On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-04-593-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, Harco National Insurance Company (Harco), is the surety in Middlesex County for criminal defendant, James Hill, who was released from custody on a $50,000 surety bond posted by Harco on April 13, 2004. On May 14, 2004, Hill failed to appear at a scheduled court proceeding. A bench warrant was issued for Hill's arrest and bail was forfeited.
The forfeiture was then set aside, after Hill was arrested in Essex County and transferred to Middlesex County. Bail was reinstated with the consent of Harco. Hill was again released on bail on September 10, 2004.
Thereafter, Hill failed to appear in court on August 29, 2005. As a result, a bench warrant for Hill's arrest was issued and bail was again ordered forfeited. Harco was notified of the forfeiture by "Notice of Bail Forfeiture for Surety" dated August 30, 2005. Thereafter, judgment was entered for the $50,000 posted in bail.
On September 14, 2006, Harco filed a motion for an order vacating the bail forfeiture and discharging the bail posted by Harco. The certification of Harco in support of its motion to vacate was an attorney's certification. There was no first party certification by a person with actual knowledge of Harco's efforts to locate and keep in touch with Hill filed by Harco in support of its motion. After entertaining oral argument, on September 15, 2006, the court denied Harco's motion.
The court's oral opinion was memorialized in an order dated October 18, 2006. In addition to denying Harco's motion to vacate the bail forfeiture and discharge the surety bond, the order required Harco to pay the sum of $50,000, the amount of the underlying judgment by October 16, 2006, which amount was ordered to be distributed proportionally between the State and Middlesex County. Further, the judgment in the amount of $50,000 was to be vacated and the bond discharged of record upon the State's receipt of the full $50,000. If Harco failed to satisfy the judgment and until satisfaction was made, Harco was ordered removed from the bail registry and precluded from administering its bail bond business in the State.
Harco appeals the October 18, 2006, order denying its motion to vacate forfeiture and ordering discharge of the bond upon payment. On January 22, 2007, the trial court granted Harco's motion to post a supersedeas bond pending appeal. A superseadeas bond was posted January 30, 2007. We affirm the trial court's order.
Hill failed to appear in court on August 29, 2005 and a bench warrant was issued for his arrest. On October 18, 2005, defendant was discovered by the Middlesex County Prosecutor's Office to be imprisoned in the Erie County Prison in Buffalo, New York, where he was being detained on local charges. Based on this information, the Middlesex County Prosecutor's Office Fugitive Task Force (MCPO-FTF) contacted the Erie County Prison to confirm that Hill was still in its custody and forwarded the Middlesex County bench warrant as a detainer. At the time of Harco's motion, Hill was awaiting extradition from the Erie County Prison in Buffalo, New York to Middlesex County.*fn1
Harco contends the bail forfeiture should be set aside because the defendant has been incarcerated in another jurisdiction awaiting extradition to New Jersey. The law governing forfeiture and remission of bail is set forth in Rule 3:26-6. In State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003), we summarized the applicable provisions of the rule:
[Paragraph (a)] provides that upon the breach of a condition of bail, the court on its own motion shall declare a forfeiture, and absent an objection by the surety seeking to set the forfeiture aside, a judgment of forfeiture shall be entered within 75 days after the declaration of forfeiture. Paragraph (b) permits the court to "direct that a forfeiture be set aside if its enforcement is not required in the interest of justice upon such conditions as it imposes." And paragraph (c) requires the judgment of forfeiture to be entered following the prescribed 75 days if an objection has not ...