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State v. Giusini

June 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIC GIUSINI, DEFENDANT, AND ALLEGHENY CASUALTY COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-10-4008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2010

Before Judges Lisa and Baxter.

Defendant Allegheny Casualty Corporation (Allegheny or the surety) appeals from a May 6, 2009 Law Division Order denying its motion to set aside an earlier $7,500 judgment on a forfeited bail. On appeal, the surety argues that when defendant, Eric Giusini, failed to appear for a court proceeding, the judge lacked the authority to thereafter reinstate the bail without its consent. We agree. We therefore reverse the order of May 6, 2009 and remand for further proceedings.

I.

On March 5, 2005, Allegheny posted a $7,500 bond on behalf of Giusini, which resulted in Giusini's release from the Camden County Correctional Facility (CCCF). According to the surety, Giusini "checked in" by telephone on both March 8 and March 15, 2005. When Giusini failed to appear for a required court appearance on March 28, 2005, a bench warrant was issued and a judge declared the bail forfeited.

On April 26, 2005, Giusini was arrested on unrelated motor vehicle charges in Gloucester County and was incarcerated in the Gloucester County Correctional Facility. The judge in Camden County was apparently notified of Giusini's apprehension and, on April 27, 2005, converted the March 28, 2005 bench warrant to a bench warrant/detainer. In addition to modifying the bench warrant, the judge reinstated the bail that had been deemed forfeited on March 28, 2005. This April 27, 2005 reinstatement of the bail was accomplished without consulting Allegheny and without obtaining Allegheny's consent to that reinstatement. On May 10, 2005, when Giusini's Gloucester County charges were resolved, he was transported to the CCCF in accordance with Camden County's bench warrant/detainer.

However, on May 6, 2005, after Giusini was apprehended in Gloucester County, but before he was released from the CCCF on May 11, 2005, the surety had filed a pro se "MOTION TO RELEASE FORFEITURE, REINSTATE AND DISCHARGE BAIL." The motion sought the following relief: "please reinstate and discharge my bond" (emphasis added). There is no record of that motion ever being scheduled for a hearing or addressed by a judge.

Because the judge had reinstated Giusini's bail, Giusini was released from the CCCF the day he arrived, May 10, 2005. If there were any court appearances required between May 2005 and October 2007, the parties have not so advised us.

The record establishes that Giusini's next court appearance was scheduled for October 3, 2007. When he failed to appear, the judge issued a bench warrant for his arrest and issued an order forfeiting the bail that had been reinstated in April 2005. Notice of the October 3, 2007 forfeiture was not mailed to the surety until April 17, 2008. Default judgment was entered on July 7, 2008.

On July 11, 2008, Allegheny filed a motion to vacate the bail forfeiture and resulting judgment. The hearing on Allegheny's motion was delayed for several months while the surety unsuccessfully attempted to obtain a transcript of the April 27 and May 13, 2005 proceedings in Camden County. Ultimately, the surety's motion came before the Law Division for a hearing on February 26, 2009. The judge denied the surety's motion for exoneration. We quote the relevant portions of the judge's findings of fact and conclusions of law in their entirety:

Don Burton, [the surety], wrote to the Court and said reinstate and discharge my bond. He acknowledged that... Mr. Giusini had been a fugitive for 30 days, that he received a notice of the forfeiture, and rather than do anything else, he wrote to the Court ...


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