Opinion
DOCKET NO. A-1032-10T1
03-06-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY M. CRAWFORD, Defendant, and ALLEGHENY CASUALTY COMPANY, Defendant-Appellant.
Richard P. Blender, attorney for appellant. Brendan J. Kavanagh, Cumberland County Counsel, attorney for respondent (Mr. Kavanagh, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-10-961.
Richard P. Blender, attorney for appellant.
Brendan J. Kavanagh, Cumberland County Counsel, attorney for respondent (Mr. Kavanagh, on the brief). PER CURIAM
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 (f) will adequately satisfy the interests of justice.
[Id. at 213 (quoting Hyers, supra, 122 N.J. Super. at 180).]
In Ventura, the Court approved decisions of this court subsequent to Hyers that elaborate on the Hyers factors to account for efforts the surety has made to supervise the defendant prior to the defendant's failure to appear, State v. de la Hoya, 359 N.J. Super. 194, 196 (App. Div. 2003), and to account for the role, or lack thereof, played by a surety in the return of a fugitive that is accomplished by law enforcement officers rather than the surety, Mercado, supra, 329 N.J. Super. at 267-68. Ventura, supra, 196 N.J. at 213-14; see id. at 215-16 (discussing the guidelines issued by the Administrative Office of the Courts (AOC) to guide trial courts deciding motions to remit bail forfeitures that also address the surety's efforts); Remittitur Guidelines, Oct. 9, 2007, supplement to Administrative Directive # 13-04.
In this case, the second of the three AOC guidelines, "Remission Schedule 2," applies because defendant did not commit a crime while a fugitive, and he had been returned to custody when Allegheny filed its motion to remit the forfeiture. Where, as here, the defendant has been a fugitive for about six months, Schedule 2 calls for a remission of between twenty to seventy-five percent of bail depending on the extent of the surety's efforts to supervise and recapture. Remittitur Guidelines, supra, Remission Schedule 2, "Minimal Remission" and "Partial Remission" (emphasis added). See State v. Toscano, 389 N.J. Super. 366, 373-75 (App. Div. 2007) (discussing the structure of the guidelines, the relevance of efforts and flexibility in selecting a starting point).
Accepting the trial court's findings as to Allegheny's non-existent efforts to supervise and its minimal, delayed and unsuccessful efforts to return defendant to custody during the months that lapsed between his failure to appear and his arrest by the police, the judge did not abuse his discretion in granting a remission of only thirty percent of the $5000 bail. The judge was not required to assign great weight to the confusion in the mailing of the notice of forfeiture because the judge could reasonably attribute the bail agency's ignorance of Crawford's failure to appear to the agency's poor effort to perform its fundamental obligation, that is, having defendant appear in court. Moreover, there is no evidence that this bail agency provided even minimal assistance leading to defendant's apprehension after it was informed of his failure to appear. Given the scant evidence the agency produced to establish that a more substantial remission was appropriate, an amount at the lower end of the range is consistent with the principles articulated in Hyers, Mercado and de la Hoya and approved in Ventura.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION