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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...