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State v. Alexander

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH ALEXANDER, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLIFTON BALDWIN, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAQUIA BETHEA, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN CAMPBELL, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDRE GRACEFIELD, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES MILLER, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN QUINERY, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.

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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 turn, is required to identify and weigh the factors that inform the decision to remit a forfeiture in whole or in part. Ramirez, supra, N.J. Super. at 370; de la Hoya, supra, 359 N.J. Super. at 200.

Each of the seven cases discussed in this opinion has similar characteristics. All were decided on the same day. All were decided before the issuance of the October 2007 supplement to Directive #13-04. Thus, the trial judge was without the benefit of the revision. In addition, the certifications submitted by the surety in support of its remission motions contain little, if any, information about the specific steps undertaken by the surety to supervise a particular defendant while released on bail and to locate and return the defendant to custody. In some cases, counsel for the surety submitted a certification that informed the court that the surety kept in touch with defendant and commenced an investigation to locate him as soon as it received notice of the bail forfeiture.*fn2 In addition, in most instances the trial judge did not provide the requisite analysis to allow this court to evaluate the exercise of his considerable discretion. On the other hand, we recognize that the absence of specific information from the surety regarding the individual defendant seriously hampered this effort.

In State v. Alexander, A-5373-05T1, American posted bail in the amount of $10,000 on February 28, 2004. Defendant failed to appear in court on April 8, 2005, and bail was forfeited. A notice of bail forfeiture was mailed to American on April 20, 2005. Defendant was arrested for a new crime on June 16, 2005, and was remanded to the county jail. A fugitive recovery service used by American learned on June 20, 2005, that defendant had been arrested on new charges and was confined to the county jail.

American filed a motion to vacate the forfeiture on or about July 1, 2005. In support of the motion, American filed a certification from an American agent who outlined the steps taken by the agency to supervise every person released on bail and the measures employed to locate and apprehend any fugitives. The agent certified that all of these measures were taken in this case. The attorney for the surety also submitted a certification that echoed the statements made by American's agent. The State submitted evidence of costs of $405 attendant to the apprehension of defendant.

Citing the relatively small amount of the bail, close supervision by the surety, the commission of a new offense, and the relatively short period of time (two months) that defendant was a fugitive, the judge determined that the surety was entitled to substantial remission of the forfeiture. He ordered a 60% remission of the bail forfeiture or payment of $4000 plus $405 in costs incurred by the State.

In State v. Baldwin, A-5374-05T1, American posted bail in the amount of $10,000. When defendant failed to appear for a court appearance, bail was forfeited on August 26, 2005, and American received notice of the forfeiture on or about September 8, 2005. Defendant was returned to custody on December 13, 2005, when he was arrested on a new criminal charge.

In support of its motion to vacate the forfeiture, American submitted the identical certifications as submitted in Alexander, supra. As in Alexander, American's fugitive recovery agents confirmed that defendant had been arrested and was confined at the county jail. The judge noted that defendant had been at large less than six months, was no longer a fugitive, and had committed a new crime. He granted a 60% remission of forfeiture and ordered American to pay $4000 plus $405 in costs incurred by the State.

In State v. Bethea, A-5375-05T1, American posted bail in the amount of $10,000. Bail was forfeited when defendant failed to appear in court on August 26, 2005. The clerk notified American of the forfeiture on August 29, 2005. Defendant was arrested for a disorderly persons offense on July 30, 2005, and again on September 1, 2005, and February 11, 2006, for other offenses at which time he was remanded to the county jail.

In support of its motion to vacate the forfeiture, American submitted the same generalized certifications detailing its supervision and location procedures. The fugitive recovery agent's certification, however, lacked verification of defendant's custody status. Citing solely the length of defendant's fugitive status, the judge ordered a substantial remission of 60% of the forfeiture and entered an order requiring American to pay $4000, plus $525 in costs incurred by the State.

In State v. Campbell, A-5376-05T1, American posted bail in the amount of $10,000. Defendant was arrested on July 11, 2005, on a new charge but was released. When he failed to appear in court, bail was forfeited on September 16, 2005. The clerk notified American of the forfeiture on September 21, 2005, and defendant was arrested and returned to custody on September 25, 2005. Defendant was a fugitive for nine days.

American submitted the same general certifications in support of its motion for vacation of the bail forfeiture. Focusing solely on the short time that defendant was a fugitive, the judge remitted 60% of the forfeiture and ordered American to pay $4000 plus $405 in costs.

