On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-10-961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Grall and Alvarez.
Allegheny Casualty Company (Allegheny) posted a bail bond in the amount of $5000 for defendant Anthony M. Crawford in September 2008. It was forfeited because Crawford did not appear for trial, and Allegheny moved for an order vacating or reducing the forfeiture. Allegheny now appeals from an order remitting $1500, arguing that the interests of justice require a more substantial refund. Finding no abuse of the trial court's discretion, we affirm.
The facts are not in dispute. Allegheny is the insurer on Crawford's bail recognizance, and Don Burton Bail Bonds, 44 Cooper Woodbury, is the bail agency. The power of attorney is in the name of Allegheny, whose address is listed as P.O. Box 9810, Calabasas, CA.
Crawford failed to appear for trial on February 22, 2010. Notice of forfeiture was issued on March 3, and it was sent to Allegheny at a Pennsylvania address. In a certification submitted in support of Allegheny's motion to set aside the forfeiture, the owner and operator of Don Burton Bail Bonds, Donald Burton, asserted that the agency did not learn about the notice of forfeiture until May 27, 2010, when it received the judgment. By that time, Crawford had been tried in absentia.
The bail agency reached Crawford on June 1, 2 and 16, 2010, and attempted, without success, to persuade Crawford to surrender. Local law enforcement officers apprehended Crawford on July 24. Burton's certification does not include any information describing how the agency supervised Crawford while he was on bail or any details explaining the circumstances of his arrest. There is no indication that the agency lent any assistance to the police in defendant's arrest.
The judge found that: Crawford was a fugitive for less than six months; the bail bond agency failed to supervise Crawford; its efforts to recapture him were delayed and insubstantial, consisting only of "some efforts to have defendant turn himself in"; and Crawford committed no new offenses. Balancing those factors, the judge ordered forfeiture of seventy percent of the $5000 bond resulting in a remission of $1500.
A forfeiture of bail "may be vacated, 'in whole or in part, if its enforcement is not required in the interest of justice . . . .'" State v. Ventura, 196 N.J. 203, 213 (2008) (quoting R. 3:26-6(b)). "[T]he party seeking to set aside the judgment bears the burden of proving that remission is justified," ibid., which requires a showing that the forfeiture ordered is "not required in the interest of justice," State v. Fields, 137 N.J. Super. 76, 81 (App. Div. 1975).
"A surety's essential responsibility is to guarantee not only the defendant's appearance at the scheduled court proceedings, but . . . to make every effort to re-apprehend the defendant." Ventura, supra, 196 N.J. at 221. Thus, when "a surety seeks a partial or total remission of a forfeiture of bail, it bears a heavy burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody, and in the absence of this showing, the trial court may determine that the forfeiture should stand." State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000).
Ultimately, "the decision to remit [a bail forfeiture] and the amount of remission lies essentially in the discretion of the trial court." Ventura, supra, 196 N.J. at 213; State v. Peace, 63 N.J. 127, 129 (1973). In exercising that discretion, a judge must assess the facts and weigh the "multitude of factors outlined in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and its progeny." Ventura, supra, 196 N.J. at 206. They include:
(a) whether the applicant is a commercial bondsman; (b) the bondsman's supervision, if any, of defendant during the time of his release; (c) the bondsman's efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the State because of the absence of defendant;
(f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; [and] (g) whether reimbursement of the expenses incurred in ...