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State v. Burton


July 9, 2007


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-02-00238.

Per curiam.


Submitted May 31, 2007

Before Judges Yannotti and Messano.

In this bail forfeiture matter, the surety, Harco National Insurance Co. (Harco), appeals the motion judge's May 15, 2006, order that 1) denied its motion to vacate the forfeiture and discharge its bond and 2) entered judgment in favor of the State of New Jersey in the amount of $25,000.*fn1 The salient facts are as follows.

Defendant Frazier Burton was released from custody on February 12, 2003, after posting a $25,000 surety bond issued by Harco. On May 12, 2003, defendant failed to appear in court as required, a bench warrant was issued, and his bail was forfeited. On or about May 27, 2003, Harco filed a motion objecting to the bail forfeiture and requesting additional time to locate and surrender defendant.

The State did not file opposition to the motion. However, for reasons unexplained in the record, Harco's motion was not heard.*fn2 In April, 2004, Harco filed the certification of its employee, James Irizarry, Jr., in supplemental support of its motion. Irizarry certified that by utilizing the Federal Bureau of Prisons website, he was able to locate defendant at the Schuylkill Federal Correctional Institute. Irizarry contacted the facility and learned that defendant had been in federal custody since August 2003, and had been an inmate at Schuylkill since February 2004. His projected release date from custody was March 13, 2009. Irizarry conveyed this information to personnel in the Superior Court's criminal division.

On May 3, 2006, the motion judge heard oral argument on Harco's motion. Harco argued that defendant was located in custody within a very short time of his failure to appear in court and that the State, which apparently had filed a detainer against defendant, simply chose not to extradite him. Harco argued that it was inequitable for the court to forfeit its bond under these circumstances.

Although the State attempted to explain its own efforts in locating defendant since he absconded, and the reasons for not extraditing defendant, the judge correctly observed that none of that information was "the subject of [a] certification." She noted that "the arguments . . . made with respect to the ability or inability to procure the presence of the missing defendant . . . as well as [Harco's] continuing efforts . . . to monitor the defendant's whereabouts, are considerations that . . . almost appear to cancel each other out." The judge concluded that defendant's imprisonment in another state was "not sufficient to relieve forfeiture in whole or in part." She orally denied Harco's motion and memorialized her decision in an order entered on May 15, 2006. On July 21, 2006, the judge entered a default judgment against Harco in favor of the State and the County of Middlesex in the amount of $25,000.

We have carefully considered the arguments raised on appeal in light of applicable legal standards. We reverse and remand the matter to the motion judge for further proceedings consistent with this opinion.

The motion judge expressly relied upon our decisions in State v. Erickson, 154 N.J. Super. 201 (App. Div. 1977) and State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003). While those cases support the general proposition that the surety is not entitled to exoneration merely because the absconding defendant has been located and is detained in another jurisdiction, both were decided prior to the promulgation of the remittitur guidelines issued by the Administrative Director of the Courts. See Directive # 13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004).

As we noted in State v. Toscano, 389 N.J. Super. 366 (App. Div. 2007),

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.

[Id. at 370 (quoting State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003)).]

The judge "must also explain how [she] weighed" the relevant factors. Ibid. (quoting State v. De La Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003). Additionally, the judge "must consider the remittitur guidelines, which were developed to promote consistent application of the factors identified in our case law," id. at 371, and "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).

In reaching her decision to deny Harco's motion and enter judgment for the full amount of the surety bond, the motion judge failed to make adequate factual findings or identify the equitable factors supporting her decision, and further failed to consider the remittitur guidelines. We therefore reverse and remand the matter for reconsideration in light of those guidelines and our prior decisions. Toscano, supra, 389 N.J. Super. at 377.

Reversed and remanded.

We do not retain jurisdiction.

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