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State of New Jersey v. Michael Cain

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 29, 2012

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

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-08-1887.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2012

Before Judges Sabatino and Fasciale.

In this bail forfeiture case, Allegheny Casualty Company (the Surety) appeals from a January 27, 2011 order remitting $7,500 to the State.*fn1 The Surety contends that the amount of remission ordered by the judge was erroneous. We reverse, remand, and direct the judge to make the requisite findings of fact and conclusions of law.

The Surety posted bail in the amount of $75,000, which was forfeited when defendant failed to appear at a court hearing. The Surety contended that it commenced an extensive investigation to locate defendant from December 2009 to October 2010. Its investigators telephoned defendant, his family, and friends, conducted surveillance, placed hundreds of posters offering a reward for information leading to defendant's arrest, and traveled to South Carolina and then Georgia where the Surety's investigators apprehended defendant. Defendant was then extradited to New Jersey.

The Surety filed a motion to vacate the bail forfeiture and discharge the bail. At oral argument before the judge, the parties focused on the amount of remission sought by the Surety. The Surety contended that it "did everything [it] could [to find defendant] . . . [and that the Surety was] delayed by the State's inaction by failing to put the warrants in the system [to apprehend defendant]." The judge granted the motion to vacate the forfeiture, discharged the bail, ordered remission to the State, and stated:

The State has incurred some costs. The majority of the efforts, however, go to the result of the bonds company doing what had to be done . . . and getting the information so the [d]efendant could be transported. There will be a remitter of [$]7,500 to the State and [the] balance will go to the [Surety] company and the forfeiture will be vacated.

This appeal follows.

On appeal, the Surety argues that the judge failed to make the requisite findings of fact, and entered an erroneous order that was not in the interests of justice. The Surety specifically contends that the judge did not perform the necessary analysis pursuant to the bail forfeiture guidelines and applicable case law.

Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission are matters within the sound discretion of the trial judge. State v. Peace, 63 N.J. 127, 129 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007); State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000).

In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we observed that the decision to remit bail and the amount of the remission are equitable in nature, and that the judge should consider the following factors:

(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; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.

The Administrative Office of the Courts promulgated Directive #13-03, that includes a set of guidelines (the Guidelines) for the handling of requests for remission from bail forfeiture.*fn2 The initial version of the Directive was issued in December 2003, and reflected the legislation, court rules and case law governing admission to bail, forfeiture of bail, and application for remission of forfeiture. In November 2004, the Guidelines were reissued in the same form in Directive #13-04.

The Guidelines contained in Directive #13-04 and its several supplements are available to guide the discretion reposed in the trial judge and reflect the accumulated case law. The Guidelines and the Remission Schedules, however, are designed to be the starting point in any determination to remit a forfeiture and the amount of any remission. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006).

Here, in remitting $7,500 to the State, the judge did not sufficiently make findings of fact regarding the Hyers factors and the Guidelines. As a result, we reverse, remand, and direct the judge to make the requisite findings of fact and conclusions of law. We make no views regarding whether remission is warranted or the degree of any appropriate remission. We do not retain jurisdiction.


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