On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-03-195.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 25, 2009
Before Judges Axelrad and Messano.
Safety National Casualty Corporation (Safety) appeals from the order entered by the Law Division forfeiting $20,000 of the $25,000 bond posted on behalf of defendant Larry DeShields. Safety challenges the court's use of the guideline classification of "minimal remission," and contends the court failed to consider all of the requisite factors before entering a forfeiture of 80% of the bail bond amount and failed to articulate the reasons for its determination. We are satisfied the classification was appropriate, but remand to the motion judge to reconsider the amount of remission after articulating and weighing the relevant factors.
The facts are not in dispute. Safety, a commercial surety, posted bail in the amount of $25,000 for DeShields on June 15, 2007. No evidence was presented that Safety engaged in any monitoring efforts. DeShields failed to appear in court as required on August l6, 2007, at which time bail was forfeited and a bench warrant was issued for his arrest. A Notice of Bail Forfeiture was generated by the court on August 24, 2007, and was received by the surety a few days later. See R. 3:26-6(a). Safety assigned the file for recovery efforts to its agent Richard Padron on September 19, 2007. According to Padron's affidavit dated October 25, 2007, after receipt of the file he "verified that the warrant was active through the Cumberland [C]county Bail [U]nit. We conducted several searches and began to work on the case." On October 24, 2007, "before working on the case," Padron "decided to check to see if Mr. DeShields was currently in custody in any New Jersey facility." The recovery agent "located" DeShields incarcerated in the Cumberland County jail.*fn1 There was no evidence that DeShields had committed a new offense while a fugitive.
Safety then filed a Motion to Stay the Entry of Judgment and/or Execution of the Judgment and to Vacate the Forfeiture and/or Judgment, Exonerate the Surety and Discharge the Bond, based on defendant's incarceration. By order of February l5, 2008, the court concluded the lack of supervision while DeShields was released on bail and the failure to engage in immediate and substantial efforts to recapture him warranted remission to Safety of only 20%, or $5,000 of the $25,000 bond, under the "minimal remission" category of the guidelines under Remission Schedule 2, as DeShields had been at large six months or less.*fn2
On appeal, the surety argues it should have been placed in the "partial remission" range, urging that a month's delay in assigning a file to a recovery agent, though not desirable, still constituted "immediate substantial" efforts to recapture DeShields. We disagree. Safety not only sat on the file for about a month after receiving the court notice of bail forfeiture before assigning it to a recovery agent, but its recovery agent compounded the delay by doing virtually nothing on the file for another month until he made a single call on October 24, 2007 and learned that DeShields was incarcerated in the county jail. Presumably, he had recently been taken into custody. Thus two months lapsed from the time Safety was informed of the warrant/forfeiture before the surety made an effort to effectuate recovery of its bonded defendant, which is not a brief delay. Moreover, the surety played no part in actually returning DeShields to custody, which it might have been able to do if it had responsively and responsibly promptly assigned the file to a recovery agent and monitored the progress. Accordingly, we are satisfied the record supports the trial court's finding that Safety failed to engage in immediate substantial efforts to recapture DeShields, and thus minimal remission is warranted.
The Remittitur Guidelines, however, were developed to provide judges with a starting point when determining whether to grant a remission and, if granted, the amount to remit. State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, l86 N.J. 365 (2006); R. 3:26-6(b). The guidelines require a court to consider the particular facts of an individualized case and the case law, and weigh the relevant factors in accordance with the policy concerns to determine whether to increase or decrease the remission amount indicated by the schedules. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007). The court should then make a record of the factors considered and the reasons for its findings.
A greater record is required than the rote recitation of the minimal remission guideline percentage that was done in this case. An equitable consideration that may have been overlooked by the court is the amount of the bail itself. In determining the amount of remission, "the court should take into account not only an appropriate percentage of the bail but also its quantum." State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). We take no position on the equities of charging the surety $20,000 for a defendant whose whereabouts were unknown for about two months, and leave that for further argument by counsel and analysis by the court on remand. We also note that the record does not disclose if any costs were incurred by the authorities in securing DeShields' recapture, which is also a factor that should be evaluated by the court on remand. This list is not intended to be exhaustive, and the court should consider and weigh whatever other factors and policy considerations it deems appropriate under the circumstances of this case. It should also clearly articulate its findings. R. 1:7-4.
Modified and remanded. We do not retain ...