March 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES NORRIS, III, DEFENDANT, AND SAFETY NATIONAL CASUALTY CORP., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-11-1894.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 14, 2012
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Safety National Casualty Corporation (Safety) appeals from a July 7, 2011 order entered by the Law Division forfeiting $6,000 of the $10,000 bond posted on behalf of defendant James Norris, III. Safety contends the trial court abused its discretion by forfeiting sixty percent of the bond under the case law, State's Remittitur Guidelines (Guidelines),*fn1 and public policy considerations. Safety requests we reverse and remand to reconsider the amount of the remission. We are not persuaded by Safety's arguments and affirm.
The facts are not in dispute. In September 2007, Safety, a commercial surety, posted a $10,000 bail bond for defendant through its bail bond company, Bail Monster Bail Bonds, LLC. No evidence was presented that Safety engaged in any monitoring efforts. Defendant failed to appear at a status conference in court in Middlesex County as required on March 23, 2009, at which time bail was forfeited and a bench warrant was issued for his arrest. Safety received notice of the bail forfeiture the next day. See R. 3:26-6(a).
No evidence of any apprehension efforts was presented by Safety. According to the certification of Lieutenant Irma Alvarez of the Middlesex County Prosecutor's Fugitive Task Force (MCPO-FTF), they were notified by the Salem, Oregon Police Department on March 30, 2009, that defendant was arrested on the Middlesex County bench warrant and remanded to the Marion County jail. Defendant's incarceration was not the result of the commission of new offenses while a fugitive. According to Lt. Alvarez, based on this information, the MCPO-FTF faxed the bench warrant as a detainer on April 1, 2009, contacted North Atlantic Extraditions, an agency contracted by the County of Middlesex to conduct extraditions, and defendant was extradited to the Middlesex County jail on May 5, 2009. Defendant appeared for a status conference and entered a guilty plea on May l8, 2009. Lt. Alvarez further certified:
Based on the foregoing, substantial time was spent to locate and monitor the defendant's status, including, but not limited to: processing the bench warrant, entering the warrant information into N.C.I.C., preparing the formal detainers, approval for the extradition proceedings, arrangements with North Atlantic Extraditions to conduct the extradition, contacts with various law enforcement authorities including, the Salem Police Department and the Mari[o]n County Jail to learn of his apprehension in order to produce him to Middlesex County. This was a daily and on going process for 2 months from the date of his failure to appear, and, accordingly, I cannot accurately calculate the number of hours. Additionally, to the best of my knowledge, the file does not indicate that the Middlesex County Prosecutor's Office was ever contacted by the surety, regarding the defendant's arrest by the Salem Police Department or his incarceration at the Mari[o]n County Jail, prior to my discovery of this information through the law enforcement authorities.
On April 14, 2009, Safety filed a motion to stay the entry of judgment, vacate the bail forfeiture, and exonerate itself from the bond. Two years later, Safety filed a brief. Following opposition and oral argument on June 29, 2011, Judge Diane Pincus issued a letter opinion and order on July 7, 2011, directing a 60% forfeiture, or $6,000. The court found Remission Schedule 2 of the Guidelines to be applicable as defendant was not a fugitive when the remission motion was made and he did not commit a new crime while a fugitive. Having analyzed, explained, and weighed the policy concerns as to whether to remit and the amount to remit, State v. Ramirez, 378 N.J. Super. 355, 364-66 (App. Div. 2005), and State v. de la Hoya, 359 N.J. Super. 194, 198-99 (App. Div. 2003), and the eight factors contained in the Guidelines, Judge Pincus found the Surety provided "minimal" or no supervision while defendant was out on bail and failed to engage in immediate substantial efforts to recapture defendant, and thus concluded the surety was entitled to a forty percent remission.
The judge noted that Safety failed to present any certifications or proof whatsoever as to the degree of its supervision of defendant while he was released on bail or of its efforts to effectuate recapture of defendant upon receipt of the March 24, 2009 notice of bail forfeiture. Judge Pincus explained her findings on the latter factor as follows:
By April l0, 2009, the bondsman ascertained that defendant was lodged in Marion County Jail in Oregon and confirmed that the defendant had been arrested and taken into custody on March 29, 2009. Given that only five days passed between the defendant's failure to appear and his incarceration in Oregon, the Surety argues that it was not reasonable for it to have made substantial efforts to locate the defendant. No certification was attached to the Surety's brief. Furthermore, the Surety failed to submit any proof in the form of contact sheets, surveillance logs, and billing statements to substantiate its claims that an investigation to locate the defendant immediately commenced upon notification of the bail forfeiture. This Court notes that although the Surety only had a short period of time between the issuance of the bench warrant and the defendant's apprehension, the Surety still could have made some effort to recapture the defendant and the Surety failed to do so. Accordingly, this Court finds that the Surety did not make a reasonable effort under the circumstances to effect the recapture of the fugitive defendant.
