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State v. Ruccatano

November 17, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK RUCCATANO, DEFENDANT, AND LEXINGTON NATIONAL INSURANCE CO., SURETY. EASTERN BAIL BOND AGENCY, INC. APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-0031302.

The opinion of the court was delivered by: Weissbard, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 26, 2006

Before Judges Kestin,*fn1 Weissbard and Payne.

Eastern Bail Bond Agency, Inc. (Eastern) appeals from an October 11, 2005 Order of Partial Bail Forfeiture and Partial Remission of Bail. Eastern posted a $2500 bail bond for defendant Mark Ruccatano, which was forfeited when Ruccatano failed to appear for a scheduled court date. On Eastern's motion, the Law Division judge remitted ten percent of the bond, resulting in an order that Eastern pay $2250 to the County of Morris. We conclude that the judge improperly interpreted the Remittitur Guidelines governing partial remission of forfeited bail bonds. Accordingly, we reverse.

The facts are simple and essentially undisputed. Ruccatano was charged in a complaint with possession of heroin. On or about September 5, 2004, Eastern posted a bond for Ruccatano in the amount of $2500. Defendant was scheduled to appear for a pre-indictment conference on October 25, 2004; he did not appear, and a bench warrant was issued. In an affidavit submitted to the Law Division, Eastern's President asserted that the agency "was never notified of a Court date for the defendant" and "was not notified of the bail forfeiture until November 22, 2004." Morris County did not submit anything to counter these statements. Once having received notification of the forfeiture and bench warrant, someone from Eastern went to defendant's residence and spoke with his father, who reported that defendant was in the Essex County jail, having been there since November 12, 2004. Eastern verified the information and promptly notified the Morris County Warrant Squad of defendant's location. As a result, a detainer was lodged to insure his appearance in Morris County upon release from confinement. At the time of the remission motion, defendant remained incarcerated in Essex County; Morris County had not incurred any costs to obtain defendant's appearance as of that date.

Concerning its supervision of defendant, Eastern stated that it "advised[ed] the Defendant to notify the Court as they routinely fail to send out notices." At oral argument, Eastern conceded that it had not exercised any additional supervision.

In the wake of our opinions in State v. Dillard, 361 N.J. Super. 184 (App. Div. 2003) and State v. Clayton, 361 N.J. Super. 388 (App. Div. 2003), Administrative Directive #13-04 was issued on November 17, 2004. Attachment F to that Directive was "Remittitur Guidelines (Superior and Municipal Courts)". We endorsed the use of these Guidelines in State v. Ramirez, 378 N.J. Super. 355, 366-71 (App. Div. 2005).

Notably, the introduction to the Guidelines emphasizes that:

The following are a broad set of guidelines that have been developed to provide judges with a starting point when determining whether to grant a remission, and, if so, the amount to remit. Obviously, the particular facts in an individual case will determine whether the amount to remit is increased or decreased. The genesis for developing some of the guidelines was derived from recent Appellate Division decisions.

At the outset, the Guidelines set forth two "Policy Concerns To Consider In Determining Remission":

1. The necessity of providing an incentive to the surety to take active and reasonable steps to recapture a fugitive defendant.

2. The fact that if remission were unreasonably withheld, corporate sureties might be overcautious in their willingness to post bail, resulting in an impairment of an ...


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