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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...