December 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER RAYMOND, DEFENDANT, AND FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Complaint No. W-2010-152-1905.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2011 -
Before Judges A. A. Rodriguez and Ashrafi.
Appellant First Indemnity of America Insurance Company, which issued a bail bond to secure the release of defendant Christopher Raymond from custody, appeals from a January 12, 2011 order of the Law Division remitting seventy-five percent of the bail funds after bail was forfeited but defendant was subsequently recaptured. It contends on appeal that guidelines issued by the Administrative Office of the Courts (AOC) for remission of forfeited bail required a higher percentage of remission. Because of unforeseen circumstances, the Law Division reached its decision without full participation of counsel for appellant. We reverse and remand to the Law Division to consider appellant's argument for remission of ninety-five percent of the forfeited bail.
Defendant Raymond was charged in a criminal complaint with burglary, criminal mischief, and theft by unlawful taking. The court set his bail at $25,000. Appellant is a surety company whose agents are commercial bondsmen licensed to post bail bonds in New Jersey. On September 3, 2010, it issued a bail bond on behalf of Accurate Bail Bonds, Inc. (Accurate) to secure Raymond's release from jail. Conditions of Raymond's bail bond required that he attend all court dates and that he check in weekly with Accurate.
After his release, Raymond checked in with Accurate by telephone on September 10 and 18, the second date being one day late on the schedule Accurate established for his reporting. On September 21, 2010, the court notified Accurate that Raymond had failed to appear as scheduled in court for a pre-indictment conference. As a result of Raymond's violation of the conditions of his bail, the court ordered the bail to be forfeited and issued a warrant for Raymond's arrest.
Accurate immediately attempted to find Raymond. It contacted him on Friday, September 24, 2010, at which time Raymond claimed he had attended court on September 21,*fn1 and would provide evidence of his appearance to Accurate the following Monday. On Monday, September 27, Raymond failed to keep his appointment with Accurate or to provide evidence of his court appearance.
The following day, Accurate made further contacts and spoke with a woman who claimed she had personally left Raymond at the courthouse on September 21. Continuing to seek documentary evidence of Raymond's court appearance, Accurate contacted the court on October 4 and inquired as to whether he had in fact appeared in court as scheduled. Court staff had no immediate answer. On October 13, Accurate was able to speak with Raymond on the telephone. The following day, Accurate again contacted the court and this time obtained information that Raymond had come to the courthouse for the scheduled pre-indictment conference and signed in with court staff, but that he had failed to see his probation officer for a drug screen as instructed and had left the courthouse without permission.
On the day after receiving this information, October 15, 2010, Accurate arranged a meeting with Raymond at a business location in Newton and notified the Sussex County Sheriff's Office. At the arranged meeting, a law enforcement officer apprehended Raymond and returned him to custody.
Appellant then moved for full or substantial remission of the $25,000 in forfeited bail pursuant to N.J.S.A. 2A:162-8 and Rule 3:26-6(c). In response, County Counsel took the position that only seventy-five percent remission should be granted under AOC guidelines. The matter was scheduled for argument on January 12, 2011.
On that date, counsel for appellant was delayed because of an earlier scheduled court appearance in another county and also because of snow conditions. The court was able to contact counsel on his cellular telephone as he was on the road attempting to reach the Sussex County Courthouse. During the brief telephone conference conducted on the record, the court indicated it would grant a seventy-five percent remission of the bail funds. Counsel did not object.
Upon reflection after reviewing the file, appellant's counsel believed that the court had erred, and so, he filed a notice of appeal. On appeal, counsel states that the conditions of the telephone conference did not provide him access to his case file, and he admits he erred in failing to object to the seventy-five percent remission. Appellant contends that the relevant factors listed in the AOC guidelines for bail remission required a greater amount because Raymond was a bail violator for only a short time and Accurate's diligent efforts were responsible for quickly returning him to the custody of the court. County Counsel argues that Accurate did not adequately supervise Raymond while he was released on bail.
Bail forfeitures and remissions are governed by Rule 3:26-6. Paragraph (b) of the rule permits the trial court to set aside a forfeiture in whole or in part. Paragraph (c) also authorizes the court to remit the bail to the surety "in whole or in part in the interest of justice" even after a judgment of forfeiture is entered. See State v. Ramirez, 378 N.J. Super.
355, 364 (App. Div. 2005); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003).
"The matter of remission lies essentially in judicial discretion." State v. Peace, 63 N.J. 127, 129 (1973). In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we listed factors relevant to the court's exercise of that discretion, and in Peace, supra, 63 N.J. at 129, the Supreme Court approved consideration of those factors. At a later time, and after development of additional precedents on the issue of bail remission, the AOC issued guidelines to assist trial courts in determining the amount of forfeited bail that should be remitted. See Supplement to Directive #13-04 (issued Nov. 12, 2008), available at www.judiciary.state.nj.us/ directive/2008/ dir_13-04_Supplement_11_12_08.pdf.
