June 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH ROBINSON, DEFENDANT, AND AMERICAN RELIABLE INSURANCE COMPANY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-09-01108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges C. S. Fisher and Yannotti.
American Reliable Insurance Co. (American) appeals from an order dated May 15, 2006, which denied its motion to vacate a bail forfeiture and entered judgment against American in the amount of $35,000. For the reasons that follow, we reverse.
Defendant Kenneth Robinson was released on bail following the filing of a surety bond in the amount of $35,000 issued by American. Defendant failed to appear in court on November 8, 2004, and on or about November 9, 2004, American was notified that the judge had issued a warrant for defendant's arrest, and ordered the forfeiture of bail. The notice stated that unless American moved within 75-days to have the forfeiture set aside, a default judgment would be entered "for the full amount posted." American did not seek to have the forfeiture set aside within the time specified in the notice and, accordingly, on February 2, 2005, a default judgment was entered against American in the amount of $35,000.
On or about March 4, 2005, American moved to vacate the bail forfeiture and to discharge the bail. In support of its motion, American submitted a certification by its attorney, in which he stated that he had been advised by his client that prior to the forfeiture, it had kept "in touch" with defendant by mail, telephone and personal contact "to insure his presence in Court." According to counsel, defendant appeared in court "on various occasions and a forfeiture was not anticipated."
Counsel added that immediately upon notification of the forfeiture of bail, American commenced an investigation by contacting his friends, family, and the indemnitor. Surveillance was conducted at defendant's last known address and other locations. Counsel stated, "The surety hired professional investigators to assist in locating [defendant] and divers[e] sums of money were spent in these attempts." It appears that defendant was arrested on December 22, 2005, in North Carolina and he was incarcerated there. According to counsel, "Middlesex County authorities were notified so that a detainer could be filed."
The County opposed American's motion. At oral argument on May 3, 2006, the deputy county counsel stated that the prosecutor had lodged a detainer with the North Carolina authorities on March 2, 2005. The County argued that the full amount of the bail should be forfeited. The County maintained that the surety's "essential undertaking" will not be satisfied "unless and until [defendant] is produced in the jurisdiction of New Jersey, at which time the [s]urety can make an application seeking remission of funds."
The judge decided to deny the motion and placed her reasons for doing so on the record. The judge stated that the surety's burden is to "fulfill the essential obligation of the recognizance and to secure the defendant's return to custody." The judge added:
It is that primary obligation that remains unsatisfied and, based upon the defendant's out of state status[,] he is considered to be a fugitive and, therefore, notwithstanding [the fact that] he is awaiting extradition, the default judgment stands, and the request to vacate [the] forfeiture [is] denied as well, and any considerations made for a return of funds are more appropriately to be made . . . in an application for remission at such time [as] the defendant is produced.
The judge entered judgment against American in the amount of $35,000, and this appeal followed.
A decision to remit forfeited bail "lies within the equitable discretion of the court to be exercised in the public interest." State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003). In exercising its discretion, the court must consider: the corporate status of the surety, the surety's supervision of defendant while released on bail, the surety's efforts to ensure the fugitive's return, the length of time between the fugitive's non-appearance and return, both 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 interest of justice. [Id. at 198-99 (citing State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)).]
The court should also consider certain other "overarching concerns."
Paramount among them is the necessity of providing an incentive to the surety to take active and reasonable steps to recapture a fugitive defendant. Beyond that, if remission were unreasonably withheld, corporate sureties might be overcautious in their willingness to post bail, resulting in an impairment of an accused's constitutional right to pretrial bail. We are also satisfied that the amount of the posted bail is a factor to be considered. That is to say, in determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its quantum. [Id. at 199.]
In addition, considerable weight should be given to the amount of time that the defendant has remained a fugitive, and the surety's efforts to secure the defendant's return. Ibid. (citing State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000)). When a surety seeks remission of forfeited bail, it "'bears a heavy burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody.'" Ibid. (quoting Mercado, supra, 329 N.J. Super. at 271). Furthermore, there is "'an intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.'" Ibid. (quoting State v. Peace, 63 N.J. 127, 129 (1973)). The public interest also is harmed when a defendant commits another crime while a fugitive, and is absent for an unreasonable period of time. Id. at 200.
We applied these principles in State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003), in deciding sixteen appeals by sureties from orders denying in whole or in part their applications for remission of forfeited bail. Id. at 253. We established general parameters for the exercise of discretion by the trial courts in bail forfeiture cases. We stated that generally, if a "defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission [in these circumstances] is entirely appropriate." Id. at 255. Furthermore:
[b]ecause the recapture of the fugitive defendant and his ultimate appearance before the court constitute the essence of the surety's undertaking, . . . even if the surety's efforts in the recapture were minimal, the fact of the recapture must be accorded weight in [the analysis]. 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.
[Id. at 256-57.]
We added that, "some small remission" might be warranted even though the surety did not supervise or monitor the defendant after he had been released on bail; did not take steps to recapture him when informed of his nonappearance; and the defendant was charged with committing a new offense while a fugitive. We observed, "[T]he fact of recapture constitutes a fulfillment, at least in some small part, of the surety's objective obligation that defendant be produced in court entitling the surety to some small remission . . . of ten percent of the posted bail." Id. at 260.
Here, the judge erred by concluding that American's essential undertaking under its surety bond would not be fulfilled "unless and until" defendant is produced in New Jersey. That finding is inconsistent with our statement in Harmon, where we indicated that the recapture of a defendant who failed to appear constitutes fulfillment at least in "some small part" of the surety's obligation to ensure the defendant's appearance.
Thus, contrary to the judge's decision in this matter, a surety need not wait until defendant is returned to custody in New Jersey before seeking remission of the forfeited bail. Because defendant has been incarcerated and is no longer a fugitive, the surety may seek remission before defendant is returned to New Jersey on the ground that it has satisfied, "in some small part," its obligation to ensure defendant's appearance. Under Harmon, the surety would be entitled to a "small remission" of the forfeited bail unless the judge determines, in the exercise of discretion, that relief is not warranted in the particular circumstances of the matter, upon consideration of the relevant factors and "overarching concerns" identified in de la Hoya, supra, 359 N.J. Super. at 198-99.
Therefore, we reverse the order entering judgment against American and remand the matter to the trial court for reconsideration of American's motion to remit the forfeited bail. We expect that on remand, American will submit to the trial court an affidavit or certification from a person or persons with personal knowledge of the relevant facts, rather than an affidavit of counsel detailing what he was told by his client. See R. 1:6-6; Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
© 1992-2007 VersusLaw Inc.