October 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NICHOLAS HARVEY, DEFENDANT, AND SAFETY NATIONAL CASUALTY CORP. (SURETY), DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS GRAZIANO, DEFENDANT, AND SAFETY NATIONAL CASUALTY CORP. (SURETY), DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 00-02-00127 and 04-06-00965.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 3, 2007
Before Judges Payne and Messano.
We consider in one opinion these two appeals which were argued back-to-back and involve the same parties and common issues of law. In each case, Safety National Casualty Corporation (Safety) posted bail bonds for the respective defendants and contends that the motion judge erred in denying remission of the full bond amounts, or, alternatively, erred as to the amount of partial remissions she did order. Safety also contends the judge failed to fully articulate the weighing process employed in determining the amount of the remissions.
We recite separately the facts and procedural history of each case as gleaned from the motion record.
State v. Nicholas Harvey (A-000784-06)
On August 8, 2005, after defendant Nicholas Harvey (Harvey) failed to appear in court for sentencing, the judge issued a bench warrant for his arrest, set a new bail for his release, and forfeited Safety's $20,000 bail bond. Notice of bail forfeiture was received by Safety on August 18, 2005, but it submitted no written objections to the court. On October 27, 2005, default judgment was entered against defendant and Safety and in favor of the State and Middlesex County pursuant to R. 3:26-6(c).
During the months of November and December 2005, Safety's agents made various efforts to locate Harvey, all of which proved unsuccessful. These efforts included contacting the Jamesburg Police Department and the Middlesex County Prosecutor's Office (MCPO), interviewing defendant's relatives, and conducting surveillance of the defendant's last known address. Safety's recovery agent, Antonio Fazzolani, also spoke with a contact in North Dakota after receiving a tip from the MCPO on December 12, 2005, that defendant was in that state.
On January 26, 2006, the MCPO, utilizing the NCIC database, learned of Harvey's arrest by North Dakota's Grand Forks Police Department and lodged a detainer. On February 6, 2006, Transcor, an entity contracted by the State to conduct the extradition, transported defendant to New Jersey. Shortly thereafter, Safety verified that defendant was in custody at the Middlesex County Jail.
On March 10, 2006, Safety moved to stay the entry and execution of the judgment, to vacate the forfeiture, and to discharge the bond. On September 7, 2006, the judge heard arguments on the motion and issued an order dated September 19, 2006, forfeiting eighty percent of the bond, a total of $16,000.
State v. Thomas Graziano (A-000813-06)
On May 20, 2004, Safety posted its bond in the amount of $100,000 on behalf of defendant Thomas Graziano (Graziano). On June 3, 2005, after failing to appear in court for sentencing, Graziano's bail was forfeited and a bench warrant issued for his arrest. Default judgment was entered against defendant and Safety and in favor of the State and Middlesex County on August 18, 2005, pursuant to R. 3:26-6(c).
Upon receiving the file from Safety, private investigator Richard Padron began efforts to locate defendant. Padron discovered that the home at the defendant's address on file had been sold as early as February 2005, and Graziano was living in West Palm Beach, Florida, between January and May 2005. Safety also contacted co-signers of the surety bond, interviewed Graziano's ex-wife, and investigated several addresses associated with defendant, but failed to locate him.
Suspecting his ex-wife was shielding Graziano, Padron examined her phone records and discovered multiple calls to a cell phone in Puerto Vallarta, Mexico, during the months of August and September 2005. Believing these were calls to defendant, Padron contacted Agent Douglas Davis of the Federal Bureau of Investigation with whom he had worked in the past. Davis agreed to assist in locating Graziano, however, before he could begin working officially on the case, he required the MCPO to transfer its file to the FBI.
This apparently never occurred. During December 2005 and January 2006, Padron made repeated attempts to contact the assistant prosecutor handling the case and seek his assistance. Despite the MCPO's inaction, however, Davis contacted Padron on February 10, 2006, and informed him that he had obtained defendant's address in Mexico. He offered to apprehend Graziano if supplied with a copy of the bench warrant.
