SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5539-01T1
A-5540-01T1
A-5812-01T1
A-1712-02T1
A-1714-02T1
A-1716-02T1
A-1717-02T1
A-1814-02T1
A-2054-02T1
A-2055-02T1
A-2056-02T1
A-2059-02T1
A-2060-02T1
A-2062-02T1
A-2557-02T1
A-0339-01T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID HARMON,
Defendant,
and
HIGHLANDS INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD LEVINS,
Defendant,
and
HIGHLANDS INSURANCE COMPANY,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRED GILBERT,
Defendant,
and
ALLEGHENY MUTUAL CASUALTY CO.,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JACOB MURRAY, JR.,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REFAT MOHAMMED,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN GLENN,
Defendant,
and
NORTHWESTERN NATIONAL CASUALTY
COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL PEREZ,
Defendant,
and
NORTHWESTERN NATIONAL CASUALTY
COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHELLE VELEZ,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARIF COLEMAN,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES PAGE,
Defendant,
and
NORTHWESTERN NATIONAL CASUALTY
COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR RIVERA,
Defendant,
and
NORTHWESTERN NATIONAL CASUALTY
COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAMONT WALKER,
Defendant,
and
SIRIUS AMERICA INSURANCE CO.,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLIFFORD TYSON,
Defendant,
and
SIRIUS AMERICA INSURANCE CO.,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR FELICIANO,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRANCE JOHNSON,
Defendant,
and
NORTHWESTERN NATIONAL CASUALTY
COMPANY,
Defendant-Appellant.
______________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABRAHAM MATOS,
Defendant,
and
LEGION INSURANCE COMPANY,
Defendant-Appellant.
Argued May 28, 2003 - Decided June 13, 2003
Before Judges Pressler, Ciancia and Hoens.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, W-2000-002395,
W-2001-000290, 99-2-400-I, 00-2651-I, 00-5-1607-I,
02-02-00728-I, 2-2-569-I, 01-02-0456-I, 00-05-01713-I,
01007451002, 02000027001, 02001256001, 02-02-00793-I,
00-09-2993-I, 02-04-1173-I and 01-01-000-63-I.
Samuel M. Silver argued the cause for appellant
(Mr. Silver and Ted Del Guercio, III, on the brief).
Donna M. Whiteside, Assistant Camden County Counsel,
argued the cause for respondent (Frederick J. Schuck,
County Counsel, attorney; Ms. Whiteside, on the
brief).
PER CURIAM
These are sixteen bail forfeiture appeals in which the surety
appeals from an order either denying its motion for remission
following the entry of default judgment of forfeiture against it or
remitting a portion of the forfeited bail asserted by the surety to
have been insufficient under the circumstances. All these appeals
are from orders entered in Camden County, some following remands by
this court, and we consolidate them for purposes of this opinion.
For the reasons we expressed in State v. de la Hoya,
359 N.J.
Super. 194 (App. Div. 2003), we have elected to exercise original
jurisdiction pursuant to R. 2:10-5 in order to finally resolve
these disputes rather than again remanding to the trial court.
As we said in de la Hoya, supra, 359 N.J. Super. at 198:
The framework of the law governing
forfeiture and remission of bail is set forth
in R. 3:26-6, as relaxed by Supreme Court
orders entered on November 1, 2000, and
June 11, 2002. In brief, R. 3:26-6(a)
provides that upon the breach of a condition
of bail, the court on its own motion shall
declare a forfeiture, and absent an objection
by the surety seeking to set the forfeiture
aside, a judgment of forfeiture shall be
entered within 75 days after the declaration
of forfeiture. Paragraph (b) permits the
court to "direct that a forfeiture be set
aside if its enforcement is not required in
the interest of justice upon such conditions
as it imposes." And paragraph (c) requires
the judgment of forfeiture to be entered
following the prescribed 75 days if an
objection has not been made, but further
authorizes the court, after judgment is
entered, to remit the bail to the surety in
whole or in part "in the interest of justice."
We again start with the proposition that the decision to remit
bail and the amount of remission are matters within the sound
discretion of the trial court to be exercised in the public
interest. See, e.g., State v. Peace,
63 N.J. 127, 129 (1973);
State v. de la Hoya, supra, 359 N.J. Super. at 198. 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 onus placed on
commercial sureties is not so great as to risk the impairment of a
defendant's realistic right to post pretrial bail. We also add
that the focus of the bail forfeiture procedure is the vindication
of the public interest and should not, therefore, be viewed as
primarily a revenue-raising technique for the public fisc.
With respect to the specific factors to be weighed within the
framework of the policy concerns, the primary consideration, as we
held in Mercado, supra, 329 N.J. Super. at 271, is whether the
surety has made reasonable efforts under the circumstances to
effect the recapture of the fugitive defendant. We also regard as
particularly significant the surety's supervision of the defendant
while he is released on bail. The other Hyers factors include the
corporate status of the surety, the length of time during which the
defendant is a fugitive, the prejudice to the State and the
expenses incurred by it resulting from the fugitive's non-
appearance, recapture, and enforcement of the forfeiture, and
whether reimbursement of the State's expenses will adequately
satisfy the interests of justice. Hyers, supra, 122 N.J. Super. at
180. The detriment to the State also includes, as held by Peace,
supra, 63 N.J. at 129, an unquantified "intangible element of
injury to the public interest in almost any case where a defendant
deliberately fails to make an appearance in a criminal case." And,
as we noted in de la Hoya, a defendant's commission of another
crime while a fugitive is a significant element of the State's
intangible injury. See also State v. Fields,
137 N.J. Super. 79
(App. Div. 1975).
In exercising our original jurisdiction our task is to apply
these standards and policy concerns to each of the cases before us.
Before addressing the common elements in these cases, we hold first
that where defendant remains a fugitive when the remission motion
is made, the essential undertaking of the surety remains
unsatisfied, and the denial of any remission is entirely
appropriate. In two of the appeals before us, State v. Abraham
Matos, A-339-01T1, and State v. James Page, A-2055-02T1, that
appears to have been the fact. In both cases, the motion for
remission was denied in full, and we affirm. We note, however,
that if the defendant in each of these appeals is recaptured within
four years of the date of his original non-appearance, January 9,
2001, in the case of Matos and May 3, 2002, in the case of Page,
the surety may renew its motion. See N.J.S.A. 2A:162-8.
With respect to all the other appeals before us, it is not
disputed that the surety failed to supervise and monitor the
defendant following his release on bail. To be sure, there are
affidavits of surety personnel submitted on some of its motions
asserting that the surety maintains a monitoring policy that
requires weekly reporting by the defendant. But it is equally
clear that that policy has been as totally disregarded by the
surety as it has been by the defendant. The other common element
is the perfunctory nature, except in one case to which we hereafter
refer, of the surety's attempt to recapture the fugitive after
receiving notice of forfeiture by virtue of non-appearance. The
surety did not assign a recovery agent or other investigator to
locate and apprehend the defendant. Rather, it relied exclusively
on eventual telephone inquiries of jails to determine if the
defendant had been rearrested, sometimes making the call on
information provided by the indemnitor on the bond. In some cases
it promptly advised the prosecutor or other county authorities so
that appropriate detainers against the defendant could be lodged,
and in other cases, it apparently assumed that the county
authorities would eventually obtain that knowledge from other
sources. In some of these cases, the defendant committed a new
offense while a fugitive and in some cases not. Finally, the
County did not assert any expenditure by it of time, effort or
money in seeking to recapture the defendant and enforcing the
forfeiture. While it failed to do so on the representation that
quantification of these expenditures was impractical, we are
nevertheless satisfied that the intangible-injury category should
appropriately take into account the county's employment of a
fugitive squad, the expenses resulting therefrom, and the county's
efforts in enforcing forfeiture.
Because the recapture of the fugitive defendant and his
ultimate appearance before the court constitute the essence of the
surety's undertaking, we are satisfied that even if the surety's
efforts in the recapture were minimal, the fact of the recapture
must be accorded weight in terms of implementation of the policies
we have identified. This is particularly so where the time lapse
between non-appearance and recapture is not inordinately long and
the defendant has not committed a new crime during his fugitive
period. We have determined that in these circumstances a remission
of twenty percent of the posted bail is fair to the competing
interests of the surety, the indemnitor who has posted collateral,
defendants' general interest in the availability of commercial
bail, and the interests of the State. There are seven cases before
us that fit into this category, as follows:
In State v. Jacob Murray, Jr., A-1712-02T1, the surety posted
bail in the amount of $10,000 on September 1, 1999. Defendant
failed to appear at a scheduled court event on March 24, 2000. A
warrant was issued on that date, and a forfeiture of bail declared.
The warrant was executed by county officials on September 11, 2000,
some six months later. Defendant was charged with no new offense
in the interim. The surety learned of the rearrest, in which it
had played no part, and moved for remission. The motion was denied
in full. We reverse and remand for an order remitting to the
surety $2,000 of the posted bail.
In State v. John Glenn, A-1716-02T1, the surety posted bail in
the amount of $25,000. Defendant failed to appear at a scheduled
court event on March 15, 2002. A warrant was issued on the same
date and a forfeiture of bail declared. On June 25, 2002, the
indemnitor advised the surety that defendant had been rearrested on
June 11, 2002, and was lodged in the Camden County jail. He was
charged with no new offense committed during the three months he
was a fugitive. The surety moved for remission and the judge
granted the motion to the extent of a remission of $5,000. We
affirm.
In State v. Michael Perez, A-1717-02T1, the surety posted bail
in the amount of $20,000 on November 17, 2001. Defendant failed to
appear at a scheduled court event on March 26, 2002, and a warrant
was issued on that date and a forfeiture of bail declared. On
July 18, 2002, the surety's agent discovered that defendant had
been incarcerated in Philadelphia from December 5, 2001, until
June 20, 2002, when he was transferred to an in-patient drug-abuse
rehabilitation facility. The surety's motion for remission was
denied in full. We note that if the surety had supervised or
monitored defendant as it should have, it would have learned long
before the non-appearance that defendant was incarcerated and would
likely have been entitled to exoneration. See State v. Erickson,
154 N.J. Super. 201 (App. Div. 1977). Its failure to have done so
and to have enabled the State to lodge a detainer prejudiced not
only the State's interests and the interests of administration of
the criminal justice system but also its own. Under the
circumstances, we are satisfied that the surety is entitled to a
remission of $4,000 of the posted bail, and reverse and remand for
entry of a conforming order.
In State v. Michelle Velez, A-1814-02T1, the surety posted
bail in the amount of $15,000 on September 6, 2000. Defendant
failed to appear at a scheduled court date on March 2, 2001. A
warrant was issued and forfeiture of bail declared on that date.
The surety received information from the indemnitor on February 20,
2001, prior to the date of defendant's non-appearance, that he was
incarcerated in Florida. There is no indication that the surety
ever followed-up this information and eventually law enforcement
authorities located him in Florida and returned him to New Jersey.
As in the case of Michael Perez, appropriate and prompt action by
the surety might well have entitled it to exoneration. It did
nothing, however, needlessly prejudicing the State and the
administration of justice. In these circumstances, we are
satisfied that a remission of $3,000 is appropriate and reverse the
order denying remission in full.
In State v. Sharif Coleman, A-2054-02T1, the surety posted
bail in the amount of $50,000. Defendant failed to appear at a
scheduled court event on June 16, 2000, and a warrant was issued
and a forfeiture of bail declared on that date. The surety
confirmed that defendant had been rearrested, apparently on the
warrant issued when he failed to appear, on September 5, 2000, less
than three months later. He was charged with no new offense
committed during that period. The surety's motion for remission
was denied in full. We reverse and remand for entry of an order
remitting to the surety $10,000 of the posted bail.
In State v. Clifford Tyson, A-2060-02T1, the surety posted
bail in the amount of $40,000 on May 21, 2002. Defendant failed to
appear at a scheduled court event on July 12, 2002. A warrant was
issued and a forfeiture of bail declared on that date. A month
later, on August 13, 2002, the surety learned that the defendant
had been thereafter rearrested and was lodged in the Camden County
jail. He was not charged with a new offense while a fugitive. The
surety's motion for remission was granted to the extent of $2,000.
