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State v. Scurry

November 16, 2009


On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-09-00759-I.

Per curiam.


Argued October 14, 2009

Before Judges Lihotz and Ashrafi.

Safety National Casualty Corporation (Safety National), a corporate surety, appeals from a Law Division order remitting ten percent of the forfeited bail it posted for defendant, Vernon Scurry (defendant). Safety National argues the trial court abused its discretion when it failed to consider all required factors before ordering forfeiture of ninety percent of the bail bond amount. Safety National further asserts the court failed to properly articulate the reasons for its determination. Following our review, we agree the record is insufficient to support the limited remission ordered. Therefore, we reverse and remand for further review by the trial court.

Safety National posted a $20,000 bail bond for defendant. As a result of his failure to appear in court on January 2, 2008, defendant's bail was revoked, a warrant was issued, and forfeiture of the posted bail was ordered. On January 15, 2008, Safety National received a notice of bail forfeiture and, on February 5, 2008, referred the case to its recovery agent, Direct Recovery (Direct). On March 24, 2008, Direct located defendant in the Cape May County Jail.

On the basis of defendant's incarceration, Safety National moved to stay the entry of judgment or the execution of the judgment, and to vacate the forfeiture, exonerate the surety and discharge the bond. On the motion return date, Safety National argued defendant was a fugitive for a relatively short period of time and, therefore, substantial remission was appropriate. The State argued Safety National's failure to provide any monitoring or to engage in immediate, substantial efforts to secure defendant's recapture should result in absolute forfeiture of the bail amount. The court informed counsel defendant was in custody, as he was "alleged to have been [involved] in a second-degree burglary in Cape May County."

The trial judge, relying on his finding that "[defendant] did commit a new crime," made the following determinations:

I find that there was minimal or no supervision; that [defendant] was out on bail and I would say a failure to engage in immediate and substantial efforts to recapture the defendant. I am going to provide a minimal remission, nevertheless. The time period was far less than six months. It was approximately two months or two and a half months, almost three, after he failed to appear. I will reimburse 10 percent of the amount . . . ordered [forfeited] . . . remitted to the surety.

This appeal followed.

We have long recognized that "the decision to remit bail and the amount of remission are matters within the sound discretion of the trial court to be exercised in the public interest." State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003) (citing State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003)).

The court's discretion must be guided by the standards articulated in State v. Mercado, 329 N.J. Super. 265, 271-72 (App. Div. 2000), and State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), as well as the policy concerns identified in de la Hoya, supra, 359 N.J. Super. at 199, which provides a commercial surety must be given reasonable incentive to attempt recapture of non-appearing defendants and that the surety's burden should not be so great as to risk impairment of a defendant's right to post pre-trial bail. We emphasized that "the focus of the bail forfeiture procedure is the vindication of the public interest and not primarily revenue raising." Clayton, supra, 361 N.J. Super. at 393.

A trial court's decision to remit bail and the amount of the remission are equitable in nature. In addition to the amount of the bail posted, the judge should consider: (1) the corporate or private status of the surety, (2) the nature and extent of supervision by the surety while the defendant is released on bail, (3) the surety's efforts to return the defendant to custody, (4) the time between the failure to appear and the return to custody, (5) the prejudice to the State attributable to the absence of the defendant, (6) the expense incurred by the State due to the absence of the defendant, and (7) whether reimbursement of expenses incurred by the State will satisfy the interests of justice. Hyers, supra, 122 N.J. Super. at 180. Additionally, the Supreme Court has noted "[t]here is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case." Peace, supra, 63 N.J. at 129. Moreover, a defendant's commission of another offense while a fugitive is "a significant element of intangible injury to the public." de la Hoya, supra, 359 N.J. Super. at 200.

In an effort to aid a trial court's decision, the Administrative Office of the Courts promulgated Remittitur Guidelines under Directive # 13-04 on November 17, 2004, which were most recently supplemented on November 12, 2008 (Guidelines). The Guidelines, "provide judges with a starting point when determining whether to grant a remission, and, if ...

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