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State v. Toscano

January 4, 2007


On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-01181.

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



Argued October 31, 2006

Before Judges Skillman, Lisa*fn1 and Grall.

Safety National Casualty Corporation (Safety) posted a bail bond in the amount of $40,000 for defendant Louis Toscano. Safety appeals from an order of July 6, 2005, which remits $8000 and forfeits $32,000 of that bond. Because the trial court did not have the benefit of this court's decision in State v. Ruccatano, 388 N.J. Super. 620 (App. Div. 2006), and did not apply the remittitur guidelines issued by the Administrative Director of the Courts or weigh the factors relevant to remission, we remand. See Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004).

The facts are not in dispute. Safety, a commercial surety, did not provide any information about its efforts to supervise Toscano after posting his $40,000 bond. On October 1, 2004, Toscano failed to appear in court as required. His bail was revoked and a warrant was issued. On October 17, 2004, Toscano was "incarcerated on other matters." On November 8, 2004, the warrant was executed, and Toscano was no longer considered at large. On November 10, 2004, notice of bail forfeiture was issued; it did not advise that Toscano was in custody.

On December 7, 2004, Safety's recovery agent commenced efforts to recapture Toscano by making inquiry of the Camden County Criminal Records. He was told that Toscano was incarcerated and scheduled to appear in court on December 15, 2004.

Safety moved to vacate the forfeiture of the bond on December 14, 2004. The County opposed the application and submitted an affidavit of the Undersheriff, who described the operation and cost of his department's "fugitive recovery" program. No other evidence was presented.

The trial judge found the following. Safety's supervision of Toscano while he was released on bail was "wholly inadequate." Although Toscano was a fugitive for thirty-nine days, "a fairly short period of time," and there was no evidence that he committed a crime while released, Toscano "was already in the custody of Camden County" when Safety made inquiry. Safety failed to demonstrate that it "made any substantial attempt to recapture or to monitor the defendant." There was no prejudice to the State's case and no harm to the public interest beyond the expense and intangible injury associated with every deliberate failure to appear. Relying upon "an overarching public interest that favors rewarding a commercial surety when it has taken any step towards the recapture of the defendant," the judge determined that a "twenty percent remission" was "fair to all parties involved."

Although "the decision to remit bail and the amount of remission are matters within the sound discretion of the trial court," the court must consider the factors and policies that are relevant to the equitable exercise of its discretion. State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003) (discussing the factors and citing State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003); State v. Mercado, 329 N.J. Super. 265, 269-71 (App. Div. 2000); State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)). It is not enough for the court to recite the relevant factors; the court "must also explain how it weighed them." de la Hoya, supra, 359 N.J. Super. at 200.

The court also must consider the remittitur guidelines, which were developed to promote consistent application of the factors identified in our case law and to "provide 'a starting point when determining . . . the amount to remit.'" State v. Harris, 382 N.J. Super. 67, 71 (App. Div. 2005) (quoting State v. Ramirez, 378 N.J. Super. 355, 366 (2005)), certif. denied, 186 N.J. 365 (2006); see Directive #13-04, supra, Attachment F. The remittitur guidelines are set forth in full in Ramirez, supra, 378 N.J. Super. at 366-71, and discussed in Ramirez, Harris, State v. Hawkins, 382 N.J. Super. 458, 465-66 (App. Div. 2006) and Ruccatano, supra, 388 N.J. Super. at 623-29.

Proper application of the Director's remittitur guidelines requires an understanding of the structure. The four major sections are: "Policy Concerns To Consider in Determining Remission"; "Factors to Weigh in Determining Remission"; "Balancing of Factors"; and "Guidelines." Directive #13-04, supra, Attachment F. The final section provides three schedules that suggest remission amounts to be used as the "starting point." Ibid.; see Ruccatano, supra, 388 N.J. Super. at 624-25. The four sections are related. Based on the particular facts of the case, the remission amount indicated by the schedules included in the "Guidelines" should be increased or decreased after balancing the factors that have been weighed in accordance with the policy concerns. See Ruccatano, supra, 388 N.J. Super. at 627-28; Harris, supra, 382 N.J. Super. at 71.

The two policy concerns identified in the Directive are "providing an incentive to the surety to take active and reasonable steps to recapture" and avoiding unreasonable measures that would likely lead sureties to "be overcautious" in posting future bail bonds. Directive #13-04, supra, Attachment F; see Ruccatano, supra, 388 N.J. Super. at 624 (quoting the provisions); de la Hoya, ...

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