Opinion
DOCKET NO. A-1254-12T1
03-27-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DARRELL THOMAS, Defendant, and INTERNATIONAL FIDELITY INSURANCE COMPANY, Defendant-Respondent.
Kenneth W. Thomas argued the cause for appellant, City of South Amboy (Lanza & Lanza, LLP, attorneys; Mr. Thomas of counsel and on the brief). Richard P. Blender argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 17-2012.
Kenneth W. Thomas argued the cause for appellant, City of South Amboy (Lanza & Lanza, LLP, attorneys; Mr. Thomas of counsel and on the brief).
Richard P. Blender argued the cause for respondent. PER CURIAM
This is a bail forfeiture case. Appellant City of South Amboy appeals from an order entered by the Law Division on October 18, 2012, in which the court declared that "bail forfeitures are vacated and the bonds exonerated." We reverse and remand for further proceedings.
I.
The appeal arises from the following facts. On a date prior to September 2, 2009, defendant Darrell Thomas was arrested and charged with burglary, N.J.S.A. 2C:18-2(a)(1), and hindering apprehension, N.J.S.A. 2C:29-3(b)(4). On September 2, 2009, Thomas was released on two bail bonds underwritten by respondent International Fidelity Insurance Company (International): $30,000 for the burglary, and $694 for the hindering apprehension.
Aaron Bail Bonds acted as the agent for International, and undertook to supervise and keep track of the whereabouts of Thomas after he was released pursuant to the bail bonds.
On September 24, 2009, Thomas failed to appear in the South Amboy municipal court regarding the hindering apprehension charge, and the bail was forfeited on November 2, 2009. Notice of the forfeiture was given to International on November 3, 2009.
On a date in December 2009, Thomas failed to appear in the same municipal court regarding the burglary, which by that time had been amended to the disorderly persons charge of criminal trespass, N.J.S.A. 2C:18-3(a). Bail was forfeited on December 16, 2009, and notice of the forfeiture was given to the surety's agent the next day.
Eight days later, on December 24, 2009, Thomas was apprehended by a private investigator hired by International's agent, and surrendered to the police. The record does not indicate any further proceedings against Thomas in the South Amboy municipal court.
In a May 16, 2012 certification, Michael Cosgrove, an employee of Aaron Bail Bonds, stated that Thomas was surrendered to the "Perth Amboy Police Department." In a January 4, 2010 certification, American's attorney stated that Thomas was apprehended and surrendered to the "South Amboy Police Department." Although the identity of the police department to which Thomas was surrendered is not material to this appeal, this discrepancy is emblematic of the somewhat lackadaisical approach taken by the surety in this matter.
On January 4, 2010, two motions were filed in the South Amboy municipal court on behalf of American Reliable Insurance Company (American) seeking to vacate the forfeiture of the two bail bonds that had been posted for Thomas. In support of its motions, American submitted a four-paragraph certification of its attorney, which provided hearsay information about Thomas's bail supervision, the surety agent's post-forfeiture expenditures and investigation, and the apprehension of Thomas. All of the information in the certification was based upon second-hand knowledge violative of Rule 1:6-6.
The record is silent regarding the relationship, if any, between respondent International and American.
For reasons that are unexplained, the motions were not considered by the municipal court for more than two years. Finally, on February 7, 2012, a hearing was held in the South Amboy municipal court on American's motions, along with similar motions for remission regarding unrelated defendants. When the court called the Thomas matter, American's counsel told the court, "[q]uite frankly, I couldn't find my file." He immediately requested both an adjournment and permission to supplement the record in light of the circumstance that "[t]his is the first court date." American's counsel stated,
Well, again, Judge, I just want an opportunity to go through my client[']s [file] and submit the proper certifications. Like I said, I filed this two years ago. This is the first listing that it has ever been given. I couldn't even find the file on it.
It involves a substantial amount of money, $30,000. My client did surrender the defendant. Obviously, I would like the opportunity to go back and supply the Court with some additional certifications.
The municipal judge responded as follows:
Counsel, this is an old case. We are disposing of these. This is your Special Session. We are going to deny the request, the motion for the reinstatement is denied.An order memorializing the action was entered on March 8, 2012.
On March 21, 2012, American filed a notice of appeal in the Law Division, but failed to properly include a statement regarding the nature of the record that was created in the municipal court, and neglected to include a certification of compliance with several transcript-related Rules.
On May 4, 2012, South Amboy filed a motion to dismiss American's Law Division appeal due to its "failure to comply with the court rules and prosecute." In response to the motion American's counsel submitted a certification indicating that on March 21, 2012, he had "sent a letter to the court reporter requesting a copy of the transcript of the hearing held in the Municipal Court." After being advised that the letter was not received, another letter was sent, with a "replacement check in the amount of $250.00," on May 11, 2012. The copy of the municipal court transcript that is part of our appellate record indicates that it was prepared on June 13, 2012.
Among other things, South Amboy claimed that American violated Rules 2:5-3(c); 2:5-3(d); 3:23-2; and 3:23-3.
