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State v. Simoes

June 18, 2007


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-06-2350.

Per curiam.


Submitted May 31, 2007

Before Judges C. S. Fisher and Yannotti.

Harco National Insurance Company (Harco) appeals from an order dated May 18, 2006, which granted in part and denied in part Harco's motion for remission of forfeited bail, and required Harco to pay $100,000. For the reasons that follow, we affirm.

The following facts inform our decision. Defendant Carlos Simoes was arrested on October 10, 2003, and charged with various offenses involving the possession, distribution and manufacture of controlled dangerous substances (CDS). On November 5, 2003, defendant was released on bail and posted a $250,000 surety bond issued by Harco. Thereafter, Harco advised defendant that he must maintain regular contact by phone, mail or written correspondence. Harco also instructed defendant to check in each week with the "posting agent."

However, according to Harco's records, defendant failed to comply with its instructions. Commencing in December 2003, Harco sent letters to defendant noting his failure to maintain regular contact but apparently took no further steps to ensure that defendant complied with his obligations under the bond agreement. On July 9, 2004, defendant failed to appear in court. The judge issued a bench warrant and ordered the forfeiture of bail.

On or about July 14, 2004, a notice of the forfeiture was issued indicating that a default judgment in the amount of the forfeited bail would be entered unless a motion was made within 75 days to set aside the forfeiture. According to Harco's counsel, immediately upon being informed of the forfeiture, Harco took steps to locate defendant. Harco contacted defendant's friends and family, as well as the indemnitor. Surveillance was conducted at defendant's last known address and other places. Harco also hired a professional investigator to assist in locating defendant. The investigator learned that defendant had been arrested on October 11, 2004, charged with various offenses relating to the possession, distribution and manufacture of CDS, and was incarcerated in the Ocean County jail.

Harco did not seek to set aside the forfeiture within the time required by the July 2004 notice and, accordingly, a default judgment was entered against defendant, Harco, Brick City (the bail bond agency), and Khalif Rasul (the bail bondsman) in the amount of $250,000. On or about January 21, 2005, Harco filed a motion to vacate the default judgment and the bail forfeiture. The County opposed the motion.

The motion was heard on April 21, 2006, and the judge placed his decision on the record on that date. The judge found that Harco was entitled to "substantial" relief. The judge decided to remit 60% of the forfeited bail and ordered the forfeiture of $100,000. The judge entered an order in conformance with his decision and this appeal followed.

Harco contends that the judge erred by only ordering the remission of 60% of the forfeited bail. Harco maintains that the judge failed to give sufficient weight to the amount of the bail; its efforts to monitor defendant upon his release; the actions it took to locate defendant; and the fact that defendant was a fugitive for less then three months. Harco contends that forfeiture of 40% of the bail is unreasonable in the circumstances and not in the interests of justice. Harco further argues that a defendant's commission of another offense while a fugitive should not be considered in a bail forfeiture proceeding. We disagree with these contentions and affirm.

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 our view, the judge's determination in this matter reflects an appropriate weighing of the relevant factors, including the surety's supervision of defendant while on bail; its efforts to secure defendant's return to custody; and the length of time between defendant's non-appearance and his return to custody. Id. at 198-99 (citing State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)). Moreover, the decision at issue here reflects a proper consideration of other "overarching concerns," such as the need to provide incentives so that sureties will take steps to recapture fugitive defendants; the avoidance of unreasonable decisions that might dissuade commercial sureties from providing bail bonds; the fact that defendant committed another crime while a fugitive; and the amount of the bond itself. Id. at 199-200. Based on our review of the record, we are convinced that the judge did not abuse his discretion by remitting 60% of the forfeited bail, and ordering Harco to pay the remaining $100,000.

Notwithstanding Harco's arguments to the contrary, we are satisfied that the remission ordered here was substantial and Harco failed to establish a basis for any further relief. Indeed, the evidence before the trial court may have justified a less generous approach. The record shows that, contrary to Harco's assertions, it did not closely monitor defendant while he was released on bail, and defendant failed to maintain regular contact with Harco's field office. Moreover, while Harco took steps to locate defendant after he failed to appear and bail was forfeited, its actions did not ...

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