On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2261.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Simonelli.
In this bail forfeiture appeal, a corporate surety, American Reliable Insurance Co. (American), appeals from the July 10, 2007 order remitting a portion of the forfeited bail.
Defendant did not commit another crime after failing to appear while released on bail. American contends that it was entitled to a ninety-five percent remission of the forfeiture.
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) (citing State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003)); 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 seven 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.
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).
Here, defendant was released on bail in the amount of $65,000. Bail was forfeited on November 2, 2005, when he failed to appear in court. The clerk forwarded notice of forfeiture to the surety on November 17, 2005. Defendant was returned to custody on April 10, 2006, by the Essex County Sheriff's Department. Defendant had been a fugitive for almost five months. He did not commit a new offense while a fugitive.
The judge found that the surety was entitled only to an eighty percent remission of forfeiture. Except to say that if the surety "looked a little harder, they would have found the defendant[,]" the judge provided no reasons. Thus, $13,000 of the bail was forfeited.
This was 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 certification submitted by the surety in support of its remission motion contains little, if any, information about the specific steps undertaken by the surety to supervise defendant while released on bail and to locate and return the defendant to custody. 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 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 defendant seriously hampered this effort.
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. ...