On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 04-04-00265-I.
The opinion of the court was delivered by: Levy, P.J.Ch. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2005
Before Judges Stern, Grall and Levy.
AA Bail Bonds, Inc. ("AA") appeals an August 16, 2004 order requiring a 60-percent forfeiture of each of two bails, one for $50,000 and one for $25,000.*fn1 The $25,000 bail, posted on August 3, 2003, initially covered only an August 2, 2003 arrest for several related drug charges, including second-degree distribution in violation of N.J.S.A. 2C:35-7.1. On August 5, 2003, however, the same $25,000 posting was apparently permitted to cover a second charge as well, a third-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)5. That assault charge was initiated on August 4, 2003 based upon an alleged assault by defendant while he was incarcerated awaiting posting of the first bail. He was indicted on the assault charge on October 21, 2003.*fn2
On September 14, 2003, while free on AA's $25,000 bond, defendant was issued a summons charging another third-degree assault in violation of N.J.S.A. 2C:12-1(b)7 and requiring him to appear in municipal court on October 8, 2003. Defendant failed to appear. Defendant also failed to appear for a pre- arraignment interview on the indicted assault charge. The State and defendant do not agree on the date that defendant failed to appear or whether the $25,000 bail was forfeited.
AA maintains that defendant failed to appear on November 19, 2003 and that bail was forfeited and a bench warrant issued for his arrest. AA relies upon the January 15, 2004 certification of Assistant Prosecutor Marian R. Ragusa and an attached Promis/Gavel printout filed in support of the State's motion to revoke bail. The printout shows a bench warrant was issued on November 19, 2003 and states as a comment: "AGG ASSAULT ON LEO/BAIL FORFEITED." AA notes that there is no record that the bail was ever reinstated. Ragusa's certification also states that defendant's bail was not reinstated.
The State contends that the failure to appear occurred on November 10, 2003 and that, although a bench warrant was issued, bail was not forfeited. The State relies upon the May 24, 2004 affidavit of Assistant County Counsel Barbara L. Bakley-Marino filed in opposition to a motion to set aside forfeiture.*fn3 That affidavit, which is not supported by a reference to Promis/Gavel or any other record, simply states: "On November 10, 2003, the defendant failed to appear for a pre-arraignment conference and a bench warrant was issued for his arrest. It does not appear that the bail was forfeited."
Both parties agree that defendant was arrested on December 20, 2003 for his failure to appear in November and the bench warrant was executed. On December 24, 2003, AA posted another bail of $50,000 for the same two charges, that is, the drug charges for which defendant was arrested on August 2, 2003 and the indicted aggravated assault charge.
On January 9, 15 and 16, 2004, an arraignment/status conference was held on that indicted aggravated assault charge, and at the same time there was a predisposition conference on two other pre-indictment charges for drugs and assault. Defendant was present at each one. During the January 9 conference, the judge stated the following:
Okay. Now my concern is bail status. What is a person with three outstanding [criminal] charges doing out on bail[?] It sometimes happens that the Municipal Court Judge has set bail without knowing that there are other complaints lodged against the defendant. So I would just urge you to review that bail status and if appropriate, in your opinion, file an application . . . .
On January 15, the judge asked whether an application "for at least a change in bail" had been filed and, when advised that it had not, asked the prosecutor to "formally do that." The State filed a motion to revoke or increase bail that same day. AA did not receive notice of the motion.
On January 16, a new attorney, who had received the file only an hour before the proceeding, represented defendant. The judge again expressed concern about defendant's bail status, given defendant's prior failures to appear and the fact that he faced three separate charges, at least ...