In State v. Gracefield, A-5380-05T1, American posted bail in the amount of $50,000. Defendant failed to make a required court appearance and bail was forfeited on December 13, 2004. The clerk notified American of the forfeiture on December 28, 2004. Defendant was arrested on March 7, 2005, for the commission of a new crime.

American submitted the same general certifications. Here, the State conceded that the remission application should be treated as a partial remission. The judge proceeded to grant a 40% partial remission of forfeiture and ordered American to pay $30,000 plus $405 in costs.

In State v. Miller, A-5381-05T1, American posted bail in the amount of $20,000. Defendant failed to make a required court appearance and bail was forfeited on November 7, 2004. The clerk notified American of the forfeiture on March 8, 2005. Defendant was arrested following commission of a new crime on July 15, 2005, eight months after forfeiture of bail and four months after American received notice of defendant's fugitive status.

American submitted only the certification of its attorney. The judge found that American provided minimal supervision. Although American received notice of the bail forfeiture four months after the actual forfeiture, the judge noted that American would have known defendant's status, if American had adequately supervised defendant. The judge, therefore, held that American was entitled only to minimal remission and ordered American to pay $18,000 plus $405 in costs.

In State v. Quinery, A-5386-05T1, American posted bail in the amount of $25,000 on November 30, 2004. Defendant was arrested for a new crime on March 3, 2005. He failed to appear on March 28, 2005, for the original offense, and the clerk forwarded notice to American of the forfeiture on April 7, 2005. Defendant was arrested on a new crime on May 5, 2005.

American submitted the same general certifications as in other cases. The judge found this case similar to Alexander, supra, found that American was entitled to substantial remission of 60%, and ordered American to pay $10,000 plus $405 in costs.

Consideration of the seven appeals as a group reveals irreconcilable differences in degree of remission (minimal, partial or substantial), based on virtually identical records.

For example, in Alexander, supra, defendant was a fugitive for two months. The judge found that American was entitled to a substantial remission of bail forfeiture. In so concluding, the judge implicitly found that the surety provided close supervision while defendant was out on bail and made immediate substantial efforts to return defendant to custody. Yet, in Gracefield, supra, where defendant was a fugitive for just short of three months and the surety submitted the identical generic certifications, the judge concluded that American was entitled to only a partial remission. In other words, based on the same set of certifications submitted by the surety, the judge found that the surety provided minimal or no supervision while defendant was out on bail but engaged in immediate substantial efforts to recapture defendant or the surety provided close supervision while defendant was out on bail but did not engage in immediate substantial efforts to recapture defendant.

In addition to the observations previously noted about the lack of particularized certifications, lack of identification of the relevant factors and lack of factual findings to support each remission decision, a review of the seven cases also demonstrates a mechanical approach to the extent of the remission. In each case in which a defendant had been a fugitive six months or less and the judge determined that the surety was entitled to a substantial remission (Alexander, Baldwin, Bethea, Campbell, and Quinery), and the judge ordered a 60% remission. Thus, the judge drew no distinction between Bethea, supra, where defendant was a fugitive for six months and Campbell, supra, where defendant was a fugitive for nine days. In each case, the judge concluded that American was entitled to a substantial remission of bail forfeiture and set the extent of the remission at 60%.

The Guidelines contained in Directive #13-04 are available to guide the discretion reposed in the trial judge and reflect the accumulated case law. The Guidelines and the Remission Schedules are designed, however, to be the starting point in any determination to remit a forfeiture and the amount of any remission. Toscano, supra, 389 N.J. Super. at 371; State v. Harris, 382 N.J. Super. 67, 71 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); R. 3:26-6(b). Here, the guidelines were treated as the definitive resolution of the issue rather than as the starting point to increase or decrease the quantum of remission. The result is a similar degree of remission for a defendant who was a fugitive for six months and a defendant who was a fugitive for nine days. This approach also ignores that the recapture of the fugitive defendant and his ultimate appearance for the disposition of the charges constitute the essence of the surety's undertaking and that the fact of recapture must be accorded weight. Harmon, supra, 361 N.J. Super. at 256-57. This is particularly true when the time between non-appearance and recapture is short. Id. at 257.

In some forfeiture remission appeals, we have elected to exercise our original jurisdiction. State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003); Harmon, supra, 361 N.J. Super. at 255; State v. Dillard, 361 N.J. Super. 184, 187 (App. Div. 2003); de la Hoya, supra, 359 N.J. Super. at 196. The state of the records in these appeals does not allow us to apply the governing standards and policy concerns with any confidence that the relevant interests will be reasonably and justly addressed. See, e.g., State v. Wilson, 395 N.J. Super. 221, 230 (App. Div. 2007). We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.


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