Padron eventually received a copy of the warrant and faxed it to Davis. He also arranged for one of his private investigators to fly to Puerto Vallarta on February 11, 2006, and meet Davis. Graziano was apprehended, escorted back to New Jersey, turned over to United States Customs Service agents, held overnight, and subsequently transported to the Middlesex County jail.*fn1
On March 6, 2006, Safety filed its motion to stay the entry of and execution of the judgment, to vacate the forfeiture, and to discharge the bond. On September 7, 2006, the motion judge heard oral arguments and issued an order dated September 19, 2006, forfeiting twenty percent of the bond, $20,000.
In both cases, Safety contends that the motion judge erred in fixing the amount of remission and failed to adequately state the reasons for her determinations. Among the various arguments it makes in Harvey's case, Safety contends that the judge mistakenly exercised her discretion and utilized the wrong guideline among those contained in Directive # 13-04: Revisions to Forms and Procedures Governing Bail and Bail Forfeitures, attachment F (2004)("the Guidelines"). In Graziano's case, Safety contends that its efforts were so significant, and the State's efforts so minimal, that the judge's decision to remit only eighty percent of its bond was a mistaken exercise of her discretion.
After consideration of these arguments in light of the record and applicable legal standards, we reverse the order under review in State v. Nathaniel Harvey, A-000784-06, and remand that matter to the motion judge for further proceedings consistent with this opinion. In State v. Thomas Graziano, A-000813-06, we affirm the order under review.
In reviewing the motion judge's decisions to partially remit Safety's bonds, we begin by noting that although the decisions to remit and the amount of the remission lie within the judge's sound discretion, State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003), she must exercise that authority in the public interest based upon equitable principles and in consideration of the Guidelines. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007).
Developed with full consideration of the public interest factors recognized in prior case law, the Guidelines were promulgated by the Administrative Office of the Courts on November 17, 2004, and were endorsed by us in State v. Ramirez, 378 N.J. Super. 355 (App. Div. 2005). They provide a starting point for determining any remission amount. State v. Harris, 382 N.J. Super. 67, 71 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006). Whether any remission should be increased or decreased from that suggested by the Guidelines depends on the particular facts of the case and the balancing of factors weighed in accordance with policy concerns. State v. Ruccatano, 388 N.J. Super. 620, 627 (App. Div. 2006).
Because of the discretionary nature of the Guidelines, motion judges are exhorted to "make a more comprehensive record, including an explanation of what additional factors were considered." Ramirez, supra, 378 N.J. Super. at 370. While there is no formula applicable to all cases, it is incumbent upon the judge to not only take into account the relevant factors, but to explain how she weighed them. de la Hoya, supra, 359 N.J. Super. at 200; see also Toscano, supra, 389 N.J. Super. at 376 (holding that as part of its application of the Guidelines, the court is obligated to give reasons for its determination based on the balance of the equities under the circumstances of each case). It is not enough for the judge to recite the relevant factors, Toscano, supra, 389 N.J. Super. 366, or reach "naked conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).
With respect to the judge's factual findings that support application of a particular guideline and any deviation therefrom, the scope of our review is limited. We will typically leave those findings undisturbed whenever they are "supported by adequate, substantial and credible evidence."
Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)(quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)).
The Guidelines are comprised of three separate schedules whose proper application is dependent upon a series of variables: whether the defendant is a fugitive when the remission motion is made; the length of the defendant's status as a fugitive; whether the defendant engaged in new criminal conduct while at-large; and the extent of the surety's efforts in supervision and apprehension of the defendant.
The extent of those efforts determine in a general sense whether the remission amount should be minimal, partial, or substantial. Minimal remission is available for a surety which provided "minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture." Directive # 13-04: Revisions to Forms and Procedures Governing Bail and Bail Forfeitures, attachment F (2004). If a surety provided either "close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture" or "provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant" partial remission is available. Ibid. Substantial remission is reserved for instances where a surety provided "close ongoing supervision" and "made immediate substantial efforts to recapture the defendant." Ibid.
In Harvey's case, the State argued, and the motion judge agreed, that Safety provided "minimal or no supervision;" indeed, Safety failed to provide any evidence to the contrary when it argued for remission. Although the judge did not explicitly identify the application of a particular guideline, she agreed with the State's recommendation that a partial remission of between ten to forty percent was appropriate.
Contrary to Safety's contention, our review of the record indicates that the motion judge adequately provided an articulation of her factual findings, her consideration and weighing of the Guidelines' factors governing remission, and the reasons for her decision to remit only twenty percent of the bond.
