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State v. Cooper

August 17, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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