On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Indictment No. 06-03-00310-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Stern and Lyons.
Allegheny Casualty Co. appeals from an order of the Law Division, entered on January 15, 2009, denying its motion to vacate a bail forfeiture and obtain a remission. The order was based on State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003), certif. denied, State v. Gilbert, 177 N.J. 496 (2003), essentially because the defendant Faswala "remain[ed] a fugitive," and because his non-appearance "resulted from the Surety's failure to adequately assess their risk at the outset of their relationship with defendant, and a failure to take appropriate steps to recapture defendant" after learning of his unsuccessful effort to leave the country in March 2005, just a month after his arrest and release on bail. Allegheny argues that "failure of a court to revoke bail when a defendant breaches the terms of the recognizance acts to discharge the surety," and "bail should be exonerated when the prosecutor's office refuses to prevent the defendant's flight."
The background is detailed in our opinion of January 15, 2008. The defendant was not reporting to the surety, Allegheny. On March 12, 2005, it learned that defendant was detained near Buffalo, New York, while endeavoring to leave the country, but the prosecutor took no action to cause his return. On March 25, 2005, the surety moved to revoke bail and issue a bench warrant for purposes of exoneration. The application was denied because defendant had done nothing at that point to violate the terms of the bond. However, on April 11, 2006, he failed to appear in court after an indictment was returned. A warrant was issued and bail was forfeited. Allegheny appealed from the entry of judgment and the denial of its vacation, and argued that the State's failure to act after being advised defendant had absconded and had been detained, in essence, permitted his ability to escape prosecution and, therefore, should exonerate the surety because of the "increased risk of non-appearance" caused by the State.
We noted the record was not clear as to the surety's efforts to secure and return defendant after defendant's detention in March, 2005. Similarly, the record did not reflect if the prosecutor "increased the likelihood that Faswala would not appear by allowing the border authorities to release him." According to our opinion: "[i]f the prosecutor's office allowed the border authorities to release Faswala by advising that it would not seek his return, such action could be construed as increasing the risk of Faswala's non-appearance," which would support a remission even though defendant had not violated the conditions of bail at that time.
Judge Waters' formal opinion on the remand was based on fact finding which included that "the prosecutor's office did not increase the risk of defendant's flight risk" by not having defendant detained by the border police. "... [T]he prosecutor's office did not advise the border police that they would not seek the defendant's return, but that they could not seek his return" because there was no basis for a bail forfeiture at the time. The defendant had been bailed out before a bail hearing was held so that specific conditions addressed to travel or endeavoring to leave the country were never imposed.
The record sufficiently supports Judge Waters' findings. In addition, our law does not generally permit remissions until the defendant is apprehended and returned or the surety surrenders him following a forfeiture. See R. 3:26-6; State v. Harmon, supra, 361 N.J. Super. at 254-55.
If defendant is apprehended and returned for prosecution, the surety may move for partial remission at that time based on the appropriate remission standards. See e.g., R. 3:26-6(b), (c); State v. Ventura, 196 N.J. 203, 206 (2008); State v. Peace, 63 N.J. 127, 129 (1973); State v. Heyers, 122 N.J. Super. 177, 180 (App. Div. 1973).
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