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State v. Harmon

June 13, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID HARMON, DEFENDANT, AND HIGHLANDS INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
REGINALD LEVINS, DEFENDANT, AND HIGHLANDS INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRED GILBERT, DEFENDANT, AND ALLEGHENY MUTUAL CASUALTY CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JACOB MURRAY, JR., DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
REFAT MOHAMMED, DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN GLENN, DEFENDANT, AND NORTHWESTERN NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL PEREZ, DEFENDANT, AND NORTHWESTERN NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHELLE VELEZ, DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHARIF COLEMAN, DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES PAGE, DEFENDANT, AND NORTHWESTERN NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HECTOR RIVERA, DEFENDANT, AND NORTHWESTERN NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAMONT WALKER, DEFENDANT, AND SIRIUS AMERICA INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLIFFORD TYSON, DEFENDANT, AND SIRIUS AMERICA INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HECTOR FELICIANO, DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRANCE JOHNSON, DEFENDANT, AND NORTHWESTERN NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ABRAHAM MATOS, DEFENDANT, AND LEGION INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, W-2000-002395, W-2001-000290, 99-2-400-I, 00-2651-I, 00-5-1607-I, 02-02-00728-I, 2-2-569-I, 01-02-0456-I, 00-05-01713-I, 01007451002, 02000027001, 02001256001, 02-02-00793-I, 00-09-2993-I, 02-04-1173-I and 01-01-000-63-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

Argued May 28, 2003

These are sixteen bail forfeiture appeals in which the surety appeals from an order either denying its motion for remission following the entry of default judgment of forfeiture against it or remitting a portion of the forfeited bail asserted by the surety to have been insufficient under the circumstances. All these appeals are from orders entered in Camden County, some following remands by this court, and we consolidate them for purposes of this opinion. For the reasons we expressed in State v. de la Hoya, 359 N.J. Super. 194 (App. Div. 2003), we have elected to exercise original jurisdiction pursuant to R. 2:10-5 in order to finally resolve these disputes rather than again remanding to the trial court.

As we said in de la Hoya, supra, 359 N.J. Super. at 198:

The framework of the law governing forfeiture and remission of bail is set forth in R. 3:26-6, as relaxed by Supreme Court orders entered on November 1, 2000, and June 11, 2002. In brief, R. 3:26-6(a) provides that upon the breach of a condition of bail, the court on its own motion shall declare a forfeiture, and absent an objection by the surety seeking to set the forfeiture aside, a judgment of forfeiture shall be entered within 75 days after the declaration of forfeiture. Paragraph (b) permits the court to"direct that a forfeiture be set aside if its enforcement is not required in the interest of justice upon such conditions as it imposes." And paragraph (c) requires the judgment of forfeiture to be entered following the prescribed 75 days if an objection has not been made, but further authorizes the court, after judgment is entered, to remit the bail to the surety in whole or in part"in the interest of justice."

We again start with the proposition 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), and must, moreover, be consistent with the policy concerns we identified in de la Hoya, 359 N.J. Super. at 199. Paramount among them is the necessity 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 should not, therefore, be viewed as primarily a revenue-raising technique for the public fisc.

With respect to the specific factors to be weighed within the framework of the policy concerns, the primary consideration, as we held in 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 the defendant is a fugitive, the prejudice to the State and the expenses incurred by it resulting from 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. Hyers, supra, 122 N.J. Super. at 180. The detriment to the State also includes, as held by Peace, supra, 63 N.J. at 129, an unquantified"intangible element of injury to the public interest in almost any case 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 a significant element of the State's intangible injury. See also State v. Fields, 137 N.J. Super. 79 (App. Div. 1975).

In exercising our original jurisdiction our task is to apply these standards and policy concerns to each of the cases before us. Before addressing the common elements in these cases, we hold first that where defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate. In two of the appeals before us, State v. Abraham Matos, A-339-01T1, and State v. James Page, A-2055-02T1, that appears to have been the fact. In both cases, the motion for remission was denied in full, and we affirm. We note, however, that if the defendant in each of these appeals is recaptured within four years of the date of his original non-appearance, January 9, 2001, in the case of Matos and May 3, 2002, in the case of Page, the surety may renew its motion. See N.J.S.A. 2A:162-8.

With respect to all the other appeals before us, it is not disputed that the surety failed to supervise and monitor the defendant following his release on bail. To be sure, there are affidavits of surety personnel submitted on some of its motions asserting that the surety maintains a monitoring policy that requires weekly reporting by the defendant. But it is equally clear that that policy has been as totally disregarded by the surety as it has been by the defendant. The other common element is the perfunctory nature, except in one case to which we hereafter refer, of the surety's attempt to recapture the fugitive after receiving notice of forfeiture by virtue of non-appearance. The surety did not assign a recovery agent or other investigator to locate and apprehend the defendant. Rather, it relied exclusively on eventual telephone inquiries of jails to determine if the defendant had been rearrested, sometimes making the call on information provided by the indemnitor on the bond. In some cases it promptly advised the prosecutor or other county authorities so that appropriate detainers against the defendant could be lodged, and in other cases, it apparently assumed that the county authorities would eventually obtain that knowledge from other sources. In some of these cases, the defendant committed a new offense while a fugitive and in some cases not. Finally, the County did not assert any expenditure by it of time, effort or money in seeking to recapture the defendant and enforcing the forfeiture. While it failed to do so on the representation that quantification of these expenditures was impractical, we are nevertheless satisfied that the intangible-injury category should appropriately take into account the county's employment of a fugitive squad, the expenses resulting therefrom, and the county's efforts in enforcing forfeiture.

Because the recapture of the fugitive defendant and his ultimate appearance before the court constitute the essence of the surety's undertaking, we are satisfied that even if the surety's efforts in the recapture were minimal, the fact of the recapture must be accorded weight in terms of implementation of the policies we have identified. This is particularly so where the time lapse between non-appearance and recapture is not inordinately long and the defendant has not committed a new crime during his fugitive period. We have determined that in these circumstances a remission of twenty percent of the posted bail is fair to the competing interests of the surety, the indemnitor who has posted collateral, defendants' general interest in the availability of commercial bail, and the interests of the State. There are seven cases before us that fit into this category, as follows:

In State v. Jacob Murray, Jr., A-1712-02T1, the surety posted bail in the amount of $10,000 on September 1, 1999. Defendant failed to appear at a scheduled court event on March 24, 2000. A warrant was issued on that date, and a forfeiture of bail declared.

The warrant was executed by county officials on September 11, 2000, some six months later. Defendant was charged with no new offense in the interim. The surety learned of the rearrest, in which it had played no part, and moved for remission. The motion was denied in full. We reverse ...


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