On appeal from the Superior Court of New Jersey, Law Division, Essex County, Nos. 04-05-1991-I; W2005-877-0714; 04-12-3864-I; 05-05-1248-I; 05-10-3314-I; 04-04-1419-I; 03-04-1239-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 27, 2008
Before Judges Cuff and Simonelli.
These are seven bail forfeiture appeals in which a corporate surety, American Reliable Insurance Co. (American), appeals from orders remitting a portion of the forfeited bail. In each case, defendant committed another crime after failing to appear while released on bail. American contends in each case that the remission was insufficient because the fact of commission of another offense and arrest while a fugitive is an improper factor in consideration of a motion for remission of forfeiture. We consolidate these appeals for purpose of opinion.
Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission are matters within the sound discretion of the trial judge. State v. Peace, 63 N.J. 127, 128 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007); State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000). This discretion is not unguided.
In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we observed that the decision to remit bail and the amount of the remission are equitable in nature, and the judge should consider at least eight identified factors. Those factors include the corporate or private status of the surety, the nature and extent of supervision by the surety while the defendant is released on bail, the surety's efforts to return the defendant to custody, the time between the failure to appear and the return to custody, the prejudice to the State attributable to the absence of the defendant, the expense incurred by the State due to the absence of the defendant, and reimbursement of expenses incurred by the State. Ibid. The Supreme Court implicitly approved these factors and further noted that "[t]here is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case." Peace, supra, 63 N.J. at 129. The commission of another offense while a fugitive has been recognized as "a significant element of intangible injury to the public." State v. de la Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003). Accord, State v. Ramirez, 378 N.J. Super. 355, 365 (App. Div. 2005); State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003); State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975).
The Administrative Office of the Courts promulgated Directive #13-03, which includes a set of guidelines (the Guidelines) for the handling of requests for remission from bail forfeiture.*fn1 The initial version of the Directive was issued in December 2003, and reflected the legislation, court rules and case law governing admission to bail, forfeiture of bail, and application for remission of forfeiture. The Guidelines were reissued in Directive #13-04 in November 2004 in the same form. The October 2007 supplement to Directive #13-04 reflects subsequent rulings. In each iteration of the bail remission Guidelines, the commission of an offense after failing to appear while released on bail is an important factor for consideration of whether a bail forfeiture should be remitted and, if so, in what amount.
American argues that the arrest of a defendant for a new offense while a fugitive is irrelevant to the remission of forfeiture provision. The surety contends that its obligation is limited to assuring that the defendant appears at court proceedings. The surety asserts that consideration of a defendant's conduct while released on bail transforms the surety from a guarantor of appearance at court proceedings to a guarantor of a defendant's behavior. The surety insists that it should not be chargeable for a defendant's conduct while released unless good behavior is a condition of bail and the surety specifically consents to this condition. We disagree.
As a preliminary matter, we reject any suggestion that the factors identified in the Guidelines, including the commission of a criminal offense while a fugitive, should not be considered relevant in the bail forfeiture remission context. As noted, commission of another offense after failing to appear while released on bail has been recognized as a relevant factor for some time. de la Hoya, supra, 359 N.J. Super. at 396; Fields, supra, 137 N.J. Super. at 81.
A bail bond is a contract between the surety and the State. Mercado, supra, 329 N.J. Super. at 271. Every non-appearance at a required court proceeding violates the covenant and causes an intangible harm to the public interest. Peace, supra, 63 N.J. at 129. The public has a right to expect that criminal charges will be resolved promptly. Commission of another criminal offense, after a defendant has failed to appear while released on bail, is a manifestation of the intangible element of harm to the public interest. de la Hoya, supra, 159 N.J. Super. at 200. A defendant has a constitutional right to bail. N.J. Const. art. I, ¶ 11; State v. Johnson, 61 N.J. 351, 355 (1972); State v. Fann, 239 N.J. Super. 507, 511 (Law Div. 1990). This right reflects the presumption of innocence, Johnson, supra, 61 N.J. at 355-56, 360; Fann, supra, 239 N.J. Super. at 512, and the right to the effective assistance of counsel that is enabled by ready consultation with an accused's attorney. Fann, supra, 239 N.J. Super. at 519-20. Commission of another criminal offense while released on bail can be rightly viewed as an abuse of these rights. See State v. Korecky, 169 N.J. 364, 373-74 (2001) (implying bail may be forfeited when defendant commits a new crime and violates a condition of bail).
We agree, however, that commission of another criminal offense while a fugitive is not a separate element or factor but an element of the intangible, but noteworthy, injury suffered by the public when a defendant deliberately fails to appear for a court appearance. In other words, commission of another offense cannot be double-counted. See State v. Ruccatano, 395 N.J. Super. 620, 626 (App. Div. 2007); State v. Toscano, 389 N.J. Super. 366, 372-73 n.2 and 3 (App. Div. 2007).
Turning to the Remission Schedules contained in the Guidelines in effect at the time these motions were decided and the Remission Schedules promulgated in October 2007, specifically Remission Schedule 3, we discern no double-counting of the additional offense factor. Rather, the Guidelines assume commission of another offense and proceed to suggest ranges of remission under those circumstances. On the other hand, a judge errs by double-counting the new offense when the judge refers to Remission Schedule 3 because the defendant has committed a new offense while a fugitive and cites the new offense as a factor in the remission determination.
Having rejected the argument that commission of a new offense while a fugitive is not a relevant factor, we turn to an evaluation of the seven cases before us. We start with certain basic principles. First, the surety bears the burden to prove that forfeiture is inequitable. Fields, supra, 137 N.J. Super. at 81; State v. Singletary, 170 N.J. Super. 454, 458 (Law Div. 1979). When the surety seeks partial or total remission of a forfeiture, the surety must "show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody." Mercado, supra, 329 N.J. Super. at 271. The State bears the simple burden to prove that the defendant did not appear in court. Fields, supra, 137 N.J. Super. at 81. The trial judge, in ...