July 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY ROBINSON AND ALLEGHENY CASUALTY COMPANY, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-01691-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2009
Before Judges Axelrad and Lihotz.
In this bail forfeiture action, defendant Allegheny Casualty Company (Allegheny) appeals from an order remitting a portion of the forfeited bail posted for defendant Corey Robinson. Allegheny contends that once defendant pled guilty, his bail should have been revoked, rather than reduced, and it should have been released from its obligation as surety. Allegheny also argues it was entitled to the release of bail rather than a partial remission of the sum ordered forfeited when Robinson failed to appear for sentencing. Based on our review of the record, we affirm the order as entered.
Following Robinson's arrest for various drug offenses (Indictment No. I-04-12-1691), Allegheny executed a bail recognizance as surety for Robinson's release on a $50,000 bond posted by its agent. After his release, Robinson reported once a week, as required, for approximately two months. While on bail Robinson was again arrested, and a second indictment issued charging him with additional drug offenses (Indictment No. I-04-12-1734). Robinson was unable to post the ordered $150,000 cash bail and was remanded to custody. Robinson agreed to plead guilty to one count of possession with intent to distribute within 1000 feet of school property, as charged in I-04-12-1691, and one count of possession with intent to distribute within 500 feet of public housing, as charged in I-04-12-1734. The proposed sentence required Robinson's incarceration for ten years with a five-year period of parole ineligibility; all other charges were to be dismissed.
The court accepted Robinson's guilty plea and modified bail to $100,000 surety. Robinson posted the additional bond, provided by a different surety, and was released pending sentencing. When Robinson did not appear for sentencing, an arrest warrant was issued and bail was revoked.
More than two years later, Robinson was located in Kentucky, as he attempted to flee. He was remanded to the custody of the Harden County Detention Center in Elizabethtown, Kentucky, and held as a fugitive. Robinson was not charged with committing a new offense. The Middlesex County Prosecutor's Fugitive Squad filed a detainer and proceeded to process Robinson's extradition. Before the Sheriff's Department arranged to transport Robinson, he was released to Allegheny's agents and transported to New Jersey. Allegheny asserts on February 8, 2008, its agent apprehended Robinson, as he was released from custody by the Kentucky authorities, because the Middlesex County Sheriff advised it was not extraditing Robinson "from so far a distance." Robinson was lodged in the Middlesex County jail until sentencing.
On January 31, 2007, Allegheny filed a motion to vacate the previously entered default judgment and bail forfeiture. It also sought to exonerate the surety and discharge the bond. R. 3:26-(c). Judge Venezia granted Allegheny's request to vacate the judgment but denied the motion to discharge. In reviewing the request for forfeiture, she determined Allegheny did little to monitor Robinson before he failed to appear for sentencing, however, it engaged in substantial efforts to return him to New Jersey once he was located in Kentucky. The court ordered forfeiture of fifty-two percent of the bond.
On appeal, Allegheny argues the court's acceptance of Robinson's guilty plea increased the surety's risk, constituting a unilateral modification of the surety agreement. Allegheny maintains once Robinson's incarceration became a certainty, as an inevitable consequence of his plea, bail should have been revoked and its obligation on the bond discharged.
The decision to remit a bail forfeiture and the amount of the remission, governed by Rule 3:26-6, are matters within the sound discretion of the trial judge to be exercised in the public interest. State v. Peace, 63 N.J. 127, 129 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003); State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000). This discretion is not unguided. Trial courts are informed by the standards articulated in Mercado, supra, 329 N.J. Super. at 271 and State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), along with policy concerns identified in de la Hoya, supra, 359 N.J. Super. at 199, which include that a commercial surety must be provided a reasonable incentive to attempt the recapture of non-appearing defendants, and a surety's burden not be so great as to risk impairment of a defendant's right to post pretrial bail. Wilson, supra, 395 N.J. Super. at 226.
The decision to remit bail and the amount of the remission are equitable in nature and a trial judge should consider at least eight identified factors. Hyers, supra, 122 N.J. Super. at 180. These 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. Wilson, supra, 395 N.J. Super. at 226.
