August 17, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYSHAN COOPER, DEFENDANT,
AND ALLEGHENY CASUALTY CO., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 05-02-00239-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Yannotti and C.L. Miniman.
Defendant Allegheny Casualty Co. (Allegheny) appeals from a final order entered on October 18, 2006, denying Allegheny's motion to vacate a January 13, 2006, bail forfeiture and discharge a $35,000 bail bond following a bail motion hearing on September 15, 2006. However, the judge reduced the forfeiture by sixty percent to $14,000. This appeal followed and we reverse.
On December 21, 2004, Allegheny, as corporate surety, posted a $35,000 bond and executed a bail recognizance with defendant Tyshan Cooper (Cooper) to permit his release on bail in connection with drug-related offenses. Cooper was tried and on August 19, 2005, was found guilty of distribution of a controlled dangerous substance within 1000 feet of school property in violation of N.J.S.A. 2C:35-7. Cooper was not remanded into custody but, instead, bail was continued. Sentencing was scheduled for October 24, 2005, but Cooper failed to appear, a bench warrant was issued for his arrest, and bail was forfeited. Notice of the forfeiture was mailed to Allegheny on October 24, 2005. A Default Judgment on Forfeited Corporate Bail Bonds on the forfeited recognizance was entered on January 13, 2006.
On May 17, 2006, Allegheny moved to vacate the default judgment. In support of that application, Allegheny submitted a certification by Richard Sparano, the owner of AA Bail Bonds, agent for Allegheny, in which he certified as follows:
3. During the time the defendant was released on bail our office kept in close contact with him to assure his presence in Court. Immediately upon being released, he was required to telephone my office every week to insure he would appear in Court when required; the defendant did call as required.
4. Immediately upon notification of the bail forfeiture my office began an extensive search to locate him. Investigators were sent to his last known address, but he was not located. Friends and indemnitors of the defendant were contacted but they did not know where the defendant could be located.
6. [sic] Information was received that the defendant had fled to Gretna, Florida. My office contacted Deputy Sam Bruce of the Leon County Sheriff's Department, and prov[id]ed him with two addresses and a telephone number for the defendant. On April 5, 2006, the defendant was arrested at one of those locations by Deputy Bruce; attached is a copy of the arrest report. The defendant was extradited to Middlesex County.
The attached arrest report corroborated the facts to which Sparano certified and indicated that the information supplied by the bail bondsman "led to the arrest of Cooper on April 5, 2006," and was "directly responsible for the arrest."
In opposition to the motion, Sergeant David Jackson, Middlesex County Prosecutor's Office, stated in a certification that the Prosecutor's Office learned on April 20, 2006, that Cooper had been arrested in Florida. One of his co-workers "forwarded a formal detainer to the Gadsden County Jail and proceeded with approval of the extradition proceedings." The Prosecutor's Office made arrangements with Transcor to effect the extradition. Cooper was extradited on May 2, 2006, and remanded to the Middlesex County Adult Corrections Center. On June 1, 2006, Cooper was sentenced to serve six years in state prison. Jackson certified that numerous hours and days were spent to locate Cooper and remand him to Middlesex County, but he made no effort to quantify the time spent. He pointed out that the surety had not advised him of Cooper's arrest and stated that he learned of it from information on the N.C.I.C. network.
The judge placed her oral decision on the record on September 15, 2006, as follows:
Based upon consideration of the efforts both expended by the county as well as by the Surety in this case[,] and taking into consideration the fact that this is a corporate Surety, the fact that the Surety did as I indicated make reasonable efforts under the circumstances to effectuate the recapture of the defendant as [a] fugitive in this case, the length of time I calculate to be less than seven months and I think that based upon the time calculation, consideration of a six-month-period of time within which the defendant was a fugitive was reasonable under the circumstances.
