New Jersey Case Laws
Click on the below to read New Jersey Case Laws for the following years:
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
New Jersey Case Law 2012
In State v. Arceo-Reyes, 2012 WL 2505739 (N.J.Super.A.D. July 2, 2012) the defendant fled to Mexico and was believed to be living there under the protection of a drug cartel. The surety sought remission of the bond. The bail agent testified as to monitoring the defendant and efforts to locate him in Mexico. The trial court denied any remission, and the surety appealed. The surety argued it relied on erroneous information from the state and that the state did not assist in recovery efforts. The Court reviewed the case law and Guidelines and thought that the surety was to blame for its own misfortunes including bonding out a drug dealer with known ties to Mexico. The Court found that granting the surety relief would “frustrate the primary purpose of bail and relieve the surety of the consequences of its own deficient efforts and bad judgment.” The Court affirmed denial of the surety’s motion to vacate the forfeiture.
In State v. Osorio, 2012 WL 1123581 (N.J.Super.A.D. April 5, 2012) the defendant was arrested on November 9, 2009, and ICE lodged a detainer against her. Without knowledge of the detainer, the surety posted its bond on November 21. The defendant was released from state custody and turned over to ICE on November 24. On December 9 she was deported to Columbia. When she failed to appear on March 1, 2010, the court forfeited the bond. The trial court denied the surety’s motion to vacate or remit the forfeiture because the defendant had not been returned, and the surety appealed. The Appellate Division held that the trial court was obligated to consider the required factors and Guidelines. Even though the defendant remained a fugitive, remission was possible and there were factors that the trial court had to consider. The Court reversed the judgment and remanded the case for reconsideration.
In State v. Cain, 2012 WL 1033315 (N.J.Super.A.D. March 29, 2012) the surety located the defendant in Georgia and he was extradited back to New Jersey. The court granted 90% remission and forfeited $7,500 to the state. The surety appealed. The Court did not reach the merits of the amount remitted because the record did not show the trial court’s consideration of the appropriate factors and Guidelines. The Court stated, “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.”
State v. Norris, 2012 WL 1020021 (N.J.Super.A.D. March 28, 2012) affirmed the trial court’s decision to remit only 40% of the bond amount. The defendant was arrested in another state on the bench warrant issued after he failed to appear. He was at large only 7 days, and there was no proof he committed a new crime or that the surety monitored him before he failed to appear or engaged in substantial activities to recover him. The state incurred some expense in extraditing him. The Court held that the trial court considered the appropriate factors and that there was substantial evidence to support its decision.
In State v. Burger, 2012 WL 996620 (N.J.Super.A.D. March 27, 2012) the defendant failed to appear but was apprehended approximately 18 days later in another state. The trial court remitted 75% of the bond, and the surety appealed. The Appellate Division found that the trial court considered the appropriate factors and Guidelines and that there was evidence to support its conclusion that the surety engaged in minimal supervision of the defendant prior to his failure to appear. The Court affirmed the trial court’s judgment.
In State v. Moore, 2012 WL 913232 (N.J.Super.A.D. March 20, 2012) the defendant failed to appear but was re-arrested four months later. There was no contention that he committed additional crimes while released. The surety presented evidence of monitoring while he was released and efforts to recover him. The court granted remission of 75% of the bond, and the surety appealed. The Court found that the trial court had considered the appropriate factors and Guidelines and explained how it applied them to the facts. The Court affirmed the 75% remission as an entirely proper exercise of the trial court’s discretion.
New Jersey Case Law 2011
In State v. Raymond, 2011 WL 6260660 (N.J.Super.A.D. December 16, 2011) the defendant attended court on the required day but left without permission and prior to meeting with the probation officer for a drug screening. The surety promptly recovered him, and he did not commit any (known) new crime while a fugitive. The trial court granted 75% remission, and the surety appealed. The Appellate Division held that the bond was properly forfeited because the defendant failed to abide by the conditions of his bail. The percentage to be remitted, however, turned on whether under the applicable Guideline there should be “substantial remission” (95%) or only “partial remission” (75%). That, in turn, depended on whether there was close supervision of the defendant while he was released. The Court found that unusual circumstances prevented the trial court from hearing the surety’s evidence on the supervision issue. The surety’s attorney had to appear in another court and was attempting to drive to the trial court in a snowstorm. The court reached him by cellphone, but he was unable to review his file and could not inform the court of the surety’s arguments on supervision. The Court held that this justified reversal of the judgment and remand to the trial court so that it could reconsider the amount to remit with the benefit of the surety’s evidence of its monitoring of the defendant while he was released.
In State v. Hammond, 2011 WL 6111399 (N.J. Super.A.D. December 9, 2011) the defendant twice failed to appear. Each time the court forfeited the bond and issued a warrant but later rescinded the warrant and reinstated the bond. No notice was given to the surety. When the defendant failed to appear a third time, the court forfeited the bond and notified the surety. The surety moved to exonerate the bond based on Rule 3:26-6 and 7. The surety argued that the court violated Rule 3:26-6 by not giving notice of the failures to appear and also argued that reinstating the bond without its consent materially increased its risk and discharged the bond. The trial court noted that the defendant remained a fugitive and denied the motion. The Appellate Division reasoned that if the failure to give notice prevented the surety from carrying out its obligations to locate the defendant, then the bond should be exonerated even though the defendant remained a fugitive. The Court agreed with the trial court’s finding that the first reinstatement did not increase the surety’s risk because the defendant appeared two days later and had a sufficient explanation (he had apparently been hospitalized). On the other hand, there was no support in the record for finding that the second reinstatement did not constitute a material increase of the risk to the surety. The Court reversed the order denying the surety’s application for exoneration and discharge and remanded the case for further fact finding by the trial court to determine the facts surrounding the second failure to appear. On remand the trial court was directed to decide whether the lack of notice prevented the surety from performing its obligation to produce the defendant and whether the second reinstatement of the bond materially increased the surety’s risk.
In State v. Meyer, 2011 WL 6141473 (N.J. Super.A.D. December 12, 2011) the defendant was released on bail for 16 months before he failed to appear. The defendant was recaptured three days after the surety received notice. The trial court remitted 85% of the $50,000 bond, and the surety appealed. The Appellate Division found that the trial court considered the appropriate factors and the Remission Schedule and that there was evidence to support its finding that the surety engaged in substantial supervision of the defendant for much of the release period but that its supervision became “a little relaxed toward the end.” The Court held that the trial court did not abuse its discretion and affirmed the judgment remitting only 85% of the bond.
In State v. Wheeler, 2011 WL 5375010 (N.J.Super.A.D. November 9, 2011) the surety argued that after bail was posted the defendant was transferred to another county and held there under an alias. The surety alleged that it filed a motion to revoke the bond, but the record showed only letters sent to the court, without copies to the prosecutor or the defendant or law enforcement or jail authorities to alert them to hold the defendant. After he was released from jail in the other county, the defendant fled to Georgia, allegedly committed a murder there, and was eventually arrested in California slightly less than one year after his failure to appear. The surety submitted no evidence of efforts to supervise the defendant before he fled or apprehend him afterwards. The Appellate Division affirmed the trial court’s denial of any remission. The Court thought that the surety’s contentions did not merit discussion in a written opinion and affirmed based on the trial court’s opinion.
In State v. Ratliff, 2011 WL 5245216 (N.J.Super.A.D. November 4, 2011) the defendant was re-arrested a few days after he failed to appear. The surety sought full remission of the bond amount, but the trial court remitted only 85%. On the surety’s appeal, the Appellate Division held that the trial court considered the appropriate factors and did not abuse its discretion. While the record showed close supervision during part of the time the defendant was released on the bond, it did not establish any supervision for other periods including the last two weeks before he failed to appear. The Court rejected the surety’s policy arguments including that the forfeiture would have a chilling effect on the availability of bonds and constitute a significant impediment to the right of defendants to be released on bail.
In Allegheny/AA Bail Bonds, Inc. v. Wright, Case Nos. A-2066-07T2, A-2071-07T2 (N.J.A.D. March 22, 2011) the defendant and three indemnitors appealed from judgments awarding the surety the unpaid balance of the bond premiums plus the costs of collection. The Court rejected their arguments that the bail agent had agreed to waive the remaining part of the premiums based on the trial court’s finding that the defendant was not credible on that issue. The Court also rejected arguments that the federal Truth in Lending Act, consumer protection statutes or the Uniform Commercial Code somehow barred the surety from collecting the balance owed. The Court thought that the bail bond transaction was not an “extension of credit” subject to the Truth in Lending Act.
New Jersey Case Law 2010
In State v. Giusini, 2010 WL 2196001 (N.J.Super.A.D. June 2, 2010) the defendant failed to appear and the bond was forfeited. The following month, he was arrested on a traffic charge in another county. The court converted the bench warrant to a detainer and reinstated the bond without the surety’s knowledge or consent. While the defendant remained in custody in the other county, the surety’s agent filed a pro se motion to reinstate and discharge the bond. That motion was never ruled on, but a few days later the defendant was returned and released on the reinstated bond. The defendant again failed to appear, and a judgment was entered on the bond. The surety appealed, and the Appellate Division recognized that the court could not increase the surety’s risk without the surety’s consent. Here, at the time the court erroneously reinstated the bond, the defendant was in custody and had been a fugitive for only four weeks. The surety could have refused to reinstate the bond and sought remission pursuant to the remittitur guidelines. Instead, the surety was exposed to a far higher risk when the defendant again failed to appear in court. Therefore, applying basic principles of suretyship law, the Court held that reinstatement of the bond increased the surety’s risk. The Court remanded the case for remission of the amount forfeited considered as of the date the bond was reinstated. For purposes of remission, the Court directed the trial court to apply the Guidelines as if the defendant was in custody after only four weeks as a fugitive and not to have committed a new crime because traffic offenses are not crimes. The county argued that the surety agent’s motion was consent to reinstate the bond, but the court interpreted it as an attempt to extinguish any further risk based on the defendant’s failure to appear.
State v. Faswala, 2010 WL 45886 (N.J.Super.A.D. January 8, 2010) is the second appeal in a case where the defendant was detained at the US-Canadian border but the prosecutor’s office did not seek to have him returned and he subsequently left the country. The prior opinion holding that the surety should have the opportunity to show that the prosecutor increased its risk of loss was reported at 2008 WL 124039 (N.J.Super.A.D. January 15, 2008). On remand, the trial court found that the prosecutor’s office advised the border security officials that it could not seek the defendant’s return because he had not violated any condition of his bail. He had not yet failed to appear at a scheduled court date, and the bail had been provided before any court hearing so no travel restrictions had been imposed. The trial court again denied the surety’s motion to vacate the forfeiture or grant remission, and the surety appealed.
The Appellate Division thought the evidence supported the trial judge’s finding that the prosecutor did not increase the surety’s risk and affirmed denial of the surety’s motion. The Court also noted that since the defendant had not been recovered remission of the forfeiture would not generally be possible, but stated that the surety could apply for remission if the defendant was returned.
New Jersey Case Law 2009
In State v. Borbon, 2009 WL 605297 (N.J.Super.A.D. March 11, 2009) the defendant fled to the Dominican Republic. The surety located him there and gave the information to the State which filed an extradition application. The surety moved for relief from forfeiture of the bond. The trial court denied the surety’s request because the defendant had not yet been returned to custody. The trial court did not consider the various factors for remission of bail such as the surety’s monitoring of the defendant, the surety’s diligence in locating the defendant, any expense to the state and any crime committed by the defendant while released on bail. The trial court held that the surety had not done what it was supposed to do – return the defendant – and denied any relief. The surety appealed and argued that it could not go to the Dominican Republic and seize the defendant and the case was analogous to ones in which the defendant was in custody in another state. The Court held that the various factors should have been weighed and that they favored the surety. The Court ordered that the trial court determine the expense to the state of securing the defendant’s return and remit the balance of the bond to the surety.