Citing case law, the administrative directive outlines the relevant policy concerns, in particular, providing an incentive for a surety to recapture a fugitive and avoiding commercial sureties from being overly cautious in issuing bail bonds. Id. at 1. The directive lists the relevant factors a trial court should weigh when deciding a remission request and provides guidance in balancing those factors.*fn2 Id. at 1-4. The directive includes three remission schedules that courts should use as "a starting point when determining whether to grant a remission, . . . and, . . . the amount to remit." Id. at 4-8.
The second remission schedule applies to the facts in this case. That schedule addresses remission where the defendant is no longer a fugitive and did not commit a new crime while a fugitive. Id. at 7 (Remission Schedule 2). The schedule recommends "substantial remission" of the forfeited bail "[w]here the surety provided close ongoing supervision while the defendant was out on bail and made immediate substantial efforts to recapture the defendant. . . ." Ibid. If "substantial remission" is granted, the surety and the State are first permitted to recover their costs from the bail funds. As to the remaining balance, the schedule suggests ninety-five percent as the starting point for remission if, as in this case, the defendant was at large for less than six months. Ibid.
In contrast, "partial remission" is recommended in Remission Schedule 2 as follows:
Where the surety provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant;
or Where the surety provided close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture the defendant. [Ibid.]
For "partial remission," if the defendant was at large for less than six months, the schedule suggests seventy-five percent as a starting point for the court's consideration. Ibid.
Courts are not bound by the percentages in the remission schedules. "Based on the particular facts of the case, the remission amount indicated by the schedules . . . should be increased or decreased after balancing the factors that have been weighed in accordance with the policy concerns." Id. at 4 (citing State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007).
In this case, the court granted partial remission of seventy-five percent but did not fully explain its findings of relevant factors leading to that decision. The absence of a more detailed explanation was caused by the unforeseen circumstances of counsel's hastily arranged telephone appearance and his failure to argue orally his position on bail.
Before us, appellant argues it should have been granted 100% remission because Raymond signed in at the court on September 21, 2010, and so, was not a fugitive. We reject this argument because Raymond failed to abide by the conditions of his bail when he left the courthouse without meeting with the probation officer for a drug screen. The court had no further contact with Raymond until twenty-four days later when Accurate arranged a meeting and caused his arrest on October 15. The Law Division did not err in forfeiting Raymond's bail under Rule 3:26-6(a) and declining to grant full remission.
Appellant argues alternatively that it should have been granted "substantial remission" of ninety-five percent because:
(1) Raymond was at large for less than six months, (2) he did not commit any other crime while at large, (3) Accurate had closely supervised him during the time from the posting of bail on September 3 until he violated his bail conditions on September 21, and (4) Accurate had made immediate substantial efforts to recapture Raymond upon being notified of the bail violation.
County Counsel responds that Accurate did not closely supervise Raymond while released on bail, relying upon a statement in a report prepared by Accurate that Raymond "was very sporadic with his check ins." In context, that statement is better understood as including the time after Raymond's bail was revoked and forfeited. Appellant makes a strong argument that, considering the nature of the charges, the weekly telephone reporting was close and reasonable supervision of Raymond for the two weeks that he was released on bail before the bail violation occurred and an arrest warrant was issued.
Appellant argues further that Accurate's immediate and substantial steps to recapture Raymond were successful; Raymond was apprehended within twenty-four days of his leaving the courthouse on September 21 and one day after court staff confirmed that he had in fact failed to comply with his bail requirements. County Counsel does not dispute that the efforts of Accurate were responsible for recapturing Raymond.
As a result of unforeseen circumstances, counsel for appellant was compelled to address the motion for remission without access to his case file. The trial court did not have the benefit of the arguments that appellant has made before us on appeal. Its exercise of discretion in ruling on the motion was hampered by the lack of argument from both interested parties.
We are reluctant either to find plain error in the trial court's decision or to preclude appellant from having a full hearing on the issue of remission. Although a motion for reconsideration under Rule 4:49-2 is generally subject to a restrictive standard, see, e.g., Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996), this may have been an appropriate case to make such a motion, instead of filing a notice of appeal. The trial court's exercise of discretion would have been better served with consideration of appellant's arguments now raised on appeal.
In the unusual procedural circumstances shown by this record, we will remand this matter to the trial court to provide appellant an opportunity to be heard as to its arguments for a greater remission. We do not direct any particular result but seek to have the trial court exercise its discretionary authority in accordance with applicable law and guidelines to determine the proper amount to be remitted, and to state specifically and with greater detail the reasons for its decision.
Reversed and remanded for reconsideration by the trial court. We do not retain jurisdiction.