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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...