In State v. DeShields, 2009 WL 614518 (N.J.Super.A.D. March 12, 2009) the surety appealed remission of only 20% of its $25,000 bond. The surety did not monitor the defendant, and after receiving notice of forfeiture it waited several weeks before sending the matter to a recovery agent. The recovery agent waited several more weeks but then located the defendant in jail in another county. The surety argued that the facts did not support a guidelines classification of “minimal remission” because it made “immediate substantial” efforts to recover the defendant. The surety also asserted that the trial court did not consider the relevant factors and explain its decision. The Appellate Division held that “minimal remission” was the correct category because the surety and its agent did not act promptly and did not play a role in the defendant’s capture. The Court agreed, however, that the trial court was obligated to consider various factors not just blindly use the percentage from the guidelines, and in this case should particularly have considered the amount of the bail and the relatively short period of time the defendant was at large. The Court vacated the judgment and remanded for the trial court to weigh the appropriate factors and equities and to articulate its findings.
In State v. Johnson, 2009 WL 790932 (N.J.Super.A.D. March 27, 2009) the defendant twice failed to appear for a pre-sentence interview with the probation officer, and the court revoked her bond and issued a warrant. She later appeared on the date for sentencing and claimed not to have received notice of the interviews. The defendant had moved and claimed to have informed the court, but the court file still contained her former address. The court accepted her explanation for the missed interviews, withdrew the warrant and reinstated the bond. The defendant later failed to appear for sentencing and the surety appealed forfeiture of its bond on the ground that the initial reinstatement without notice to or consent from the surety increased the surety’s risk and exonerated the bond. The Appellate Division agreed that a unilateral alteration of the bond without the surety’s consent would discharge the surety if the alteration materially increased the surety’s risk. In this case, however, the Court found that the trial court had a reason to reinstate the bond and the surety’s risk was not increased. The Court rejected the surety’s argument that reinstatement of the bond without notice to the surety automatically discharged the surety.
In Jacobs v. A Robert Depersia Agency, 2009 WL 799944 (D.N.J. March 20, 2009) an incarcerated criminal filed a pro se Section 1983 action against a bail bond agency that had apparently surrendered him. The court held that the bail bond agency was not a “state actor” for purposes of the civil rights statute and dismissed the case for failure to state a claim.
In Jacobs v. A Robert Depersia Agency, 2009 WL 1874064 (D.N.J. June 30, 2009) the former defendant moved for reconsideration of the court’s dismissal of his suit against a bail agency that had allegedly surrendered him and retained collateral held for the bond. The pro se plaintiff, however, sued under §1983, and the court repeated its earlier holding that the bail agency was not a state actor for purposes of that statute.
In State v. Robinson, 2009 WL 1872314 (N.J.Super.A.D. July 1, 2009) the defendant was arrested on additional charges. After he pled guilty, he was released pending sentencing. The charges to which he pled guilty required a substantial period of incarceration. He did not appear for sentencing, and the bond was forfeited. Over two years later, he was arrested in another state, and the surety returned him to custody in New Jersey. The trial court granted remission of 52% of the forfeited amount, and the surety appealed. The Appellate Division thought that the surety should have been aware of the guilty plea and could have sought to surrender the defendant. Since it did not, it could not complain that the guilty plea and expected sentence increased its risk without its consent. The trial court considered the appropriate factors and was within its discretion in remitting only 52% of the bond amount.
