August 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLTON GOLDSBORO, DEFENDANT, AND ALLEGHENY CASUALTY COMPANY (SURETY), DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 14, 2009
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 of the fugitive defendant.
2. Whether the applicant is a commercial bondsman.
3. The surety's supervision of the defendant while he or she was released on bail.
4. The length of time the defendant is a fugitive.
5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture.
6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.
7. The defendant's commission of another crime while a fugitive.
8. The amount of the posted bail. In determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its amount.
[Directive #13-04, supra, Factors to Weigh in Determining Remission, at 1-2 (internal citations omitted).]
The Guidelines "provide judges with a starting point when determining whether to grant a remission, and, if so, the amount to remit." Id. at 2. Judges are cautioned that "the particular facts in an individual case will determine whether the amount to remit [should be] increased or decreased" from the amounts recommended in the Guidelines. Ibid. It is against these principles that we consider the Surety's arguments.
The Surety argues that the trial court "erred in finding [that it] was only entitled to partial, as opposed to substantial remission." The Surety contends that the "trial court erroneously, and without any basis or explanation, found that the [S]urety failed to submit any proofs regarding supervision" while defendant was on bail. We disagree.
We agree that the trial court should have more fully expressed its reasons in granting only a partial remission. R. 1:7-4(a). Nonetheless, we are satisfied the court correctly concluded that the Surety failed in its burden to establish that it provided more than "minimal" supervision over defendant while on bail as opposed to "close, ongoing supervision" required for a substantial remission.
In support of its motion, the Surety submitted a certification of Richard Sparano, the owner of AA Bail Bonds, the Surety's agent, dated April 2008. In Paragraph No. 3 of that certification, Sparano certifies that after defendant failed to contact AA Bail Bonds on release from jail, AA Bail Bonds undertook the following actions: "Repeated telephone calls were made to [defendant], but he refused to answer. Agents were sent to [defendant's] house, but either no one was there or the residents would not provide any information. The indemnitors on the bond were also contacted, but they were totally uncooperative." The statements are couched in conclusory terms without specifics as to the names of bail bond agents or employees who attempted to contact defendant, the residents of his household or the indemnitors.
Moreover, the certification is silent as to the number of attempts that were made to contact defendant in person or by telephone during the almost one-year period between the time of his release on bail and his failure to appear in court on February 22, 2008. The same is true as to the number of contacts made with the indemnitors or other residents of defendant's household.
Additionally, the certification referencing actions taken by agents of AA Bail Bonds, other than its principal, failed to comply with the requirements of Rule 1:6-6, that is, it was not "made on personal knowledge" of the individual executing the certification. The burden of persuading the court that the Surety maintained "close, ongoing supervision" of defendant while on bail rested on the Surety. Ventura, supra, 196 N.J. at 213. The certification failed to satisfy the court that the Surety maintained sufficient supervision over defendant while on bail to be entitled to a substantial remission. We find no reason to interfere with the trial court's decision.