We reverse and remand for entry of an order remitting to the surety
$8,000 of the posted bail.
In State v. Terrance Johnson, A-2557-02T1, the surety posted
bail in the amount of $5,000. Defendant failed to appear at a
scheduled court event on May 3, 2002, and a warrant issued and a
forfeiture of bail declared on that date. The warrant was executed
on August 22, 2002. The surety determined on October 1, 2002, that
the new court date for October 28, 2002 was set. There is no
indication that defendant thereafter was in fugitive status. The
surety's motion for remission was denied in full. We reverse and
remand for entry of an order remitting to the surety $1,000 of the
posted bail.
In addition to the foregoing seven cases, there is an
additional one, State v. Hector Feliciano, A-2062-02T1, in which
the surety neither monitored nor supervised defendant nor made any
affirmative attempts to locate and recapture him following his non-
appearance and where it also appears that defendant was not charged
with a new crime while a fugitive. The distinguishing fact in this
case is the unacceptably long period of time during which he was a
fugitive. The surety had posted bail in the amount of $200,000,
and defendant failed to appear at a scheduled court event on
November 13, 2000. It appears that the surety took no affirmative
steps prior to determining in September 2002, nearly two years
later, that defendant had been reincarcerated on August 13, 2002.
We regard the length of time during which defendant was in fugitive
status as significant, and therefore determine that a balancing of
all the competing interests cannot warrant a remission in excess of
ten percent. The surety's motion for remission was denied in full.
We reverse and remand for entry of an order remitting to the surety
$20,000 of the posted bail.
The next category of cases we address is that in which the
defendant was charged with committing a new offense while a
fugitive. In this category as well the surety did not supervise or
monitor defendant while released on bail and did not itself make
any efforts to recapture him upon receipt of notice of non-
appearance and bail forfeiture. Nevertheless, we are satisfied
that the fact of recapture constitutes a fulfillment, at least in
some small part, of the surety's objective obligation that
defendant be produced in court entitling the surety to some small
remission, which we fix in these cases at ten percent of the posted
bail. There are five such cases.
In State v. David Harmon, A-5539-01T1, the surety posted bail
in the amount of $10,000. Defendant failed to appear at a
scheduled court event on June 13, 2001. A bench warrant was issued
a forfeiture of bail declared on that date. He was arrested on new
charges on October 9, 2001. The surety's motion for remission was
denied in full. We reverse and remand for entry of an order
remitting to the surety $1,000 of the posted bail.
In State v. Fred Gilbert, A-5812-01T1, the surety posted bail
in the amount of $50,000 on June 16, 1998. Defendant failed to
appear at a scheduled court date on May 17, 1999. A warrant was
issued and a forfeiture of bail declared on that date. Defendant
was arrested in Georgia by police authorities, and eventually
extradited to New Jersey. The surety's motion for remission was
denied in full. We reverse and remand for entry of an order
remitting to the surety $5,000 of the posted bail.
In State v. Refat Mohammed, A-1714-02T1, the surety posted
bail in the amount of $125,000 on February 20, 2000. Defendant
failed to appear at a scheduled court event on June 9, 2000. A
bench warrant was issued and a forfeiture of bail declared on that
date. On September 20, 2000, the surety learned that defendant was
incarcerated in a Philadelphia jail, having been arrested on
charges of a crime committed while a fugitive. The surety's motion
for remission was denied in full. We reverse and remand for entry
of an order remitting to the surety $12,500 of the posted bail.
In State v. Hector Rivera, A-2056-02T1, the surety posted bail
of $22,500. Defendant failed to appear at a scheduled court event
on April 19, 2002. A bench warrant was issued and a forfeiture of
bail declared on that date. In September the surety learned that
defendant had been rearrested on a disorderly persons simple
assault charge. The surety's motion for remission was denied in
full. We reverse and remand for entry of an order remitting to the
surety $2,250 of its posted bail.