In State v. Perez, 2009 WL 3079189 (N.J.Super.A.D. September 28, 2009) the Appellate Division affirmed the trial court’s forfeiture of 47.5% of the bond amount. The defendant was at large for 26 months before the surety located him in custody in another state. The surety did not monitor him prior to his failure to appear but did take prompt action to locate him after receiving notice of his default. On an ambiguous record the court assumed he did not commit any additional offences and picked the mathematical midpoint of the applicable guideline range. The Appellate Division found that the trial court considered and articulated an evaluation of the applicable factors and did not abuse its discretion.
In Gourdine v. Blaze Bail Bonds, 2009 WL 3170692 (N.J.Super.A.D. October 1, 2009) the defendant failed to appear but was re-arrested shortly thereafter. The surety negotiated a settlement to forfeit a small portion of the face amount of the bond. The defendant sued the surety for not keeping him informed of his court appearance dates and not properly investigating his excuses for not appearing and not providing a new bond for him after the bail amount was increased. The Court affirmed judgment for the surety and held that the surety owed the defendant none of the alleged duties.
In State v. Scurry, 2009 WL 3849917 (N.J.Super.A.D. November 16, 2009) the trial court remitted only 10% of the bond amount and the surety appealed. The surety’s agent had located the defendant in jail in another county within 90 days of the failure to appear. The trial court assumed that meant the defendant had committed a new crime while released on bond. The surety admitted that it engaged in little or no monitoring of the defendant while he was released but contested the State’s arguments that it did not act promptly to recover him and that he committed a new crime. The Appellate Division rejected the surety’s contention that any determination of whether the defendant committed a new crime necessarily had to await the resolution of the new criminal charges but agreed that the trial court erred in assuming a new crime just because the defendant was arrested without establishing the date of the alleged new crime. The Court thought successful location of the defendant was per se a reasonable effort but that the trial court record was inadequate to establish whether the surety acted promptly and inadequate for consideration of other factors including prejudice or expense to the State. The Court reversed the 10% remission order and remanded the case for further proceedings.
In State v. Robinson, 2009 WL 4724603 (N.J.Super.A.D. December 8, 2009) was the second appeal in this case, see 2007 WL 1703501 (N.J.Super.A.D. June 14, 2007). The defendant fled but was located in jail in North Carolina. The State lodged a detainer against him, but the North Carolina authorities eventually released him anyway. After remand of the first appeal, the trial court denied the surety’s motion to set aside the forfeiture and grant remission of the forfeited bail. The Appellate Division affirmed. The record supported the trial court’s findings that the defendant committed a new offense and was again a fugitive. The trial court considered the proper factors and was within its discretion in denying the surety even a partial remission. If the defendant is returned to custody in New Jersey, the surety can renew its motion.
In State v. Taylor, 2009 WL 4724270 (N.J.Super.A.D. December 10, 2009) the surety appealed the trial court’s order granting remission of only 25% of the bond amount. The surety argued that under the Remittitur Guidelines it was entitled to 40% remission. The surety conceded that prior to default it engaged in only minimal monitoring, but argued that its recovery efforts, which located the defendant in jail in another County, were immediate, substantial efforts because it did what could be done – locate the defendant – even though a simple computer search accomplished the task. The Court disagreed and thought that a six week delay in taking action, which may have located the defendant before he was arrested in another County, was not immediate, substantial efforts and that the trial court did not abuse its discretion picking a percentage midway between minimal and partial remission.
New Jersey Case Law 2008
State v. Russell, 2008 WL 110482 (N.J.Super.A.D. January 3, 2008) is another case wrestling with application of the Guidelines for partial remission of forfeiture when the defendant is recovered. The defendant was at large less than six months, committed no new crime, and the state alleged no expenses, but the surety performed little or no monitoring prior to his failure to appear. The trial court held that the surety’s recovery efforts were less than immediate and substantial, and granted only a Minimal Remission of 20%. The surety argued that its recovery efforts were immediate and substantial, and it was therefore entitled to a Partial Remission of 75%. The Appellate Division held that the affidavit of the surety’s supervising agent “fell woefully short of demonstrating” immediate, substantial recovery efforts and affirmed the trial court.
