On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 99-09-1226, 01-06-749, and 05-09-1195.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Weissbard*fn1 and Payne.
In these bail forfeiture cases, which we have consolidated for purposes of argument and this opinion, the corporate surety, Safety National Casualty Corp., appeals from orders of the trial court denying its motions to set aside forfeitures of bail. The primary issue raised by all three of the matters is whether an order of forfeiture should be vacated when the defendant has been located in an out-of-state jail or prison and a detainer has been lodged, but the defendant has not been returned to this State.
In our opinion in State v. Erickson, 154 N.J. Super. 201 (App. Div. 1977), we distinguished situations in which a defendant forfeited bail because of an inability to appear in court, occasioned by imprisonment in another county, from those in which the inability to appear was occasioned by imprisonment in another state. With respect to in-State imprisonment, we observed:
Bail will be exonerated where the performance of the condition of the bail contract, i.e., the appearance of the principal to answer to a criminal charge, is rendered impossible by an act of the law operative in the state where the obligation was assumed. The accepted rule is that a subsequent arrest and imprisonment in the same state, although in another county, will relieve a defendant from appearing at the time and place stipulated. The very same state government which has held defendant amenable to a charge in one county, has by law taken jurisdiction or custody of him in another county.
[Id. at 204-05 (citations omitted).]
We stated in dictum that different reasoning applies if the defendant is imprisoned out-of-state.
The mere fact that a defendant is imprisoned in another state is not sufficient to relieve a forfeiture in whole or in part. It is the same as if he had left the state and refused of his own volition to return. It has long been accepted that the duty of one state to surrender the principal of a bail to another state is not absolute and unqualified, and therefore, out-of-state incarceration of a defendant does not protect a surety. Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1873); Steelman v. Mattix, 38 N.J.L. 247 (Sup. Ct. 1876). [Erickson, supra, 154 N.J. Super. at 204 (citations partially omitted).]
However, twenty-six years later, we did not observe this distinction, nor did we comment on it, in our decision in a number of consolidated cases, some of which involved defendants, imprisoned out-of-state, who had not yet been returned to New Jersey. State v. Harmon, 361 N.J. Super. 250, 258, 261 (App. Div. 2003). Rather, we ordered remission in varying amounts, depending on the circumstances, or indicated that exoneration likely would have been proper if the surety had acted appropriately and promptly. Id. at 258. Although the issue of the treatment for bail purposes of ...