On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-09-01108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2009
Before Judges Rodríguez and Yannotti.
American Reliable Insurance Company (American) appeals from an order entered by the trial court on January 28, 2008, denying its motion to set aside a bail forfeiture and for remission of the forfeited bail. We affirm.
Defendant Kenneth Robinson was released on bail, after American posted a surety bond in the amount of $35,000, through its agent, Aaron Bail Bonds (Aaron). On November 8, 2004, defendant failed to appear for sentencing and the trial court issued a bench warrant for his arrest. Thereafter, the court entered an order pursuant to Rule 3:26-6(a) forfeiting bail and on February 2, 2005, a default judgment was entered against American pursuant to Rule 3:26-6(c).
On or about March 4, 2005, American filed a motion to set aside the forfeiture and discharge the bond. American asserted that, after defendant failed to appear, it took steps to locate him. According to American, defendant had been arrested on December 22, 2004, in North Carolina and was incarcerated there. The trial court denied American's motion. The court found that the surety's primary obligation of the bond remained unsatisfied because defendant had not yet been returned to New Jersey. The court ruled that American could seek remission of the forfeited bail upon defendant's return to this state. American appealed the court's determination.
We reversed the trial court's order, concluding that court erred by finding that the surety's essential undertaking under the bond would not be fulfilled until such time as defendant is produced in New Jersey. State v. Robinson, No. A-5296-05 (App. Div. June 14, 2007) (slip op. at 7). We noted that the recapture of a defendant who failed to appear constitutes the partial fulfillment of the surety's undertaking, even though the defendant is being held in another jurisdiction pending extradition. Ibid.
We remanded the matter to the trial court for reconsideration of American's motion. We stated that some "small remission" of the forfeited bail might be appropriate unless the court determined that relief was not warranted, upon consideration of all of the relevant factors and public policy concerns. Id. at 7-8.
American thereafter submitted a certification to the trial court from Veton Binakaj (Binakaj), in which he explained the steps that Aaron had taken to ensure that defendant appeared in court. Binakaj also explained the procedures that Aaron generally follows when it attempts to locate a defendant who has failed to appear.
The State submitted a certification from Lieutenant Christoper Engram (Engram), in which he stated that defendant had been arrested on February 22, 2005, in North Carolina on a fugitive from justice warrant and local charges involving a controlled dangerous substance (CDS). After his arrest, defendant was incarcerated in the Guilford County Jail. The Middlesex County Prosecutor's Office (MCPO) lodged a bench warrant with the North Carolina authorities and awaited disposition of the local charges before making arrangements for defendant's extradition to New Jersey.
In addition, Engram stated that on March 2, 2005, the MCPO confirmed that defendant was still in custody in the Guilford County Jail. On March 8, 2005, an assistant prosecutor for Middlesex County approved defendant's extradition and lodged a detainer with the North Carolina authorities. On May 19, 2006, the MCPO again confirmed that defendant was incarcerated in the Guilford County Jail and its detainer was in place.
Engram also stated that on June 7, 2006, the MCPO was informed that defendant had been sentenced on the CDS charges but was refusing to return to New Jersey. The MCPO also was told that defendant was facing additional charges in North Carolina and would not be returned to New Jersey until those charges were resolved.
Engram also recounted that on June 11, 2007, the MCPO sought confirmation that defendant was still in custody in the Guilford County Jail and inquired as to when he would be released for transport to New Jersey. The Guilford County Sheriff's office advised that defendant had been released from custody on June 20, ...