The judge found that Safety did not fulfill its primary obligation of securing defendant's presence at the proceedings. She also noted: "[t]here was no demonstration of supervision or monitoring" while defendant was out on bail - factor three; that time elapsed after defendant's disappearance until his remand back to New Jersey - factor four; the extent of the efforts undertaken, largely by the State, to locate defendant and the intangible public injury caused by defendant's nonappearance -factors five and six; and defendant's commission of a new crime while out on bail - factor seven.
It is clear, however, that contrary to the judge's determination, Harvey was not at large for more than six months. The MCPO located Harvey on January 26, 2006, through the use of the NCIC database. As we noted in State v. Wilson, 395 N.J. Super. 221, 227 (App. Div. 2007), given the advances in technology and the availability of the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15, that date, less than six months after he absconded, marked the end of Harvey's fugitive status.
Therefore, the judge's "starting point" when considering the amount of partial remission should have been forty percent, reflecting defendant's less than six-month period as a fugitive, not the range between ten and forty percent, appropriate for those defendants who remain at large for between six and forty-eight months. We therefore are compelled to remand the matter to the motion judge for consideration of the various factors utilizing the appropriate Guideline.
In Graziano's case, however, we reach a different conclusion. The judge made findings and weighed them with specific reference to the Guidelines' enumerated factors, noting: "[t]here was no demonstration of supervision or monitoring" while defendant was out on bail - factor one; "[t]he surety did engage in substantial, immediate efforts to attempt the recapture of this defendant" - factor three; the time lapse after defendant's disappearance - factor four; and, "the intangible injury" to the public caused by defendant's nonappearance - factor six. The judge also considered factor seven, "defendant's commission of another crime while a fugitive." However, the record fails to reveal that defendant did commit a crime while he was a fugitive, and, at oral argument we were advised that neither counsel believed he had. The judge determined that Safety should pay twenty percent of the bond.*fn2
Safety concedes the award was "generous," but argues that the forfeiture amount was inequitable because of the State's failure to articulate actual expenses incurred, because the State's inaction prejudiced Safety's efforts, and because those efforts were extraordinary and tantamount to Safety's own extradition of Graziano without the State's assistance.
We noted in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), some of the relevant factors in evaluating forfeiture and remission amounts include: 1) the prejudice to the State and the expenses incurred by it as a result of the fugitive's non-appearance, recapture, and enforcement of the forfeiture; and 2) whether reimbursement of the State's expenses will adequately satisfy the interests of justice. However, we have also noted the primary focus should be on the surety's efforts to secure the defendant's return, rather than upon the State's expenses incurred by the defendant's failure to appear or the prejudice to the State's case caused by defendant's absence. State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000). Thus, it is Safety, not the State, that "bears a heavy burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody . . . ." Ibid.
Moreover, "where a defendant deliberately fails to make an appearance in a criminal case," it has long been recognized that "an intangible element of injury to the public interest" will result. State v. Peace, 63 N.J. 127, 129 (1973)(noting that the intangible injury to the public interest as a result of a defendant's deliberate failure to appear in a criminal case is unquantifiable.) While Safety exerted significant efforts to recapture Graziano, it is clear that the State suffered expense and injury caused by defendant's non-appearance and subsequent fugitive status, and the motion judge found that to be so.
Here, too, the motion judge did not explicitly state whether the partial or substantial remission guidelines were appropriate; however, based upon her finding that Safety did little to supervise Graziano while on bail, and that it engaged in substantial efforts to recapture him, Safety was entitled to only a partial remission. Although she found defendant had committed a new offense, as we noted above, there was no proof that he in fact had. Thus, under the proper section of the Guidelines, Safety was entitled to a remission of between twenty and seventy-five percent of the bond amount.
The range provided by the Guidelines is exceedingly wide. Nevertheless, the actual award ordered by the judge exceeded the upper-most limit of the Guidelines, implicitly recognizing Safety's extraordinary efforts to recapture Graziano. Under these circumstances, we can find no mistaken exercise of the judge's discretion.
The order under review in A-000784-06 is reversed and remanded to the motion judge for further proceedings consistent with this opinion; we do not retain jurisdiction. The order under review in A-000813-06 is affirmed.