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State v. Crosby

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DUANE CROSBY, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARMEN FLORES, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALONZO GOULBOURNE, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IZELLOR LANE, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD MCCOLLUM, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAIHEED MITCHELL, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRIS ORTIZ, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAQUAN TRUESDALE, DEFENDANT, AND AMERICAN RELIABLE INSURANCE CO., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Nos. 02-01-0230-I; 05-04-0009-I; 05-05-1080-I; 05-07-1776-I; 05-01-0155-I; 04-09-2869-I; 04-09-2999-I; 05-03-0710-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 27, 2000

Before Judges Cuff and Simonelli.

In these eight bail forfeiture appeals, a corporate surety, American Reliable Insurance Co. (American), appeals from orders remitting a portion of the forfeited bail. In each case, defendant did not commit another crime after failing to appear while released on bail. American contends in each case, but two, that it was entitled to a substantial, rather than partial, remission of the forfeiture. In the other two cases, the surety argues it was entitled to a more substantial remission than ordered by the judge. In all but two cases, State v. McCollum, A-5383-05T1, and State v. Mitchell, A-5384-05T1, we reverse and remand for further proceedings consistent with this opinion. We affirm the orders entered in McCollum, supra, and Mitchell, supra.

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 Administrative Office of the Courts promulgated Directive #13-03, that 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.

We turn to an evaluation of the eight cases before us. We start with certain basic principles. First, the surety bears the burden to prove that forfeiture is inequitable. State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975); 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. State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005); State v. de la Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003).

In State v. Crosby, A-5377-05T1, defendant was released on bail in the amount of $25,000. Bail was forfeited on April 5, 2004, when he failed to appear in court. The clerk forwarded notice of forfeiture to the surety on April 16, 2004. Defendant died on June 18, 2005. At the time of his death, defendant had been a fugitive for fourteen months. Defendant did not commit another crime while a fugitive.

The judge concluded that the surety was entitled to partial remission of 40% with no costs due to the State. He provided no reasons for the nature or degree of remission. The order requires forfeiture of 60% of the posted bail.

In State v. Flores, A-5378-05T1, defendant was released on $50,000 bail. Bail was forfeited on May 2, 2005. The clerk forwarded a notice of forfeiture to the surety on May 10, 2005. Defendant was returned to custody on May 19, 2005, seventeen days after forfeiture. He had not committed a new offense while a fugitive.

The judge found that the surety was entitled only to partial remission of forfeiture in the amount of 75%. The judge reasoned that if the surety was actually monitoring defendant and if immediate steps had been taken to capture defendant, the bondman's agent should have been able to find defendant. The judge emphasized that the sheriff had located defendant. Thus, $12,500 of the bail was forfeited.

In State v. Goulbourne, A-5379-05T1, defendant was released on $25,000 bail. Bail was forfeited on May 31, 2005. The clerk forwarded a notice of forfeiture to the surety on June 6, 2005, and defendant was returned to custody on November 23, 2005.

Defendant had been a fugitive almost six months. He did not commit a new crime while he was a fugitive.

The judge awarded partial remission in the amount of 75%. Thus, American forfeited $6750 and was assessed costs of $405 for recapture. As in Flores, supra, the judge emphasized that the sheriff, rather than the surety's agents, located defendant and returned him to custody.

In State v. Lane, A-5382-05T1, defendant was released on $30,000 bail, which was forfeited on August 15, 2005. The clerk sent a forfeiture notice to the surety on August 17, 2005; defendant was arrested on August 18, 2005.*fn2 He had been a fugitive for three days. Defendant had not committed another crime while on bail.

The judge found that American should receive a partial remission of forfeiture in the amount of 75%. He commented that this case was similar to Flores, supra.

In State v. Ortiz, A-5385-05T1, defendant was released on $20,000 bail, which was forfeited on October 4, 2004. The clerk sent a notice of forfeiture to the surety on October 22, 2004. Defendant was arrested on or about June 2, 2005. He had been a fugitive for eight months. Defendant had not committed a new offense.

The judge found that American should receive a partial remission of 50%. In doing so, he reasoned that the matter was similar to Crosby, supra, in which the judge allowed a 40% remission. Like Crosby, defendant was a fugitive for over six months and had not committed a new crime. The difference in the amount of time defendants were fugitives seems to account for the slightly greater remission in the Ortiz case.

In State v. Truesdale, A-6328-05T1, American posted bail in the amount of $25,000. Bail was forfeited on June 6, 2005, and the clerk notified American of the forfeiture on June 16, 2005. At the hearing, the State represented that defendant did not commit a new offense and the judge treated the case as such.*fn3

American filed a motion to vacate the forfeiture in which it relied on the same general certifications submitted in all of these bail forfeiture cases. The State noted that defendant had not committed a new offense and argued that American was entitled to a partial remission of 75%. The judge accepted this suggestion and ordered partial remission of 75%, and entered an order requiring American to pay $6,000 plus $655 in costs.

In State v. McCollum, A-5383-05T1, defendant was released on $15,000 bail, which was forfeited on May 20, 2005. The surety's agents apprehended defendant and returned him to custody on or about November 2, 2005. Defendant had been a fugitive five and one-half months.

The judge allowed a substantial forfeiture remission of 85%. Here, the judge identified the length of time defendant was a fugitive, the fact of recapture, and the surety's involvement in the apprehension of defendant.

In State of Mitchell, A-5384-05T1, defendant was released on $50,000 bail, which was forfeited on August 22, 2005. The clerk notified the surety on August 24, 2005, and the surety's agents apprehended defendant and returned him to custody on or about December 2, 2005. Defendant had been a fugitive for four months and ten days.

The judge remitted 90% of the forfeiture. The judge noted that Mitchell had been a fugitive less time than McCollum, that the bail was larger, and that the surety located and returned defendant to custody.

Each of the eight cases discussed in this opinion has similar characteristics. All but one were decided on the same day.*fn4 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.*fn5 In addition, in all but two cases, 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.

Finally, consideration of six of the eight appeals as a group reveals disparities in degree of remission (minimal, partial or substantial), based on virtually identical records.

When compared with some of the cases in the companion case of State v. Alexander, A-5373-05T1, the differences are more striking.

For example, in Flores and Lane, defendants had been fugitives for a matter of days. The judge treated them similarly. In Goulbourne, however, without any explanation the judge found that the surety should receive a partial remission of 75%, the same as in Lane and Flores; yet Goulbourne had been fugitive for almost six months. Of greater significance, however, is the decision to accord a partial remission in Crosby, Flores, Goulbourne, Lane and Ortiz on the same record that yielded substantial remissions in the companion case. The disparity is particularly striking because defendants in each case discussed in Alexander had all committed another crime while a fugitive.

We can understand the judge's skepticism about the efficacy of the surety's monitoring efforts and the extent of its attempts to recapture a particular defendant. Yet, the judge never explains what caused his more critical review of the certifications submitted by the surety in this set of cases. Furthermore, the judge made no attempt to reconcile the disposition of these forfeiture remission dispositions with the other motions decided that day. See Alexander, supra.

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 six of the eight cases also demonstrates a mechanical approach to the extent of the remission. Remission Schedule 2 of the Guidelines provides that 75% of the forfeiture may be remitted when the judge determines that a partial remission is in order and defendant is at large for six months or less.*fn6

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. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); 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.

In some forfeiture remission appeals, we have elected to exercise our original jurisdiction. See State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003); State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003); 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 Crosby, Flores, Goulbourne, Lane, Ortiz and Truesdale, 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. We, therefore, reverse and remand for further proceedings consistent with this opinion.

On the other hand, the presence of more specific findings of fact and a more explicit statement of reasons for the forfeiture remission allows us to affirm the orders entered in McCollum and Mitchell.

In McCollum, supra, the judge identified the factors he considered relevant and significant and explained the reason for his decision. Thus, we affirm the order remitting 85% of the bail forfeiture.

In Mitchell, supra, the findings of fact are supported by the record and the judge provided an adequate explanation for his discretionary decision. The order remitting 90% of the forfeiture is affirmed.

In summary, the orders entered in the following cases are reversed and remanded for further proceedings consistent with this opinion: State v. Crosby, A-5377-05T1; State v. Flores, A-5378-05T1; State v. Goulbourne, A-5379-05T1; State v. Lane, A-5382-05T1; State v. Ortiz, A-5385-05T1; State v. Truesdale, A-6328-05T1. We do not retain jurisdiction. The orders in State v. McCollum, A-5383-05T1, and State v. Mitchell, A-5384-05T1, are affirmed.


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