January 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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" informs our discussion in the present matter:
Where the surety provided minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture the defendant, minimal remission is warranted subject to the weighing of the factors previously identified.
State is reimbursed its costs.
If time at large 6 months or less[,] 20% of the balance remitted[.]
If time at large between 6-48 months[,] 5% to 20% of the balance remitted[.]
If time at large over 48 months[,] 0% to 5% of the balance remitted[.]
Where the surety provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant; or Where the surety provided close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture the defendant; Partial remission is warranted subject to the weighing of the factors previously identified.
State is reimbursed for its costs. If time at large 6 months or less[,] 75% of the balance remitted[.]
If time at large between 6-48 months[,] 20% to 75% of the balance remitted[.]
If time at large over 48 months[,] 0% to 20% of the balance remitted[.]
Here, Safety sought a partial remission based upon its "immediate substantial" efforts to recapture Russell. The court however was not persuaded that Safety's proofs demonstrated substantial efforts to recapture defendant. We agree.
The only evidence presented to the court to support Safety's contention that it engaged in "immediate substantial" efforts to recapture Russell is set forth in the affidavit of its supervising agent. The affidavit, however, failed to comply with Rule 1:6-6, which requires that affidavits be based upon personal knowledge. See, e.g. Wang v. Allstate Ins. Co., 125 N.J. 2, 16 (1991). The relevant portions of the affidavit submitted in support of Safety's motion can best be characterized as omitting critical information and otherwise containing facts not based upon personal knowledge. For example, notably absent from the affidavit is who assigned the matter to a recovery agent and the date of that assignment. It is therefore unclear whether the matter was assigned on September 6 or October 22 or some date in between. If the former, then the affiant failed to detail the specific efforts undertaken, starting at that point, to recapture Russell, and if the latter or some other date in between, the affiant failed to explain the delay in the assignment as well as the specific recapture efforts. Nor does the affiant explain how the recovery agent "learned" that Russell was arrested on October 20 and was being held at the Cumberland County Jail. While the court, during the motion hearing, refers to "a call" to the Cumberland County Jail as "the only proofs . . . of any attempt [by Safety] to recover [Russell,]" and Safety's counsel responds, "Right[,]" the affiant does not state that he or his agent ever made a call, but only that the recovery agent "learned" that Russell was "arrested" and "incarcerated[.]" In other words, it is unclear whether the recovery agent discovered Russell's whereabouts because of his immediate substantial efforts to do so or, serendipitously, through no effort at all. See Mercado, supra, 329 N.J. Super. at 273 (finding that the surety "failed to present any evidence that its agents undertook active efforts to locate and apprehend any of the defendants, and it [was] undisputed that its agents played no part in actually returning the defendants to custody.") (emphasis added).
Consequently, despite Safety's argument in its brief that it "engaged in immediate substantial efforts to locate the fugitive but [was] unable to do so until the fugitive recovery agent confirmed that [Russell] was incarcerated in October 2006," there is no evidence in the record that Safety's agent undertook "active efforts" to recapture Russell. Ibid. The facts here are distinguishable from those we recently considered in State v. Ruccatano, 388 N.J. Super. 620 (App. Div. 2006). There, although we concluded that the surety's agent found the fugitive, "albeit without much effort," the record demonstrated that the effort was at least an "active effort." Id. at 628. Specifically, the affidavit submitted in support of the surety's remission motion revealed that the surety's agent went to the defendant's home and learned from the defendant's father that defendant was incarcerated and the agent subsequently confirmed this information by calling the jail. Ruccatano, supra, 388 N.J. Super. at 623. Here, Safety's affiant, like the surety in Mercado, supra, "failed to show that it made any active efforts to locate, apprehend and return [Russell] to court." Mercado, supra, 329 N.J. Super. at 272 (emphasis added).
Moreover, the record demonstrates the court addressed the factors that we previously identified in Hyers, supra, 122 N.J. Super. at 180 and that were implicitly approved in Peace, supra, 63 N.J. at 129, as appropriate factors a court may consider before it reaches the equitable determination of whether and to what extent remittitur is warranted in any given case. The court considered the fact that: (1) Safety is a commercial entity that engaged in no supervision of Russell while he was out on bail; (2) undertook minimal efforts to recapture Russell; and, (3) Russell was at large for approximately forty-two days, which is the lower end of Attachment F's minimal or partial remission guidelines for fugitives at large less than six months. Finally, the court considered the fact that the State presented no proof of actual costs, leading it to conclude that the State's costs were nominal. After considering these factors, the court determined that a minimal remission of twenty percent was warranted.
It is apparent from the record that the court's decision was substantially influenced by the absence of any evidence of the specific efforts Safety undertook to recapture Russell, which absence demonstrated, in the court's view, that those efforts were not substantial. The court, in its colloquy with Safety's counsel, observed,
THE COURT: You're comparing apples and oranges, this and [Toscano], from the standpoint that the Court acknowledges in [Toscano] there was nothing else the surety could do. Which is why in citing [Ruccatano], that it announced for the first time that courts should not penalize sureties where their client was recaptured prior to the surety getting notice.
In this case, the surety had notice before recovery. And I'll grant that they made a call but that's all they did.
[DEFENSE COUNSEL]: If they couldn't find the Defendant and then their effort was to, before going out and again looking for him, called the jail and he's there, not more could be done.
THE COURT: But they made the call, what, 30 days after the notice?
[DEFENSE COUNSEL]: That's when they confirmed that he was in the jail.
THE COURT: Okay. So . . . there's no recitation of anything that was done by agents for the surety in that time frame, other than sending it out and opening a file; is there?
[DEFENSE COUNSEL]: Not that I have in my file, Your Honor.
To summarize, Safety, based upon the proofs it presented, sought a partial rather than a minimal remission of the bond posted. The affidavit of Safety's supervising agent fell woefully short of demonstrating that Safety "engage[d] in immediate substantial efforts to recapture the defendant[,]" Directive #13-04, supra, at Attachment F, Partial Remission, thereby entitling it to a partial remission. As we stated in Mercado, supra, [I]f a surety seeks a partial or total remission of a forfeiture of bail, it 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. [329 N.J. Super. at 271.]
We find the court did not abuse its discretion in according greater weight to the absence of evidence of "immediate substantial" recovery efforts than, as Safety appears to urge, the fact that Russell was at large less than six months and there was no proof of the State's actual costs. On the record before it, the trial court properly found that Safety did not satisfy its heavy burden of demonstrating that it took "active and reasonable steps to recapture" Russell. Toscano, supra, 389 N.J. Super. at 371 (quoting Directive #13-04, supra, Attachment F).