December 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL RIDGEWAY, DEFENDANT, AND ALLEGHENY CASUALTY COMPANY, (SURETY), DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-11-0107.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2007
Before Judges Gilroy and Baxter.
The surety, defendant Allegheny Casualty Company (Allegheny), appeals from a March 1, 2007 order that denied its motion to vacate a July 17, 2006 order of bail forfeiture. Bail forfeiture was ordered when defendant Michael Ridgeway failed to appear at a court-ordered evaluation at the Adult Diagnostic Treatment Center at Avenel (Avenel). We affirm in part, reverse in part and remand.
Allegheny is a corporate entity authorized to underwrite bail bonds that are issued in the State of New Jersey. On April 20, 2006, Allegheny posted a bail bond in the amount of $50,000 on Ridgeway's behalf, thereby enabling Ridgeway to be released on bail pending trial. Defendant had entered a plea of guilty to a sex offense that required him to undergo evaluation at Avenel, pursuant to N.J.S.A. 2C:47-1, to determine whether he was a compulsive and repetitive sex offender.
At the time Ridgeway entered his guilty plea, the court ordered him to appear at Avenel for the evaluation, but Ridgeway failed to appear. Consequently, on July 17, 2006, the court entered an order that revoked and forfeited the $50,000 bail that Allegheny had posted. The court also issued a warrant for Ridgeway's arrest. Four days later, on July 21, 2006, Ridgeway was apprehended on the warrant and remanded to the Cumberland County jail.
On December 8, 2006, Allegheny filed a motion to vacate the bail forfeiture. In support of its motion, Allegheny presented the certification of Richard Sparano, the owner of AA Bail Bonds, an agent for Allegheny. Sparano certified that after Ridgeway was released on bail, his office "kept in close contact with [Ridgeway] to assure his presence in court. Immediately upon being released, he was required to report to our office to receive instructions regarding his reporting requirements. He did report as required." Sparano also certified that: Ridgeway thereafter "contacted our office every week to insure he would appear in court when required"; and Sparano's office contacted Ridgeway's family to ensure that he would appear in court. Sparano noted that by the time his office received the July 17, 2006 notice that the bail had been forfeited, Ridgeway had already been remanded to the Cumberland County jail. The State filed no opposing certification.
Allegheny argued in the Law Division that an Avenel evaluation is not a court event for which bail should be forfeited if a defendant fails to appear. Allegheny also argued that unlike the court dates that are issued for arraignment/status conferences and pretrial conferences under Rule 3:9-1, where a surety can contact the Criminal Division Manager's Office (CDMO) and easily ascertain the next court date, here defendant scheduled the appointment directly with the Avenel facility, thereby depriving the surety of any opportunity to contact the CDMO and learn the relevant date.
The motion judge rejected both arguments. Although the judge agreed with Allegheny's contention that an Avenel appointment is not a court event "where the defendant appears in front of a judge," he held that it is nonetheless a "court event" that is "part and parcel of the sentencing process." The judge reasoned that because a court cannot sentence a defendant on sex offenses that fall within the purview of N.J.S.A. 2C:47-1 unless that defendant has undergone the Avenel evaluation, the evaluation is as much a court event as the proceedings that are specified in Rule 3:9-1.
The judge also rejected Allegheny's argument that it had no opportunity to learn of the scheduled date because Ridgeway himself scheduled the appointment with Avenel. The judge explained that, contrary to Allegheny's assertions, it is not the defendant who contacts Avenel and makes the appointment. Rather, the CDMO contacts Avenel to obtain an appointment date. The defendant is then ordered to appear on that date.
After rejecting Allegheny's argument that Ridgeway's failure to report to Avenel for the assessment could not justify bail forfeiture, the judge analyzed whether Allegheny was entitled to the return of any portion of the bail it had posted. The judge observed that the surety's efforts to recapture Ridgeway after he failed to appear at Avenel were immaterial because Ridgeway had already been taken into custody by the time Allegheny learned of Ridgeway's non-appearance. The judge also determined that the prejudice to the State by reason of defendant's failure to appear was virtually non-existent because Ridgeway was a fugitive for only a matter of days. Additionally, the State had not presented any proof of expenses that it had incurred in recapturing Ridgeway.
Despite these factors, the judge ordered that only seventy-five percent of the bail Allegheny posted be remitted. The judge concluded that the remaining twenty-five percent, or $12,500, should be forfeited because Sparano's certification failed to specify the dates on which AA Bail Bonds called Ridgeway or his family, or the dates when Ridgeway reported to the office of AA Bail Bonds. Because Allegheny provided "no dates" and "no logs of calls," the judge concluded that Allegheny had furnished proof of only "minimal supervision."
Consequently, the judge applied the portion of Administrative Directive #13-04 (Directive) that specifies the remission guidelines applicable where "defendant is not a fugitive when remission motion is made, defendant did not commit a new crime while a fugitive . . . [and] where the surety provided minimal or no supervision while the defendant was out on bail."*fn1 Pursuant to the terms of that guideline, a surety is entitled to the return of seventy-five percent of the bail, provided the defendant was at large for six months or less. Accordingly, the judge ordered a seventy-five percent remission. Allegheny appealed.
We turn first to Allegheny's argument that an Avenel interview is not a required court event for which bail can be forfeited if a defendant fails to appear. We agree with the State's argument and the judge's conclusion that an Avenel interview is "part and parcel" of criminal proceedings, for which a surety can be held responsible by way of bail forfeiture if a defendant fails to appear. We agree with the State's argument that no sex offender whose crime comes within the purview of N.J.S.A. 2C:47-1 can be sentenced unless an Avenel evaluation has been completed. Consequently, the provisions of Rule 3:26-4(a) are triggered. Specifically, that Rule provides, in relevant part, that a bail bond "shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." R. 3:26-4(a) (emphasis added). Unquestionably, in light of the provisions of N.J.S.A. 2C:47-1, an Avenel evaluation is a "stage of the proceedings" because unless the required Avenel evaluation is completed, a judge is prohibited from proceeding to sentence a defendant. Accordingly, the motion judge correctly rejected Allegheny's argument to the contrary.
We also agree with the motion judge's rejection of Allegheny's argument that the date of Ridgeway's appointment at Avenel was not a "fixed date" that Allegheny could have learned by calling the CDMO. As the record demonstrates, the Avenel date was established by the CDMO, was embodied in a court order, and could have been learned by Allegheny or its agent AA Bail Bonds had either one contacted the CDMO.
We disagree, however, with the judge's conclusion that Allegheny's failure to provide the court with the specific dates upon which it supervised Ridgeway demonstrates that Allegheny provided only minimal supervision. The motion judge appears to have regarded the Sparano certification as a self-serving document unworthy of being believed. We conclude that the more prudent course would have been to provide a brief adjournment of the motion hearing to afford Allegheny the opportunity to provide more detailed information concerning its supervision of Ridgeway, rather than assume that the supervision Allegheny provided was minimal.
Accordingly, we affirm the judge's conclusion that Ridgeway's failure to appear for the Avenel interview should subject Allegheny to a partial forfeiture. We disagree, however, with the judge's conclusion that Allegheny's failure to provide documentation of its supervision efforts should lead to a twenty-five percent forfeiture. Accordingly, we remand to the trial court for a hearing, at which time Allegheny shall be entitled to present a supplemental certification. If Allegheny is unable to provide any additional information beyond that already provided in the December 8, 2006 Sparano certification, the judge is entitled to again order a twenty-five percent forfeiture. If, in contrast, Allegheny provides additional details of its supervision, the judge should reconsider the twenty-five percent forfeiture that was ordered on March 1, 2007.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.