As to factor five, the prejudice to the State and the expenses it incurred as a result of defendant's non-appearance, recapture, and enforcement of the forfeiture, the judge noted that "[n]o bill was provided to the Surety for extradition." Nonetheless, the judge explained that Lt. Alvarez's certification established that "substantial time was spent and expenses subsequently incurred" in this regard, and provided examples of the type of services performed by the MCPO-FTF. Taking into consideration that defendant was at large for less than a week, Judge Pincus concluded that, after the State was reimbursed for its expenses, a forfeiture of 60%, or $6,000 of the $10,000 posted bail, was appropriate, and entered an order to that effect. This appeal ensued.
Safety recognizes that we generally review a trial court's decision whether to remit bail and the amount of the remission under an abuse of discretion standard. See, e.g., State v. Ventura, 196 N.J. 203, 213 (2008); State v. Peace, 63 N.J. 127, 129 (l973); de la Hoya, supra, 359 N.J. Super. at 198; State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000). It concedes it presented no evidence of pre-forfeiture monitoring or of its efforts to recapture defendant. Nonetheless, Safety argues the trial court abused its discretion in using the standard of "minimal remission" under Guideline 2. The surety argues the appropriate standard should have been "partial remission," a twenty-five percent forfeiture, because it engaged in "immediate substantial efforts to recapture the defendant." In support of this position, Safety states in its brief that it immediately began attempting to locate defendant upon receipt of the bail bond forfeiture notice and emphasizes that defendant was apprehended by Oregon authorities within days of his flight from New Jersey. He relies on our dicta in State v. Wilson, 395 N.J. Super. 221, 229 (App. Div. 2007), that it is relevant to any discretionary determination by a bail forfeiture judge that the State's failure to notify a surety when it locates a defendant securely incarcerated likely increases a surety's costs and deprives it of an early opportunity to seek to avoid bail forfeiture. Safety additionally emphasizes that the State did not quantify its costs, which it suggests were minimal considering the short period that defendant was a fugitive, and argues there was no prejudice to the State as a result of defendant's fugitive status. We disagree.
As Judge Pincus noted, Safety's brief contains unsubstantiated statements. It presented no evidence whatsoever of its attempts to recapture defendant. Our opinion in Wilson, which dealt with bail forfeitures in the context of out-of-state custody, is factually inapposite. There, the defendant was located by the State through the NCIC database in a Florida jail on March 29, three days after the notice of bail forfeiture was sent to the surety, and a detainer was lodged and defendant was awaiting extradition. Id. at 224. The State, however, failed to notify the surety or the court that the defendant had been found and was securely incarcerated, and a default judgment was entered on the bond on June ll. Id. at 224, 229. The surety eventually located the defendant through the use of its recovery agent on August 25, id. at 224, having unnecessarily incurred the expense. Here, defendant was not recaptured before Safety had notice of the bail forfeiture and it provided no evidence that it did anything to effectuate defendant's recapture, let alone everything necessary under the circumstances. See State v. Toscano, 389 N.J. Super. 366, 374-75 (App. Div. 2007); State v. Ruccatano, 388 N.J. Super. 620, 628 (App. Div. 2006). We have consistently held the "surety has the burden of proof, and it must provide the facts that favor remission based on its efforts." Toscano, supra, 389 N.J. Super. at 376. See also Mercado, supra, 329 N.J. Super. at 269-70. Here, Safety has failed to carry its burden.
We affirm the bail forfeiture order substantially for the reasons stated by Judge Pincus in her comprehensive written opinion. Based on our review of the record and applicable law, we are satisfied the judge performed the appropriate analysis and acted well within her discretion in using the threshold of a "minimal remission" of twenty percent. The judge then gave the surety the benefit of all doubt when she increased the remitted figure to 40% (60% forfeiture, or $6,000) in recognition of defendant's short duration at large. The State clearly incurred expenses as a result of defendant's flight to Oregon and the ensuing extradition, which were certified to in sufficient detail by Lt. Alvarez. These expenses need not be quantified and the State need not prove prejudice to justify a bail forfeiture. See State v. Korecky, 169 N.J. 364, 382 (2001).