Taking into consideration further the prejudice to the State because [of] the absence of the defendant, in this regard I don't find any demonstrable prejudice . . . , but apart from a consideration of the intangible injury, based upon a defendant's nonappearance at his sentencing[,] this defendant did appear at every prior court appearance, was present for the matter to be prosecuted to conviction, and, therefore, I do not find that that factor weighs heavily in this calculation, notwithstanding that the county's expenditure of efforts . . . which would appear to be extensive because they had to go through the entire extradition proceeding, weighing those factors in reference to the remission guidelines in this case, further considering the overarching policy considerations in determining forfeiture applications and that being consideration of the incentive for a Surety to continue to bond defendants so that the right to bail and one's liberty pretrial remains intact, I think that in this case a modification warrants a substantial remission[,] which by reference to the guidelines I calculate to be in the reverse, but would ordinarily be a 60 percent of the balance remitted, would require a forty percent payment on the judgment so forty percent of the total amount, forty percent of $35,000 would be . . . modified to fourteen thousand dollars in this case.
On appeal Allegheny argues, first, that the forfeiture was erroneous and not in the interests of justice because the guidelines promulgated by the Administrative Office of the Courts provide for a remission of ninety-five percent of the bond on facts like these. Allegheny also asserts that Cooper's bail should have been revoked when he was convicted of a crime that carried mandatory imprisonment. It argues that such a conviction is a material modification of the terms of the recognizance sufficient to exonerate the surety.
We do not find the decision to continue bail after Cooper was convicted to be a material change in the terms of the recognizance. Although such a material change was found in State v. Weissenburger, 189 N.J. Super. 172 (App. Div. 1983), the case is distinguishable from the facts here. The surety in Weissenburger was only aware that "defendant was required to remain in New Jersey and had undertaken to appear in court as required and to remain in New Jersey unless otherwise permitted by the court on notice to [the surety]." Id. at 176-77. However, the prosecutor and the defendant had an agreement that "authorized defendant to exercise his own discretion and judgment in determining whether the nature and circumstances of an emergent threat warranted his flight without his having to give prior notice either to the prosecutor or to the court." Id. at 177. We found that such an authorization was a material modification to the terms of the recognizance because it materially increased the surety's risk and determined that it required release of the surety.
We also find State v. Ceylan, 352 N.J. Super. 139 (App. Div.), certif. denied, 174 N.J. 545 (2002), distinguishable. Although it is true that Ceylan was released after conviction on a second-degree eluding offense on a post-verdict bond of $200,000, he was also a native of Turkey and was facing a charge of first-degree aggravated manslaughter. Id. at 141. The surety on the aggravated manslaughter charge moved for surrender and exoneration of its $500,000 bond prior to sentencing on the eluding conviction. Id. at 141-42. The motion was denied and the defendant then fled to Turkey. Id. at 142. We concluded that the trial judge's denial of the motion was a mistaken exercise of discretion. Ibid. We found the amount of the post-verdict bond on the eluding conviction signaled an increased risk of flight with defendant facing a presumptive seven-year sentence on the eluding conviction plus a presumptive term of twenty years on the manslaughter charge. Id. at 142-43. Because that was a material modification of the terms of the recognizance on the manslaughter charge, we concluded that the motion for surrender and exoneration should have been granted. Id. at 144. By contrast, here, we do not have a defendant who fled to another country, nor was Cooper facing a substantial additional sentence. The sentence he faced before and after conviction was the same.
Finally, State v. Clayton, 361 N.J. Super. 388 (App. Div. 2003), is also distinguishable. There, the defendant on bail became a fugitive and bail was forfeited, but the defendant was recaptured by the surety and returned to court. Id. at 393-94. Thereafter, the judge, without notice to the surety, set aside the forfeiture, reinstated the original bail, and released the defendant again. Id. at 394. The surety moved to vacate the forfeiture on the ground that the reinstatement was improper, but the motion was denied. Ibid. Ultimately, we ordered that the entire bail be returned to the surety on the ground that the reinstatement of the bail after defendant became a fugitive was a material modification in the undertaking of the surety. Id. at 395. We are satisfied on the facts before us that there was no material modification of Allegheny's undertaking when Cooper was released after trial.
We next turn to the issue of remission. R. 3:26-6(b) provides that a "court may . . . direct that an order of forfeiture or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice upon such conditions as it imposes." Allegheny bears the "burden to prove that it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986); State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000).
The decision to remit a forfeiture is committed to the sound discretion of the trial judge. State v. Peace, 63 N.J. 127, 129 (1973); Mercado, supra, 329 N.J. Super. at 270. We must provide an incentive to corporate sureties to take active and reasonable steps to recapture fugitives. State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). On the other hand, if remission is unreasonably withheld, corporate sureties might be less willing to post bail, impairing an accused's constitutional right to pretrial bail. Ibid.
In a trio of cases, we provided guidance to trial judges hearing forfeiture and remission applications. See State v. Dillard, 361 N.J. Super. 184 (App. Div. 2003); State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003); Clayton, supra, 361 N.J. Super. 388. In Clayton we held that where there has been significant supervision before the defendant's failure to appear, a relatively modest period of time elapsed with the defendant as a fugitive, significant efforts by the surety to recapture and success in doing so, and no effort by the State to locate the fugitive, the surety's out-of-pocket recapture expenses should be reimbursed in full, and ninety-five percent of the balance of the bail should be remitted. Clayton, supra, 361 N.J. Super. at 397.
In Dillard we held that where there has been no supervision before the defendant's failure to appear, a relatively short period of time passes with the defendant as a fugitive, a significant effort to recapture by the surety, and no effort by the State to recapture, one-hundred percent reimbursement of the surety's expenses, and roughly eighty percent of the balance of the bail should be remitted. Dillard, supra, 361 N.J. Super. at 188-89.
In Harmon the surety failed to supervise and monitor the defendant following his release on bail and the surety's efforts to recapture were perfunctory in that it did not hire a recovery agent or other investigator to locate and apprehend the defendant but, rather, relied exclusively on telephone inquiries of jails to locate defendant. Harmon, supra, 361 N.J. Super. at 256. Even when the State did not assert any expenditure in connection with recapture, we observed that the fact of recapture was still entitled to some weight where the time lapse between nonappearance and recapture was not inordinately long and no new crime had been committed while defendant was a fugitive. Id. at 256-57. Under those facts, we held that remission of twenty percent is appropriate. Id. at 257. We also held that when the defendant was on fugitive status for a significant period of time, such as two years, a remission of ten percent is appropriate. Id. at 260. Where twenty percent might normally be appropriate, but defendant was charged with committing a new offense while on fugitive status, we held that a ten-percent remission is appropriate. Ibid. Finally, when a defendant remains a fugitive at the time a remission motion is made, we held that no remission is appropriate. Id. at 255.
After publication of this trilogy of cases, the Administrative Office of the Courts promulgated Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004). It sets forth the factors to be weighed as follows:
1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant.
2. Whether the applicant is a commercial bondsman.
3. The surety's supervision of the defendant while he or she was released on bail.
4. The length of time the defendant is a fugitive.
5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture.
6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.
7. The defendant's commission of another crime while a fugitive.
8. The amount of the posted bail. 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 amount. [Ibid. (citations omitted).]
Directive #13-04 then provides remission guidelines for a variety of factual circumstances to be used as a starting point when determining the amount of any remission.
The undisputed facts here fall within the "substantial remission" category because "the surety provided close ongoing supervision while the defendant was out on bail and made immediate substantial efforts to recapture the defendant." In making her decision, the trial judge remarked that, by reference to the guidelines, sixty percent of the balance should be remitted and she modified the judgment "so forty percent of the total amount, forty percent of $35,000[,] would be . . . fourteen thousand dollars." However, where the defendant is at large six months or less, as here, the surety and the State under the guidelines are to be fully reimbursed for their costs, here none, and ninety-five percent of the balance of the bond is to be remitted to the surety. It appears as though the trial judge was mistakenly referring to the section of the guidelines that applies where the defendant committed a new crime while a fugitive, which calls for a sixty-percent remission on facts such as these. There is no record evidence that Cooper was charged with any new crime while he was a fugitive. As a consequence, the judgment is reversed and the matter is remanded to the trial judge for reconsideration in light of this opinion and the applicable Guidelines. We do not retain jurisdiction.
Reversed and remanded.
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