The Law Division did not address South Amboy's motion for several months, waiting until the de novo trial on the merits. On October 9, 2012, after permitting oral argument on South Amboy's motion to dismiss, the court rejected the municipality's "he didn't dot every 'I'" argument, and concluded that "in the interest of justice" it would hear the appeal on its merits regardless of any flaws in the perfection of the appeal.
At a later point in the proceedings, the Law Division judge declared, "[a]ll of the other procedural problems that have been used as arguments by the town . . . to deny the surety . . . [its] return of [its] money is background noise."
Turning to the merits, South Amboy argued that the appellate record consisted only of American's counsel's certification, which was not competent evidence to support the vacation of the bail forfeitures. American's attorney argued that the municipal court's two-year delay in hearing the remission motions, its refusal to grant an adjournment, and its denial of permission to supplement the motion record warranted the Law Division's allowance of the supplemental certification of Cosgrove, which had already been filed with that court in May 2012.
According to American's counsel, because of the high volume of bail remission motions filed by his law office, he purged files after two years, which purportedly explained why he could not find his file at the time of the municipal court proceedings.
This certification's caption, for the first time, introduced International as a party in the action. The record is silent as to how and why this substitution occurred.
Although the Law Division did not explicitly grant American permission to supplement the record, it did consider the facts that were provided by Cosgrove's certification. After canvassing the facts and circumstances, the court found that American "satisfied the requirements of the law with respect to return of forfeited bail money," and reversed the municipal court's forfeiture order. The Law Division's memorializing order was entered on October 18, 2012. This appeal followed.
II.
Our scope of review of the Law Division is limited, and revolves around "whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), certif. granted, 213 N.J. 45 (2013). Review of municipal court decisions in the Law Division is de novo on the record, Rule 3:23-8(a), but allows for supplementation in limited circumstances. Ibid. The judge in a trial de novo must "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent factfinding function . . . ." Ibid. (citations omitted). While deference is owed to the Law Division for its factual conclusions, we owe no such deference to it or the municipal court with respect to legal determinations or conclusions reached on the basis of the facts. See State v. Handy, 206 N.J. 39, 45 (2011) (stating "appellate review of legal determinations is plenary").
Bail forfeiture and the setting aside of such forfeiture is regulated by Rule 3:26-6. State v. Peace, 63 N.J. 127, 129 (1973). "A party seeking to set aside or remit a forfeiture bears the burden of proving that 'it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest.'" State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000) (quoting State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)).
"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." State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003); 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 onus placed on commercial sureties is not so great as to risk the
impairment of a defendant's realistic right to post pretrial bail.
[Harmon, supra, 361 N.J. Super. at 254.]
Clearly, a bail forfeiture may be set aside by a court where enforcement "is not required in the interest of justice." R. 3:26-6(b). A court may order a remittitur, in whole or in part, subject to an array of principles found in decisional law and the judiciary's guidelines. See, e.g., State v. Ventura, 196 N.J. 203, 213-16 (2008); N.J. Administrative Office of the Courts, Supplement to Directive #13-04, Further Revised Remittitur Guidelines (Nov. 17, 2004) (Nov. 12, 2008), http://www.judiciary.state.nj.us/directive/2008/dir_13-04_Supplement_11_12_08.pdf (Guidelines). Central to the grant of a discretionary remittitur is the proper consideration of all "factors and policies that are relevant to the equitable exercise of [the court's] discretion." State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007).
The Guidelines list the following pertinent factors as a starting point:
1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant. . . .
2. Whether the applicant is a commercial bondsman.
3. The degree of surety's supervision of the defendant while he or she was released on bail.
4. The length of time the defendant is a fugitive.
5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture.
6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.
7. The defendant's commission of another crime while a fugitive.
8. The amount of the posted bail. In determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its amount.
[Guidelines, supra, at 1-2 (citations omitted).]
The record does not contain any analysis by the Law Division of these or the Hyers factors. From what we can glean, the court employed an unspecified "balancing test," and tried to "do what is fair and just in these circumstances." We do not criticize the Law Division for this salutary goal; however, we cannot discern how it arrived there. See R. 1:7-4(a) (requiring findings of fact and conclusions of law to facilitate understanding by the parties and appellate courts).
In like vein, the record does not explain why the Cosgrove certification was considered as part of the de novo review. Clearly, the Law Division was understandably troubled by the long delay in processing American's forfeiture remission motions by the municipal court, as are we. It is conceivable that this impelled the Law Division to allow American to supplement the record because "the municipal court erred in excluding evidence," Rule 3:23-8(a)(1), but it never said so. We will not speculate on the court's reasons for exercising its discretion to allow the Cosgrove certification to become part of the de novo record.
On remand, the Law Division must explain why it expanded the record to allow the Cosgrove certification, and then articulate the reasons for deciding American's appeal. In so doing, the Law Division is to reconsider American's appeal in light of all appropriate factors of our bail forfeiture and remission jurisprudence. We do not direct a particular outcome, and entrust to the Law Division's principled discretion the ultimate result.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
South Amboy's argument that the Law Division erred in not dismissing American's timely appeal is meritless. R. 2:11-3(e)(1)(E).
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION