On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 03-06-01185, 03-02-00361, and 02-07-01674.
The opinion of the court was delivered by: Falcone, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Alley and Falcone.
In each of these three appeals, which we consolidate for purposes of this opinion, Sirius America Insurance Company (Sirius or the surety), a corporate surety authorized to underwrite bail bonds in this State, appeals from a bail forfeiture order entered by the Law Division, Bergen County. Sirius asserts that the trial court erred in its application of principles governing remission of forfeited bail. In Ramirez and Felton, the surety appeals from an order remitting a portion of the forfeited bail, alleging that the trial court failed to consider all of the governing principles. In Dos Santos, Sirius appeals from an order denying its motion for remission following the entry of a default judgment of forfeiture against it.
Because the surety had failed, in Ramirez and Felton, to meet its burden of establishing that it had: (1) made reasonable efforts to locate and effect the capture of the fugitive defendant; and (2) adequately supervised the defendant while he was released on bail, we affirm. In effect, Sirius failed to make a prima facie showing in these cases that it was entitled to a greater remission. In Dos Santos, since Sirius failed to prove by competent evidence that the defendant was no longer a fugitive, we affirm.
The following are the pertinent facts in each of the three cases.
I. State v. Andres Ramirez
On November 30, 2002, Sirius posted a bail bond in the amount of $150,000 for the release of Andres Ramirez from the Bergen County Jail. When Ramirez failed to appear for arraignment on June 30, 2003, a bench warrant was issued and a forfeiture of the bail was ordered. On July 7, 2003, notice was sent to the surety as required by R. 3:26-6(a) and Administrative Directive #13-04. As required by the court rule and directive, the notice advised that failure to satisfy the forfeiture or file a motion to vacate the forfeiture within seventy-five days of the date of the notice of forfeiture would result in the entry of a judgment and removal of the surety's name and the names of all of its bail agents from the Bail Registry until satisfaction was made.
On or about September 18, 2003, after a default judgment had been summarily granted, R. 3:26-6(c), counsel for Sirius filed a motion to vacate the judgment, exonerate the surety and discharge the bond. Attached to the motion papers was the affidavit of Sandy Shull, the Recovery Coordinator for the Program Administrator to the surety, in which the affiant advised that she learned on September 11, 2003 that Ramirez had been in the Passaic County Jail, having been arrested two days earlier "for a domestic dispute and [for] giving a false name to the police department." Shull further advised that Ramirez had been instructed: (1) to maintain regular contact with the surety by phone, by mail or by written correspondence; (2) to appear in court for every scheduled court event; and (3) to check in with the posting agent on a weekly basis. Shull did not, however, indicate when Ramirez had been so advised or who had spoken with him about these responsibilities. Moreover, Shull did not indicate what action had been taken by a representative of the surety to produce Ramirez for all court proceedings and to supervise him while he was released on bail as required by the terms of the recognizance. Finally, Shull did acknowledge that a review of the surety's records revealed that Ramirez had "failed to contact the field office as required", but offered no explanation as to what the surety or any of its representatives did to ensure Ramirez's compliance with the written conditions of the recognizance.
When the motion was heard on January 27, 2004, Judge Meehan forfeited $25,000 of the bail, an amount that represents 16.7 percent of the posted bail, because Ramirez had been "gone for a short period of time but not too long." By order dated January 27, 2004, the motion judge directed the Bergen County Finance Manager to "vacate the bail forfeiture and discharge the bond, upon payment of $25,000 . . .", thus, remitting $125,000, slightly more than eighty-three percent of the bond, to the surety. The form order placed Sirius on notice that failure to satisfy this judgment will result in removal of the names of all the corporate surety company's licensed insurance producers, limited insurance representatives and limited lines insurance producers from the Bail Registry maintained by the Clerk of the Superior Court pursuant to Rule 1:13-3, until such time as this judgment has been satisfied.
In effect, Sirius was advised that it and its agents would no longer have authority to write bails in this State until such time as the judgment was satisfied.
Sirius filed a timely notice of appeal and motion to stay the proceedings or set a supersedeas bond amount as authorized by R. 2:9-6(c), which provides, in pertinent part, that "[s]imultaneous with the filing of [a] notice of appeal in respect of a bail forfeiture judgment by or on behalf of an insurer, the appellant shall deposit the full amount of the judgment with the Clerk of the Superior Court in cash or by certified, cashiers or bank checks", but that the court "for good cause shown may allow the posting of a supersedeas bond in lieu of the cash deposit." By order dated May 12, 2004, we denied the surety's motion to stay the proceedings or set a supersedeas bond. See N.J.S.A. 17:31-12 (the "good cause" required for the posting of a supersedeas bond by a surety company filing an appeal from a judgment entered against it to enforce the forfeiture of a bail does not mean "an application by a surety to extend the time to forfeit a bond, to stay payment of a forfeiture of default judgment, or to extend the time to locate a defendant").
II. State v. Manuel Felton
On October 3, 2002, Sirius posted a bail bond in the amount of $75,000 for the release of Manuel Felton from the Bergen County Jail. When Felton failed to appear for sentencing on August 22, 2003, a bench warrant was issued and a forfeiture of the bail was ordered. The notice to surety required by court rule and administrative directive was sent three days later. See R. 3:26-6(a) and Administrative Directive #13-04.
On or about October 6, 2003, a member of the Bergen County Prosecutor's Fugitive Squad located Felton in the Passaic County Jail, where he was being held on new criminal charges.
Thereafter, it appears that a default judgment was summarily granted by Judge Meehan, R. 3:26-6(c), since the surety had failed to satisfy the forfeiture or file a motion to vacate the forfeiture within seventy-five days of the notice. Counsel's subsequent motion to vacate the judgment, exonerate the surety and discharge the bond was heard by Judge Meehan on January 27, 2004. It appears that Sirius did not provide the court with any evidence of its compliance with the standard conditions of the recognizance or any evidence of its efforts to locate Felton. Since Felton had been "involved in more criminal activity", Judge Meehan "set [the amount to be paid by the surety] at $10,000." It appears that the dollar amount referenced in the transcript is in error, since the order of January 27, 2004 clearly indicates that the bail forfeiture would be vacated and the bond discharged "upon payment of $15,000", an amount that represents 20 percent of the posted bail. Moreover, in its appellate brief and appendix, Sirius concedes that the amount is $15,000.
Notwithstanding a remittance of $60,000, an amount which is eighty percent of the original bond, the surety filed a timely notice of appeal and a motion to stay the proceedings or set a supersedeas bond amount. R. 2:9-6(c). The motion was denied by Judge Meehan. By order dated May 12, 2004, we denied the surety's motion to stay the proceedings or set a supersedeas bond. Subsequently, in an order dated August 10, 2004, Sirius was directed to deposit $15,000 with the Clerk of the Superior Court in order "to secure the appeal . . . pending its outcome", as required by R. 4:57-2(a).
III. State v. Antonio Dos Santos
On June 22, 2002, Sirius posted a bail bond in the amount of $200,000 for the release of Antonio Dos Santos from the Bergen County Jail. When the defendant failed to appear for a scheduled status conference on October 21, 2002, a bench warrant was issued and a forfeiture of the bail was ordered. On November 6, 2002, a notice of the forfeiture was sent to the surety as required by R. 3:26-6(a) and Administrative Directive #13-04. The form notice advised that failure to satisfy the forfeiture or file a motion to vacate the forfeiture within seventy-five days of the date of the notice of forfeiture would result in the entry of a judgment and removal of the surety's name and the names of all of its bail agents from the Bail Registry until satisfaction was made. Upon receipt of the notice, the surety assigned a recovery agent to locate and apprehend Dos Santos.
On February 19, 2003, Judge Meehan summarily entered a default judgment under R. 3:26-6(c). Days later a notice was sent to Sirius, which advised that if it failed to satisfy the judgment, and until satisfaction was made, its name and the names of any of its agents would be removed from the Bail Registry.
On September 3, 2003, counsel for Sirius filed a motion to vacate the judgment, exonerate the surety and discharge the bond. In support of the motion, counsel submitted: (1) an affidavit of the assigned recovery agent, which indicated that Dos Santos had died; (2) a faxed copy of a Brazilian death certificate; and (3) an English translation of the faxed copy, which indicated that an Antonio Padroeiro Dos Santos Filho died in Brazil on April 4, 2003, from cranial trauma.
The motion was scheduled for September 18. At that time, and based on the State's objection to the motion, Judge Meehan granted the surety's request for an adjournment in order to authenticate the purported death certificate. On two separate occasions over the next four months, additional adjournment requests by the surety were granted, since both Sirius and the Fugitive Squad of the Bergen County Prosecutor's Office were unable to authenticate the death certificate.
On February 24, 2004, Judge Venezia heard the matter. After denying the surety's application for a further adjournment, the motion judge denied the motion to vacate the forfeiture. A confirming order was entered that date. A timely notice of appeal was filed. Thereafter, we denied the surety's motion to stay the proceedings or set a supersedeas bond. See N.J.S.A. 17:31-12 and R. 2:9-6(c).
On appeal, Sirius advances the following arguments in all three cases:
THE TRIAL COURT ERRED IN FAILING TO CONSIDER ALL OF THE EQUITABLE FACTORS SET FORTH IN THE CASE LAW PERTAINING TO VACATING A FORFEITURE
THE TRIAL COURT ERRED IN APPARENTLY CONSIDERING ONLY ONE OF THE EQUITABLE FACTORS REGARDING REMISSION AND VACATION TO THE EXCLUSION OF ALL OTHERS.
THE TRIAL COURT ERRED IN FAILING TO ARTICULATE ITS CONSIDERATION OF THE REQUIRED ...