December 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIQ GHANNAM, DEFENDANT, AND SURETY NATIONAL CASUALTY CORP., SURETY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-00766-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2007
Before Judges Stern and C.S. Fisher.
Defendant Tariq Ghannam was indicted and charged with sexual assault. On July 8, 2004, bail was set at $75,000. A few days later, appellant Safety National Casualty Corp. (the surety) posted bond and defendant was released.
Defendant failed to appear on May 16, 2005, as required. On May 25, 2005, the court mailed a notice, which advised the surety that bail was forfeited and that a warrant for defendant's arrest would issue.
The record further reveals that, on July 7, 2005, a letter was sent to the surety advising that a forfeiture proceeding was scheduled for July 14, 2005. At that time, it appears that the matter was reviewed with the surety and it was confirmed that defendant remained a fugitive. Judgment, however, was not then entered since the seventy-five day period set forth in the forfeiture notice had not expired. R. 3:26-6(a), (c).
The matter again came before the trial court on October 5, 2005. Again it was confirmed that defendant remained at large; by this time, the seventy-five day period had expired. The surety's counsel was present in court and expressly stated on the record that he had nothing to offer in opposition. As a result, judgment was entered against the surety in the amount of $75,000. At no time had the surety indicated that it was under the belief that the bond had been discharged; the circumstances demonstrated that the surety well understood that the bond had not been discharged on any prior occasion.
The clerk of the court sent the surety a letter on November 15, 2005 regarding the outstanding judgment. The surety responded by letter on December 7, 2005, which indicated that the judgment would be satisfied by December 20, 2005 and requested that the surety's name not be removed from the Surety Bond Registry. The surety's counsel did not then mention or otherwise indicate that he or his client was under the impression that the bond had been discharged.
On December 20, 2005, the surety moved for the vacation of the forfeiture and exoneration from any further responsibility in this matter. The motion indicated that an entry on the court's PROMIS/GAVEL database reflected that the bond was discharged on May 16, 2005, but the motion was not accompanied by a sworn statement from anyone with personal knowledge that the surety was previously misled or even aware of the PROMIS/GAVEL error.
Many months later, the trial judge heard testimony from a clerk in the criminal division, whose responsibility was to make data entries into PROMIS/GAVEL. It appears from this testimony and the judge's findings that steps have been taken to rectify errors regarding the entry of mistaken notations about the discharge of bonds such as occurred here. The judge also found from the record that there was no evidence to suggest that the surety had been misled by the PROMIS/GAVEL error. As a result, the judge entered an order denying the surety's motion.
The surety appealed, arguing:
I. THE TRIAL COURT ERRED IN PENALIZING THE SURETY TO THE EXTENT OF THE FULL AMOUNT OF THE BOND IN THIS CASE WHEN THE STATE'S OWN ERROR INFLUENCED THE SURETY'S ACTIONS.
II. THE TRIAL COURT ERRED IN FAILING TO ARTICULATE ITS CONSIDERATION OF THE RELEVANT FACTORS ON THE RECORD.
We find no merit in these contentions.
The surety's claim of exoneration turns on the PROMIS/GAVEL error. The surety did not, however, submit any evidence to the trial judge to suggest it had been misled by this error. Indeed, as recounted above, the record amply demonstrates that the surety was notified -- and actually knew -- that the bond had not been discharged on May 16, 2005 as erroneously suggested by the PROMIS/GAVEL error.
Moreover, we must consider that defendant remains at large. As we have said, "[t]he purpose of bail is to secure the release of the accused from imprisonment pending disposition of the charge and to assure his presence in court when lawfully required in connection with that charge." State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000) (quoting State v. Rice, 137 N.J. Super. 593, 599 (Law Div. 1975), aff'd o.b., 148 N.J. Super. 145 (App. Div. 1977)). When seeking partial or total relief from a forfeiture, the surety "bears a heavy burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody, and in the absence of this showing, the trial court may determine that the forfeiture should stand." State v. Mercado, supra, 329 N.J. Super. at 271. The surety's insubstantial contention regarding the PROMIS/GAVEL error and its failure to return the defendant to custody permitted the trial judge's denial of the surety's motion. We find no abuse of discretion.
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