Additionally, the Administrative Office of the Courts promulgated Directive #13-03, which includes guidelines to promote consistent handling of remission requests.
The Guidelines contain three schedules to assist judges in determining bail remission. Remission Schedule 1 encompasses situations where a defendant is still a fugitive. Remission Schedule 2 covers situations where a defendant is no longer a fugitive and had not committed a new crime while a fugitive. Remission Schedule 3 applies to situations where a defendant committed a new crime while a fugitive.
[Id. at 330.]
In reviewing Allegheny's argument, we note a surety's contractual risk continues until the defendant's appearance at sentencing, since the "primary purpose of bail is to secure [the] defendant's appearance at court." State v. Calcano, 397 N.J. Super. 302, 306 (App. Div. 2007), certif. denied, 194 N.J. 446, (2008). We have ascertained certain instances when court action, which materially increases the risk assumed by a surety without its consent, appropriately results in the grant of the surety's request for discharge. See State v. Ceylan, 352 N.J. Super. 139, 145 (App. Div.), certif. denied, 174 N.J. 545 (2002) (when a substantial period of incarceration is a certainty, the risk of flight increases, which could well provide a factual foundation justifying surrender and exoneration of bail); see also State v. Vendrell, 197 N.J. Super. 232, 237 (App. Div. 1984) (material change in surety agreement without its consent operates to discharge the surety). Modifications that do not materially increase the risk are permissible. State v. Tuthill, 389 N.J. Super. 144, 149 (App. Div. 2006), certif. denied, 192 N.J. 60 (2007). "[G]enerally[,] a guilty plea or conviction is not an enhanced risk requiring surrender and exoneration." Calcano, supra, 397 N.J. Super. at 307 (citing Ceylan, supra, 352 N.J. Super. at 144).
Citing Ceylan, Allegheny argues Robinson's additional charges, which were not covered by its bond, coupled with his guilty plea assuring incarceration, posed an increased risk of flight. Thus, Robinson's bail should have been revoked. We considered and rejected a similar argument in Calcano, supra.
While, as Ceylan notes, the trial court may require surrender of defendant and exonerate the surety after a guilty plea when defendant faces certain incarceration, such a result is not automatic. Here, neither the prosecutor nor the Surety applied to the court for revocation of bail once the plea was taken. No special or additional circumstances were present that would indicate a material change in the Surety's risk at that point. Accordingly, we find that the trial court's continuation of the bail under the circumstances was a proper exercise of discretion[.] [397 N.J. Super. at 308 (internal citations omitted).]
Here, Allegheny must be charged with notice of Robinson's guilty plea, which encompassed the charges for which the bond was posted. Had Allegheny effectively monitored Robinson's case, it would have been aware of the additional charges and the proposed plea, and it could have requested exoneration. It did not. Accordingly, we concur with Judge Venezia's determination that because Allegheny did not move for revocation of bail and exoneration once Robinson's plea was entered, nothing evinced a material change in its risk. Thus, the resetting rather than revoking bail was not an abuse of discretion. Ibid.
We also reject Allegheny's contention that forfeiture was unfounded. The court's conclusion resulting in partial remission is adequately supported by the factual record. State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005), certif. denied, 286 N.J. 365 (2006). Allegheny's minimal supervision while Robinson was initially released on bail, and its lapse in efforts to monitor him after he was again arrested and released, allowed Robinson to leave New Jersey. Robinson remained a fugitive for almost two and one-half years. Judge Venezia considered the State's efforts in locating and attempting Robinson's extradition from Kentucky, along with Allegheny's actions to retrieve and transport him to New Jersey. We reject the notion that the court failed to weigh the amount of bail subject to forfeiture and mechanically imposed a percentage to be remitted. We conclude the court properly balanced the relevant factors, including the "intangible element of injury to the public interest . . . where a defendant deliberately fails to make an appearance in a criminal case[,]" Peace, supra, 63 N.J. at 129, and utilized the Guidelines in a proper exercise of discretion. In this matter, Judge Venezia's opinion requiring fifty-two percent forfeiture was informed by Directive #13-03.
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