In State v. Faswala, 2008 WL 124039 (N.J.Super.A.D. January 15, 2008) the defendant, who was born and raised in Pakistan, did not keep in contact with the bail agent. The bail agent learned that the defendant had been detained at the US-Canadian border and requested that the prosecutor’s office take action to have him returned. The prosecutor refused, and the defendant left the U.S. The surety filed a motion to vacate the bond and issue a warrant, but the court denied the motion on the ground that the defendant had not missed a court date. After the defendant failed to appear for his next scheduled appearance, the court issued a warrant and notified the surety of bond forfeiture and judgment. The surety moved to vacate the forfeiture and judgment. The trial court denied the motion and the surety appealed.
The Appellate Division noted that the defendant had not been recovered. The issue was whether the prosecutor materially increased the surety’s risk by failing to act when advised that the defendant was detained at the border. The Court thought that the record was insufficient to evaluate the issue and remanded the case to allow the surety an opportunity to establish that the defendant’s release by the border authorities resulted from “either an expressed or implied agreement on the part of the prosecutor’s office that it would not seek his return.”
In State v. Graves, 2008 WL 239019 (N.J.Super.A.D. January 30, 2008) the trial court forfeited only $5,000 of a $35,000 bond. The surety nevertheless appealed, and the Court affirmed the trial court. The surety made no effort to supervise the defendant and no reasonable effort to locate her after she failed to appear. The surety eventually located her by a computer search of records of the New York Department of Corrections. The Appellate Division thought that the trial court’s remission of more than 85% of the bond amount was generous to the surety in light of the Guideline maximum of 75% for a surety that does not supervise the defendant.
In State v. Vega, 2008 WL 515976 (N.J.Super.A.D. February 28, 2008) the surety failed to monitor the defendant prior to his failure to appear, but upon receiving notice of the default, the surety promptly retained a recovery agent who located the defendant in jail. The defendant was at large for slightly less than two months and did not commit any known crime during that period. The trial court applied the minimal remission section of the Guidelines and remitted only 20% of the $50,000 bond. On the surety’s appeal, the Appellate Division held that the partial remission guidelines should have been used, that the amount of the bond was a pertinent consideration, and that the trial court’s consideration of the various factors was inadequate. The Court vacated the trial court’s order and remanded the case for additional fact finding and reconsideration in light of the current Guidelines and appellate decisions.
State v. Alexander, 2008 WL 1793206 (N.J.SuperA.D. April 22, 2008) decided seven consolidated appeals in each of which the defendant failed to appear and was arrested for a new crime committed while a fugitive. In each case, the trial court granted partial remission taking the commission of the new crime into account as one factor to weigh against the surety. The surety appealed arguing that commission of a new crime was not a proper factor because it effectively made the surety the guarantor of the defendant’s behavior rather than solely of his appearance. The Appellate Division rejected this argument. It thought that the intangible harm to the public interest when a defendant fails to appear is a proper consideration in remitting forfeitures, and that commission of a new crime is one manifestation of that intangible harm. The trial court, however, had not adequately considered the different facts of the seven individual cases in reaching its decisions on the percentage of each bond to remit, and the Court reversed the orders appealed from and remanded for reconsideration of the amounts to remit.
In State v. Valdes, 2008 WL 2078212 (N.J.Super.A.D. May 19, 2008) the surety posted two bonds for a defendant charged with a series of drug offenses. The defendant pled guilty to some of the charges in a plea agreement. The surety did not seek to surrender the defendant and obtain a release of the bonds. The defendant failed to appear for sentencing, and the bonds were forfeited. The surety appealed the judgments of forfeiture arguing that the guilty pleas materially increased its risk and discharged the bonds. The Court held that a guilty plea to the charges for which the bonds were given was part of the risk the surety assumed and affirmed the judgments.
