On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-05-00490-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Safety National Casualty Corporation (Safety), appeals from a November 17, 2006 order which remits $10,000 and forfeits $40,000 of a $50,000 bond posted by the surety for defendant Jason Vega. The date of the order, November 17, 2006, was the decision date of State v. Ruccatano, 388 N.J. Super. 620 (App. Div. 2006) and therefore was made without the benefit of that opinion as well as State v. Toscano, 389 N.J. Super. 366 (App. Div. 2007), decided less than two months later, on January 4, 2007. We reverse and remand.
Briefly, the facts are that on June 6, 2006, Vega and Safety entered into a bail bond contract for $50,000. The only meeting between Vega and Safety occurred when the agreement was signed, despite the provision which called for Vega to maintain regular contact. Safety engaged in no monitoring efforts. Vega failed to appear in court as required on July 24, 2006, at which time bail was forfeited and a bench warrant issued for his arrest. Unaware of Vega's failure to appear, on August 4, 2006, Safety wrote to the court inquiring about the next scheduled appearance. The forfeiture notice, dated August 3, 2006, was received by Safety on August 11, 2006. See R. 3:26-6(a). Upon receipt of the forfeiture notice, Safety assigned the bail forfeiture to a recovery agent. The record does not indicate either the date the assignment was made or what steps, if any, were taken by the recovery agent until September 20, 2006, when the recovery agent learned that Vega had been admitted to the Cumberland County Correctional Facility on the previous day. It is unclear from this record whether he surrendered voluntarily or was apprehended due to any efforts made by law enforcement authorities. Vega did not commit new crimes while a fugitive. Based on these facts, the forfeiture judge concluded the lack of supervision and absence of any effort to recapture warranted remission of only twenty percent, or $10,000 of the bond, to Safety.
As a result of Ruccatano, supra, 388 N.J. Super. 620, and Toscano, supra, 389 N.J. Super. 366, as well as other decisions made after 2004, the "Remittitur Guidelines" for bail were revised on October 9, 2007, by a supplement to Administrative Directive #13-04. Remittitur Guidelines, Oct. 9, 2007, supplement to Administrative Directive #13-04. The Remittitur Guidelines superseded Attachment F of Administrative Directive #13-04. Although at the time the decision under appeal was made, the forfeiture judge did not have the benefit of the opinions or, obviously, the revised Remittitur Guidelines, the principles enunciated in Ruccatano, supra, 388 N.J. Super. 620, and Toscano, supra, 389 N.J. Super. 366, were to at least some extent, common currency. Decisions as to remissions of bails are "'within the sound discretion'" of a forfeiture court. Toscano, supra, 389 N.J. Super. at 370 (quoting State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003)). In exercising its discretion, however, a court is bound to consider the Remittitur Guidelines, "which were developed to promote consistent application of the factors identified in our case law." Id. at 371 (citing State v. Harris, 382 N.J. Super. 67, 71 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006)). Bail forfeiture decisions have been calculated by consideration of essentially the same factors since the initial implementation of the Remittitur Guidelines. State v. Ramirez, 378 N.J. Super. 355, 364-69.
In his abbreviated weighing of the factors enumerated in the Remittitur Guidelines, the forfeiture judge determined that Vega was not presently a fugitive and did not commit any new crime while a fugitive. He then applied the minimal remission section as "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." Administrative Directive #13-04, Revisions to Forms and Procedures Governing Bail and Bail Forfeiture, (Remittitur Guidelines) Attachment F, at 3 (2004). Accordingly, the judge returned only twenty percent of the $50,000 bail to Safety as Vega had been at large six months or less. There is no indication in the record if costs were incurred by the State in the process of returning him to custody, or if he surrendered voluntarily, or was discovered in some other circumstance at no cost to the State.