In State v. Lamont Walker, A-2059-02T1, the surety posted bail
in the amount of $75,000. Defendant failed to appear at a
scheduled court event on June 28, 2002. A bench warrant was issued
and forfeiture of bail declared on that date. The surety received
information from the indemnitor that defendant had been rearrested
in Pennsylvania on a new charge on July 30, 2002. The surety's
motion for remission was denied in full. We reverse and remand for
entry of an order remitting to the surety $7,500 of the posted
bail.
Finally, there is one case whose special circumstances require
deviation from the categorizations we have made and warrant some
adjustment of our remission calculus. In State v. Reginald Levins,
A-5540-01T1, the surety posted bail in the amount of $12,500.
Defendant failed to appear at a scheduled court event on July 13,
2001. A bench warrant was issued and a forfeiture of bail declared
on that date. On August 27, 2001, the surety's agent apprehended
defendant in Philadelphia, and turned him over to Pennsylvania
authorities, receiving a so-called body receipt. The problem is
that the surety's agent did not notify any authority in New Jersey
of defendant's arrest in Philadelphia. Consequently no detainer
was lodged against him. Eventually, the New Jersey authorities
learned of defendant's whereabouts and commenced extradition
proceedings, which were still pending at the time of the hearing on
the surety's motion for remission. We are satisfied that had the
surety's agent advised the Camden County Prosecutor of his
recapture and turnover of defendant in Philadelphia, a detainer
would have been promptly lodged and the surety could therefore be
deemed to have significantly, although obviously not entirely,
fulfilled its obligation on the bond. The surety, however, offers
no explanation of its agent's failure to return defendant to New
Jersey or to have notified the Prosecutor of the turnover to
Pennsylvania. Substantial time therefore elapsed before defendant
could be returned to New Jersey and he was still regarded as a
fugitive during this time. Under these circumstances, we conclude
that a remission of fifty percent is appropriate based on the
surety's prompt recapture and defendant's not having apparently
committed a new offense while a fugitive. We therefore reverse the
order denying the surety's remission motion in full and remand for
entry of an order remitting to the surety $6,250 of the posted
bail.
To summarize our disposition of each of the sixteen cases
before us:
State v. David Harmon, A-5539-01T1. The order denying
remission in full is reversed, and we remand for entry of an order
remitting $1,000.
State v. Reginald Levins, A-5540-01T1. The order appealed
from is reversed, and we remand for entry of an order remitting
$6,250.
State v. Fred Gilbert, A-5812-01T1. The order appealed from
is reversed, and we remand for an order remitting $5,000.
State v. Jacob Murray, Jr., A-1712-02T1. The order appealed
from is reversed, and we remand for entry of an order remitting
$2,000.
State v. Refat Mohammed, A-1714-02-T1. The order appealed
from is reversed, and we remand for entry of an order remitting
$12,500.
State v. John Glenn, A-1716-02T1. The order appealed from
remitting $5,000 is affirmed.
State v. Michael Perez, A-1717-02T1. The order appealed from
is reversed, and we remand for entry of an order remitting $4,000.
State v. Michelle Velez, A-1814-02T1. The order appealed from
is reversed, and we remand for entry of an order remitting $3,000.
State v. Sharif Coleman, A-2054-02T1. The order appealed from
is reversed, and we remand for entry of an order remitting $10,000.
State v. James Page, A-2055-02T1. The order appealed from
denying remission is affirmed.
State v. Hector Rivera, A-2056-02T1. The order appealed from
is reversed, and we remand for entry of an order remitting $2,250.
State v. Lamont Walker, A-2059-02T1. The order appealed from
is reversed, and we remand for entry of an order remitting $7,500.
State v. Clifford Tyson, A-2060-02T1. The order appealed from
is reversed, and we remand for an order remitting $8,000.
State v. Hector Feliciano, A-2062-02T1. The order appealed
from is reversed, and we remand for an order remitting $20,000.
State v. Terrance Johnson, A-2557-02T1. The order appealed
from is reversed, and we remand for an order remitting $1,000.
State v. Abraham Matos, A-339-01T1. The order denying
remission is affirmed.