In State v. Ventura, 952 A.2d 1049 (N.J. 2008) the New Jersey Supreme Court considered two consolidated cases in which the defendants failed to appear but were located incarcerated in another jurisdiction. The New Jersey authorities lodged detainers against the defendants, but in each case they were deported rather than returned to New Jersey. The sureties argued that the forfeitures should be remitted based on the surety’s efforts to monitor and recover the defendants and the fact that the government prevented the defendants’ return. The state argued that the defendants were still fugitives and no remission was appropriate. The trial court denied the sureties’ motions to remit the forfeited bail, and the intermediate appellate court affirmed.
The Supreme Court reviewed the Guidelines published by the Administrative Office of the Courts and several Appellate Division decisions on remission of bail. The Court drew a distinction between a defendant who was in compliance with his or her obligations up to the point of deportation and a defendant who was already a fugitive when deported. The Court thought that in the later case the first starting point of the Guidelines applied and there was a presumption of no remission. If the defendant was in compliance and was prevented from appearing by the act of the government, however, the Court thought that fact should be taken into account. In the two cases before the Court, however, the defendants were already fugitives, the trial court had considered the proper factors, and the Court affirmed denial of the sureties’ motions.
In State v. Holloway, 2008 WL 5101272 (N.J.Super.A.D. December 5, 2008) the defendant was released on a $30,000 bond. He failed to appear but was arrested nine days later. The trial court applied the Guidelines and granted the 75% remission called for if the defendant was a fugitive for less than six months. The Appellate Division accepted the category into which the trial judge placed the case but held that the Guidelines were merely the starting point and in this case the size of the bond and the very brief period of time during which the defendant was at large warranted a 90% remission. The Court vacated the trial court’s order and remanded the case for entry of an order remitting 90% of the bond.
New Jersey Case Law 2007
In State v. Toscano, 913 A.2d 130 (N.J.Super.A.D. 2007) the trial court remitted only 20% of the bond forfeiture even though the defendant was in custody again by the time the surety received notification of the forfeiture. The Court discussed application of the remittitur guidelines and particularly what are immediate substantial efforts to recapture the defendant if he has already been recaptured. The Court vacated the trial court’s order and remanded the case for re-consideration in light of State v. Ruccatano and the remittitur guidelines issued by the Administrative Director of the Courts.
State v. Carrasco, 2007 WL 674683 (N.J.Super A.D. March 7, 2007) held that the trial court correctly denied the surety’s motion to vacate the forfeiture and discharge the bond. The surety’s only argument was that the trial court’s automated case tracking system showed the bond had been exonerated. The Court weighed that against all the other events in the case, including written notices and court dates, and the surety’s lack of any proof of prejudice from the erroneous information. The surety never did produce the defendant, and the Court exhibited little sympathy for what it thought was an attempt to use the computer error to avoid liability.
State v. Stubbs, 2007 WL 763302 (N.J. Super. A.D. March 6, 2007) affirmed remission of only 85% of the bond amount. The surety monitored the defendant by telephone except for a period when he did not call, and the surety promptly recovered him once it received notice of forfeiture. The issue as application of the Remititur Guidelines for “substantial remission” (95% for these facts) or “partial remission”(75%), and the trial court concluded that the case fell between the two and granted 85%. The Court of Appeals affirmed finding no abuse of discretion or error of law.
In State v. Robinson, 2007 WL 1703501 (N.J.Super.A.D. June 14, 2007) the defendant failed to appear and the court forfeited the bond. In due course, a default judgment was entered against the surety. The surety moved to vacate the forfeiture and discharge the bond based on a certification by its counsel that recited the surety’s efforts to monitor and locate the defendant. He was found in jail in North Carolina, and the New Jersey authorities lodged a detainer against him. At the time the trial court considered the surety’s motion, however, he had not yet been returned. The trial court held that the motion was premature and the surety was not entitled to any relief until the defendant was returned to custody in New Jersey.
