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State v. Russell

January 3, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HOWARD RUSSELL, DEFENDANT. SAFETY NATIONAL CASUALTY CORP., SURETY-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-07-0683.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2007

Before Judges Payne and Sapp-Peterson.

Safety National Casualty Corporation (Safety) appeals from the order entered by the Law Division forfeiting $32,000 of the $40,000 bond posted on behalf of defendant Howard Russell. Safety contends the court failed to properly consider the remittitur guidelines contained in Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures (2004)*fn1 (Directive), or weigh the factors relevant to remission. We disagree and affirm.

The facts are not in dispute. Safety, a commercial surety, posted bond on behalf of Russell in December 2005. Thereafter, beyond two written inquiries to the court in January and March 2006 requesting that the court notify Safety of the next scheduled court date, there is no evidence that Safety at any time undertook steps to monitor Russell while he was admitted to bail. Russell failed to appear for a July 25, 2006 court proceeding. The court issued a warrant for his arrest and forfeited the bond posted. The court did not notify Safety of Russell's default or the bond forfeiture until September 6, 2006. On October 22, 2006, Safety learned that Russell was taken into custody on October 20, 2006, and was being held at the Cumberland County Jail. There was no evidence that Russell had committed a new offense while a fugitive. Safety filed a Motion to Stay the Entry of Judgment and/or Execution of the Judgment and to Vacate the Forfeiture and/or Judgment, Exonerate the Surety and Discharge the Bond on the ground that Russell was incarcerated. Safety subsequently filed a supplemental affidavit from Rafael Agliata, Executive Vice President of Blaze Bail Bonds and a supervising agent for Safety, which stated:

10. It appears that [on] July 25, 2006[,] the defendant failed to appear in court before the Honorable Timothy Farrell, J.S.C. and the bond posted herein was forfeited by the Court. Notice of this forfeiture was not generated by the Criminal Division Manager's Office until September 6, 2006. []

11. Upon receipt of this [notice, the] matter was assigned to [a recovery agent] to apprehend and surrender the defendant.

12. On October 22, 2006, [the agent] learned that the defendant was arrested on October 20, 2006 and found him incarcerated in the Cumberland County Jail. []

On the return date of the motion, Safety argued that the facts of the case "[fell] under the guidelines that are set forth and enumerated in State v. Toscano, [389 N.J. Super. 366 (App. Div. 2007).]" Safety conceded that "more could have or should have been done" to monitor Russell while out on bail but that it "did make immediate substantial efforts to recapture the Defendant, who was a fugitive for less than six months." (emphasis added). Referring to Directive #13-04, Safety requested a partial remission that included a ten percent reduction for the State's costs. In opposing the motion, the State argued that our decision in Toscano, supra, was factually distinguishable because unlike the surety in Toscano, supra, Safety had notice "of a month and a half before there was any major effort to do any recovery." The court agreed with the State and granted an $8000 partial remission.

Rule 3:26-6(b) provides that forfeiture of bail may be "set aside, in whole or in part, if its enforcement is not required in the interest of justice upon such conditions as [the court] imposes." A court's determination to remit all or a portion of bail forfeited is committed to the exercise of the court's sound discretion, but must be guided by the factors and policies that are relevant to the equitable exercise of its discretion, which include the public's interest and standards articulated by the courts. See State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003) (discussing the factors and citing State v. Peace, 63 N.J. 127, 129 (1973)); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003); State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000); and State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).

At the time of the motion judge's decision, the standards for remission of bail were contained in Attachment F of the Directive, "Remittur Guidelines (Superior and Municipal Courts),"*fn2 which we discussed fully and expressly endorsed in State v. Ramirez, 378 N.J. Super. 355, 366 (App. Div. 2005). As we recently observed in Toscano, "[t]he two policy concerns identified in [Attachment F] are [to] 'provid[e] an incentive to the surety to take active and reasonable steps to recapture' and [to] avoid[ ] unreasonable measures that would likely lead sureties to 'be overcautious' in posting future bail bonds." Toscano, supra, 389 N.J. Super. at 371 (quoting Directive #13-04, supra, Attachment F).

Attachment F, in its original form and as revised, lists factors that trial judges need to consider in the context of the policy considerations that must inform any bail remission determination. Ibid. They include whether the surety is a commercial bondsman, the status of the defendant at the time the remission motion is made, the surety's monitoring activities while the defendant is admitted to bail, and the surety's effort to recapture the defendant once notified that the defendant has failed to appear for a court-mandated proceeding. Ibid. In balancing the factors, judges are directed to focus primarily upon the surety's efforts at recapturing the fugitive. Ramirez, supra, 378 N.J. Super. at 365. Attachment F then outlines a recommended schedule for remission, which it now characterizes as, a broad set of guidelines that have been developed to provide judges with a starting point when determining whether to grant a remission for applications made either before or after judgment is enforced, and, if granted, the amount to remit. State v. Harris, 382 N.J. Super. 67, 72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); R. 3:26-6(b). Obviously, the judge should consider the particular facts in an individual case, along with subsequent case law to determine whether the amount to remit is increased or decreased. The motion judge should make a record, including an explanation of what factors were considered under these guidelines, and if none were considered, a statement of the ways that the surety failed to present a prima facie basis for relief. State v. Ramirez, 378 N.J. Super. at 370. The genesis for developing some of the guidelines was derived from Appellate Division decisions. State v. Harris, 382 N.J. Super. at 71; State v. Hawkins, 382 N.J. Super. at 465 n.6. Based on the particular facts of the case, the remission amount indicated by the schedules set forth below should be increased or decreased after balancing the factors that have been weighed in accordance with the policy concerns. State v. Toscano, 389 N.J. Super. at 371.

That portion of Attachment F captioned, "Where Defendant Is Not A Fugitive When Remission Motion is Made and Defendant Did Not Commit a New Crime While a Fugitive" ...


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