On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0754-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Baxter.
This is a bail forfeiture case. Sun Surety Insurance Company appeals from a March 28, 2007 order of the trial court, vacating the forfeiture of all but $5,000 of a $35,000 bail the surety wrote for defendant Autumn Graves. We affirm.
Graves was arrested and charged with drug offenses including possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(a) and -5b(2). After the surety posted a bail bond on March 28, 2006, Graves was released. However, she was subsequently indicted in New York for selling drugs on July 28, 2006, and was consequently arrested and jailed in New York in September 2006. There is no dispute on this record that the surety failed to supervise Graves after her release from jail in New Jersey and therefore did not know that Graves was incarcerated in New York.
On September 15, 2006, Graves failed to appear for sentencing on the New Jersey charges. As a result, a Bergen County judge issued a bench warrant on September 15, 2006, indicating that defendant was "in Washington County Jail in Fort Edward, New York" and that the bench warrant was issued "as a detainer."
Graves pled guilty to the New York charges on November 15, 2006. On November 22, 2006, Graves consented to a waiver of extradition in New York, which was signed by Judge John S. Hall, Jr. in New York. Handwritten notes accompanying the waiver order indicate that Graves was released on her own recognizance (ROR) "to report to Bergen County Court by December 08, 2006." The notes further indicate that Graves' sentencing on the New York charges was postponed to December 13, 2006.*fn1
However, Graves failed to return to New Jersey for sentencing. Again, because the surety was not supervising her, the surety was unaware of her release in New York. On or about December 20, 2006, a New Jersey judge issued an amended bench warrant and an order forfeiting the $35,000 bail. The court sent the surety a notice of bail forfeiture dated December 20, 2006. Graves was sentenced in New York on December 20, 2006, although a Statement of Conviction was not issued until February 28, 2007.
Meanwhile, the surety did not ascertain Graves' location until February 6, 2007, at which point it filed a motion to vacate the forfeiture. Apparently the surety located Graves through a computer search of records of the New York Department of Correctional Services. The surety's motion was supported only by a certification of its attorney attesting that the surety had "confirmed the whereabouts of the defendant." There was no certification from any employee of the surety attesting to any efforts by the surety to supervise Graves or to locate her any earlier than February 6, 2007.
In deciding the surety's motion, the motion judge determined that $5000 of the bail should be forfeited, because "there was a period of time [when Graves] was out [of jail] from November 22nd to December 20 when she was supposed to report here but she didn't." Therefore, there was a window of opportunity in which the surety could have produced the defendant, had the surety been properly supervising her. The judge did not accept the surety's argument that Graves' failure to appear in New Jersey was not the surety's fault, because the New York court should have ordered that Graves be transported to New Jersey and turned over to New Jersey law enforcement officers, instead of releasing her on her own recognizance.
On this appeal, the surety raises the following points for our consideration:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DECLINED TO FOLLOW THE REMITTITUR GUIDELINES ...