On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-02-153-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Axelrad and Espinosa.
Safety National Casualty Corporation (Safety) appeals from the order entered by the Law Division forfeiting $18,750 of the $25,000 bond posted on behalf of defendant, David W. Taylor, Sr. Safety contends the court failed to consider all of the requisite factors before entering a forfeiture of 75% of the bail bond amount and failed to articulate the reasons for its determination. We are not persuaded by Safety's arguments and affirm.
The facts are not in dispute. Safety, a commercial surety, posted bond in the amount of $25,000 for Taylor on November 16, 2007. No evidence was presented that Safety engaged in any monitoring efforts. Taylor failed to appear in court as required on February 20, 2008, at which time bail was forfeited and a bench warrant was issued for his arrest. A Notice of Bail Forfeiture was generated by the court on May l0, 2008, and was received by the surety a few days later. See R. 3:26-6(a). On April 25, 2008, Safety's bail supervisor checked a website and located Taylor in the Cumberland County jail, where he had been incarcerated since April l6, when arrested for burglary.
Safety filed a motion to vacate the bail forfeiture. It acknowledged that its contact with Taylor before his failure to appear did not rise above the level of "minimal supervision." It argued, however, that the slightly more than a month delay in assigning the file to a recovery agent still fell within the meaning of "immediate, substantial efforts to recapture" and that the surety did all that it could do, which essentially was to find the person incarcerated. The surety further argued that no proofs were submitted as to the State's expenses.
Accordingly, Safety urged that pursuant to the Remittitur Guidelines, it should receive 40% of its bond.
By order of August l8, 2008, the court rejected the surety's argument that it exercised substantial efforts to recapture, concluding that the efforts to recapture were "perhaps moderate" and Safety was only entitled to remission of 25% ($6250) of its bond under Remission Schedule 3, as Taylor had been at large six months or less.*fn1 This appeal ensued, during which Safety renews its arguments made to the motion judge as to its "substantial efforts to recapture" and further challenges the judge's lack of articulation of specific findings.
The Remittitur Guidelines were developed to provide judges with a starting point when determining whether to grant a remission and, if granted, the amount to remit. Guidelines, supra, at 4 (citing State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); R. 3:26-6(b)). The guidelines require a court to consider the particular facts of an individualized case and the case law, and weigh the relevant factors in accordance with the policy concerns to determine whether to increase or decrease the remission amount indicated by the schedules. Ibid. (citing State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007)). The court should then make a record of the factors considered and the reasons for its findings. Ibid. (citing State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005)). The factors to be weighed in determining whether to remit bail and the amount to be remitted include: whether the surety has made a reasonable effort to effect the recapture of the fugitive defendant; whether the applicant is a commercial bondsman; the surety's supervision of the defendant while he or she was released on bail; the length of time the defendant is a fugitive; the prejudice to and expense incurred by the State as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture and whether the reimbursement of the State's expenses will adequately justify the interests of justice; and the amount of the posted bail.*fn2 Guidelines, supra, at 1-2.
Remission Schedule 3 provides in pertinent part:
Where the surety provided minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture the defendant, minimal remission is warranted subject ...