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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 Allegheny contends that once defendant pled guilty, his bail should have been revoked, rather than reduced, and it should have been released from its obligation as surety.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 When Robinson did not appear for sentencing, an arrest warrant was issued and bail was revoked.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 ...