In our view, Safety was entitled to consideration pursuant to the partial remission portion of the Remittitur Guidelines, "[w]here 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," and not the minimal remission section. Remittitur Guidelines, supra, Remission Schedule 2. The starting point for the calculation under that schedule, where a defendant is at large for less than six months, is seventy-five percent of the bail bond amount.*fn1
In the forfeiture judge's view, the "total lack of supervision" and "total lack of an effort to recapture" put the surety in the minimal remission range. "[T]he immediacy of the surety's efforts, [however] should ordinarily be measured from the time the surety is informed of the warrant/forfeiture . . . ." Ruccatano, supra, 388 N.J. Super. at 626. In this case, approximately a month lapsed between the court notice to the surety as to forfeiture and the confirmation of detention, from August 11, 2006 to September 20, 2006, virtually the exact length of time as in Toscano, supra, 389 N.J. Super. at 370. In that case, the failure to appear occurred October 1, 2004, the defendant was incarcerated October 17, 2004 on other charges, and a warrant for his failure to appear was executed on November 8, 2004. Id. at 369. On November 10, a notice was sent to the surety, whose recovery agent, on December 7, commenced efforts to recapture by calling the court and being advised the defendant was in custody. Id. at 369-70. The only difference between Toscano and this matter is that the one month delay occurred while this defendant was at large.
Nonetheless, as in Toscano, Safety's efforts must be characterized as "immediate," because the delay was relatively brief. Id. at 374-75. Certainly, the "intangible element of injury to the public" is present whenever a defendant continues to enjoy his liberty after having failed to make a scheduled court appearance. State v. Peace, 63 N.J. 127, 129 (1973). There can be no doubt that the immediacy both in Toscano, supra, 389 N.J. Super. at 374-75, and in this case could have been better. A month's delay in assigning a file to a recovery agent is not desirable. But a month's delay still falls within the meaning of "immediate." Id. at 374-75.
As to "substantial efforts to recapture," the only action that Safety could have taken was the call which confirmed that Vega was in custody. Remittitur Guidelines, supra, Remission Schedule 2. In other words, once the search is initiated, reasonably close in time to notification, where the only step that can be taken by the surety is a phone call, under both Ruccatano, supra, 388 N.J. Super. at 626, 628, and Toscano, supra, 389 N.J. Super. at 374-75, the surety is considered to have engaged in "immediate substantial efforts to recapture." Thus, the surety is entitled to partial, not minimal, remission pursuant to the Remittitur Guidelines. As in Toscano, supra, 389 N.J. Super. at 374, the phone call with the resulting discovery that an absconder is in custody, is "everything necessary under the circumstances." "When there is nothing to be done because the defendant surrendered or was recaptured before the surety had notice, doing nothing is 'reasonable.'" Id. at 375 (quoting Directive #13-04, supra, Attachment F).
The public policy which warrants this interpretation of "immediate substantial efforts to recapture" is clearly articulated in the Remittitur Guidelines as well as the cases; namely, that if remission is unreasonably withheld, corporate sureties would be less willing "to post bail, resulting in an impairment of an accused's constitutional right to pretrial bail." State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003); Remittitur Guidelines, supra, at 1. Sureties would be unwilling to post bonds if remissions were limited to the minimal amount set forth in Remission Schedule 2, "solely because their effort was not needed due to fortuity." Toscano, supra, 389 N.J. Super. at 375. Therefore, the surety did all that could be done in an "immediate substantial effort to recapture defendant," and is entitled to partial remission pursuant to Remission Schedule 2. The applicable partial remission guideline as to a defendant at large for six months or less is seventy-five percent remission, or $37,500.
Another essential equitable consideration that may have been overlooked by the forfeiture judge is the amount of the bail itself. In determining the amount of remission, "the court should take into account not only an appropriate percentage of the bail but also its quantum." de la Hoya, supra, 359 N.J. Super. at 199. In this case, to charge the surety $40,000 for a defendant whose whereabouts were unknown from July 24, 2006, to September 19, 2006, and who committed no new crimes while at large, is inequitable. Furthermore, the record does not disclose if any costs were incurred by the authorities in securing Vega's recapture. ...