the appropriate remission amounts. R. 2:10-5.
In general, we recognize that the decision to remit bail and the amount of remission are matters within the sound discretion of the trial court to be exercised in the public interest. See, e.g., State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, supra, 359 N.J. Super. at 198. The exercise of that discretion must, however, be informed by the standards articulated by the courts in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and again in State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000). Moreover, the exercise of that discretion must also be consistent with the policy concerns we identified in de la Hoya, supra, 359 N.J. Super. at 199, namely, the need to provide a reasonable incentive to the surety to attempt the recapture of the non-appearing defendant and to assure that the onus placed on commercial sureties is not so great as to risk the impairment of a defendant's realistic right to post pretrial bail. We also add that the focus of the bail forfeiture procedure is the vindication of the public interest and not primarily revenue raising.
With respect to the specific policy factors to be weighed, the primary consideration, as we held in State v. Mercado, supra, 329 N.J. Super. at 271, is whether the surety has made reasonable efforts under the circumstances to effect the recapture of the fugitive defendant. We also regard as particularly significant the surety's supervision of the defendant while he is released on bail. The other Hyers factors include the corporate status of the surety, the length of time during which defendant is a fugitive, the prejudice to the State and the expenses incurred by it as a result of the fugitive's non-appearance, recapture, and enforcement of the forfeiture, and whether reimbursement of the State's expenses will adequately satisfy the interests of justice. State v. Hyers, supra, 122 N.J. Super. at 180. The detriment to the State also includes, as our Supreme Court held in State v. Peace, supra, 63 N.J. at 129, an unquantified"intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case." And, as we noted in de la Hoya, a defendant's commission of another crime while a fugitive is another significant element of the State's intangible injury. See also State v. Fields, 137 N.J. Super. 76 (App. Div. 1975).
In exercising our original jurisdiction, therefore, we are required to apply these general standards and policy concerns to each of these cases. We note first, however, that in one of these cases, State v. Weaver, A-1338-01T3 the efforts of the surety, in our view, entitled it to exoneration. As such, the ordinary Hyers analysis does not bear upon the question of the surety's rights. We turn, then, first, to the principles applicable to that matter.
Lexington posted bail in the amount of $20,000 for Henry Weaver on February 12, 2000. He failed to appear on November 13, 2000 and a notice of bail forfeiture was issued on November 15, 2000. Investigators hired by Lexington successfully apprehended Weaver on November 28, 2000 and returned him to the custody of the Camden County authorities. Lexington filed its motion to vacate the bail forfeiture on December 15, 2000. The date of that motion is significant, for it falls within the 45 day time period set forth in R. 3:26-6(a) for filing a written objection to entry of judgment of forfeiture.*fn1 Because the surety filed its motion prior to the expiration of the 45 day period, by operation of the rule, default judgment should not have been entered and the forfeiture should have been set aside. R. 3:26-6(b). The appropriate application of that rule would have entitled the surety, therefore, to return of 100% of its bail.
See Pressler, Current N.J. Court Rules, comment 1 on R. 3:26-6 (2003).
Unbeknownst to the surety, however, following the date on which it turned Weaver over to the authorities, the judge in Camden County set aside the forfeiture on his own motion, and the judge, without notice to Lexington, then reinstated the original bail and released Weaver again. On March 26, 2001, Weaver again failed to appear and a further notice of forfeiture was sent to Lexington on April 2, 2001. The surety moved to vacate the forfeiture on the ground that the reinstatement of the bail without its knowledge or consent was improper, but its motion was denied on July 19, 2001. Investigators hired by Lexington then located and apprehended Weaver for the second time on July 25, 2001 and again returned him to the Camden County authorities. The trial court in Camden, in response to Lexington's further motion to vacate the bail forfeiture, determined that the sum of $13,750 should be forfeited and the balance of the bail should be remitted. On remand, the trial judge reaffirmed his earlier decision.
We vacate that order and direct that the entire amount of $20,000 be returned to the surety. This particular application should not have been analyzed pursuant to the dictates of Mercado, Peace, Hyers and de la Hoya but, rather, should have been analyzed in accordance with the principles we enunciated in State v. Weissenburger, 189 N.J. Super. 172 (App. Div. 1983). We there pointed out that the principles of suretyship apply to bail bonds. Id. at 176. It is a well-settled principle of suretyship that the surety is only chargeable according to the strict terms of its undertaking and that, as a result, its obligation cannot be extended or altered beyond the terms of its agreement. Monmouth Lumber Co. v. Indemnity Ins. Co. of N. Amer., 21 N.J. 439 (1956). Moreover, release or impairment of collateral acts to extinguish the surety's obligation. Langeveld v. L.R.Z.H. Corp., 74 N.J. 45, 50-51 (1977). As we held in Weissenburger, therefore, the unilateral alteration of the terms of the undertaking by the principal (here, Weaver) and the creditor (here, Camden County) without the consent of the surety (here, Lexington) discharged the surety if the modification materially increased the risk of the undertaking. State v. Weissenburger, supra, 189 N.J. Super. at 176. It could not be more plain that the court's unilateral decision to reinstate Weaver to bail was just such an increased risk. After all, he had already failed to appear, requiring the surety to apprehend him and return him to custody. Under that circumstance, it is beyond question that the surety's willingness to underwrite a further bail would have been at best debatable. The unilateral decision of the trial court thereafter to release Weaver again, his appearance secured only by the previously issued bond of Lexington, without any notice to Lexington was, from the standpoint of basic surety law, a nullity. Simply put, the court did not have the authority to effect a reinstatement of the bail bond without the consent of the surety.
Beyond that, the surety's initial prompt return of Weaver and timely motion for relief entitled it to exoneration. Plainly, when Weaver failed to appear, was apprehended by Lexington and its motion filed within the time frame then applicable under our Rule, it had completely performed its duty and should have been exonerated. The trial court erred in failing to return 100% of the bail posted under these circumstances. We therefore direct that the entire amount of the $20,000 bail be remitted to Lexington on the ground that having returned Weaver within two weeks of the original notice of his failure to appear and having moved for relief within the 45 days provided in the rule, it was entitled to have the declaration of forfeiture set aside.
In each of the other appeals the more usual analysis applies. It is undisputed that the surety supervised the individuals for whom it had posted bail. Each defendant was required to maintain regular contact with supervisors employed by the surety by phone, by mail, and in person, and the surety followed up as well with random calls and visits to their homes and their places of employment. Supervision of persons released on bail through regular contact with the surety not only assists the surety in performing its function by ensuring that it remains aware of the whereabouts of those for whom it has posted bail, but also serves to impress upon the persons released on ...