On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-08-669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Gilroy.
Allegheny Casualty Company (the Surety) appeals from the September 19, 2008 order that directed a bail forfeiture of $15,000. We affirm.
On April 10, 2007, the Surety posted a $100,000 bail bond for defendant Carlton Goldsboro. On release, the Surety directed defendant to report to its office to receive instructions regarding his reporting requirements; defendant complied. However, although defendant appeared for arraignment on October 9, 2007, he otherwise failed to maintain contact with the Surety in any manner. The Surety attempted to reach defendant by telephone, but defendant refused to answer. The Surety sent agents to defendant's house, but either no one was present, or the residents therein would not provide the Surety's agents with information concerning defendant's whereabouts. The Surety contacted the indemnitors on the bond, but they too were uncooperative.
On February 22, 2008, defendant failed to appear for a court status conference. The court forfeited defendant's bail and issued a bench warrant for his arrest. The court sent notice of the forfeiture to the Surety on February 27, 2008. On March 25, 2008, the Surety's agents apprehended defendant and surrendered him to the Cumberland County jail. On May 2, 2008, the Surety filed a motion to vacate the bail forfeiture. On September 19, 2008, the trial court entered an order, supported by an oral decision, granting the motion in part; the court remitted $85,000 of the bail, and forfeited $15,000.
In deciding the motion to vacate bail forfeiture, the trial court applied remission Schedule No. 2 of the Bail Forfeiture Guidelines (the Guidelines).*fn1 Schedule 2 applies where the defendant is not a fugitive when the Surety files its remission motion, and the defendant did not commit a new crime while a fugitive. The court reasoned that a partial remission was justified because the Surety had failed to provide sufficient proof of its supervision of defendant while on bail, but had provided proof that it engaged in immediate and substantial efforts to recapture defendant after the Surety was served with the notice of forfeiture. Under those facts, Schedule 2 recommends that the court remit 75% of the bail when the defendant is a fugitive for six months or less.
On appeal, the Surety argues that the trial court erred in remitting only 85% of the bail, contending that: 1) the court did not correctly apply all of the remission factors contained in the Guidelines; 2) the Surety maintained adequate supervision over defendant for a period of time after his release on bail; and 3) the court failed to consider a lack of prejudice to the State.
The decision to remit bail and the amount of remission are matters within the sound discretion of the trial court. State v. Ventura, 196 N.J. 203, 213 (2008); State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003). Bail forfeiture proceedings are governed by Rule 3:26-6 and the Guidelines. Before or after the entry of a judgment of bail forfeiture, the court may "direct that an order of forfeiture or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice...." R. 3:26-6(b).
If the forfeiture is not "set aside or satisfied" within seventy-five days of the date of notice, the court shall "summarily enter a judgment of default for any outstanding bail." R. 3:26-6(c). However, if the enforcement of an order of forfeiture of judgment is not required "in the interest of justice," the court, after the entry of the order or judgment, may remit bail "in whole or in part." Ibid. On a motion to set aside an order of forfeiture or judgment, the burden rests upon the moving party. Ventura, supra, 196 N.J. at 213.
The Guidelines were approved by the Court after this court's trilogy of cases in 2003 that set parameters for remissions in certain factual contexts. State v. Clayton, 361 N.J. Super. 388 (App. Div. 2003); Harmon, supra, 361 N.J. Super. at 250; and State v. Dillard, 361 N.J. Super. 184 (App. Div. 2003). In determining whether to grant a remission, and if so, the amount to be remitted, the trial court should weigh the following factors:
1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture ...