NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2013
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-02-0134.
Richard R. Capone argued the cause for appellants.
Brendan J. Kavanagh argued the cause for respondent (Kavanagh & Kavanagh, LLC, attorneys; Mr. Kavanagh, on the brief).
Before Judges Lihotz and Hoffman.
American Surety Company (ASC), the corporate surety which posted a $200, 000 bail bond to assure the appearance of defendant Frederick Smith, appeals from the order granting it less-than-full remission of the declared forfeiture. ASC asserts that under the circumstances, the ninety-five percent remission allowed by the trial court constituted a mistaken exercise of discretion. We disagree and affirm.
The facts are not in dispute. On December 10, 2010, ASC posted a $200, 000 bond for Smith. After pleading to an accusation, Smith failed to appear for sentencing on May 20, 2011. The State delayed official notice to ASC of Smith's failure to appear and forfeiture of bail until August 16, 2011.
Immigrations and Customs Enforcement (ICE) in El Paso, Texas arrested Smith on June 11, 2011. Two days later, ICE contacted the Cumberland County Sheriff's Office, which declined to extradite him. Later, on December 30, 2011, defendant was arrested at an immigration checkpoint in Arizona, and returned to New Jersey.
ASC moved to set aside the forfeiture, which the county opposed. On June 20, 2012, Judge James Swift issued an opinion ordering 95% ($190, 000) remission of the $200, 000 bail to ASC and 5% ($10, 000) forfeiture. Judge Swift cited the State's failure to provide timely notice as "the predominate factor in the court's analysis, " stating that this "substantially alters" the suretyship arrangement. The judge also faulted the State for not having Smith extradited from Texas; however, the court used remittitur guidelines to remit less than the full bond citing ASC's lack of supervision and inadequacy of recapture efforts.
"[T]he decision to remit and the amount of the remission lies within the equitable discretion of the court to be exercised in the public interest." State v. de la Hoya, 359 N.J.Super. 194, 198 (App. Div. 2003).
The exercise of that discretion must, however, be informed by the standards articulated by the courts in State v. Hyers, 122 N.J.Super. 177, 180 (App. Div. 1973), and again in State v. Mercado, 329 N.J.Super. 265, 271 (App. Div. 2000), and must, moreover, be consistent with the policy concerns we identified in de la Hoya, 359 N.J.Super. at 199. Paramount among them is the necessity to provide a reasonable incentive to the surety to attempt the recapture of the non-appearing defendant and to assure that the ...