The Appellate Division reversed and stated, “a surety need not wait until defendant is returned to custody in New Jersey before seeking remission of the forfeited bail.” On the other hand, the Court suggested that the surety would be entitled to only a small, partial remission unless or until the defendant was returned because the surety would have accomplished only “some small part” of its obligation. The Court also pointed out that the proper support for the surety’s motion should be an affidavit made on personal knowledge, not a certification of counsel as to what his client told him.
State v. Simoes, 2007 WL 1756672 (N.J.Super.A.D. June 18, 2007) affirmed the trial court’s decision to remit only 60% of the forfeited bail. The defendant failed to appear and a forfeiture was entered. In due course, a judgment was entered on the forfeiture. Three months after his initial failure to appear, the defendant was arrested on new charges in another county. The Court noted that the surety did not closely monitor the defendant to assure his appearance, that he committed a new crime while a fugitive, and that the surety did not cause his recapture. It is true that the surety told the defendant to report and hired an investigator to locate him, but overall the Court thought that the trial court did not abuse its discretion in ordering a 60% remission and that, indeed, the facts “may have justified a less generous approach.”
In State v. Rojas, 2007 WL 1855369 (N.J.Super.A.D. June 29, 2007) the bond was posted and the defendant released in November, 1998. The defendant failed to appear in September, 1999 and a bench warrant was issued for his arrest. The surety was not notified, however, until October, 2004 when the bail was forfeited. The surety sought to vacate the forfeiture, but the trial court entered judgment in January, 2005. On appeal, the Court held that under N.J.S.A. 2A:162-5 a bail bond is no longer enforceable, and no judgment can be entered, six years after the bond was filed and recorded in the clerk’s office. In this case, the six year period ran from posting the bond in 1998, not the defendant’s failure to appear in 1999, and the judgment entered more than six years later was in error.
State v. Wilson, 2007 WL 2126589 (N.J.Super.A.D. July 26, 2007) vacated the trial court’s refusal to grant relief from forfeitures because the defendants were imprisoned in another state. The trial court followed State v. Erickson, 381 A.2d 72 (N.J.SuperA.D. 1977) which stated that a defendant imprisoned in a state other than New Jersey was still a fugitive and the surety was not entitled to relief unless or until the defendant was returned to New Jersey to face the charges. The Appellate Division decided that developments since Erickson, including increased use of the Interstate Agreement on Detainers, technological advances that enable the state to rapidly find fugitives through the NCIC, and the New Jersey Remititur Guidelines justify abandonment of the absolute position stated in Erickson. Instead, the trial court should balance all the relevant factors, including that the purpose of bail is the appearance of the defendant not revenue for the state. The Court also noted that the state promptly located the incarcerated defendants but did not tell the surety or the court, and the surety retained a recovery agent who also located the defendants some time later. The Court thought this needlessly increased the surety’s costs and should be taken into account in balancing the factors governing remission.
In State v. Granados, 2007 WL 2262883 (N.J.Super.A.D. August 9, 2007) the defendant failed to appear because she was incarcerated in another State. Her bail was forfeited, a bench warrant issued, and a detainer lodged against her. The other State, however, turned her over to federal officials who deported her. The surety moved to vacate the forfeiture and showed that it had diligently monitored the defendant and acted promptly when she failed to appear. The trial court denied the motion and ordered payment of the entire amount of the bond.
The Appellate Division affirmed. The trial court was within its discretion in forfeiting 100% of the bond. The defendant was still a fugitive, and the surety had not sought to intervene in the federal deportation proceeding to prevent her deportation.
In State v. Cooper, 2007 WL 2331015 (N.J.Super.A.D. August 17, 2007) the defendant was convicted but did not appear for sentencing. Within about six months, the surety obtained information on his possible location in another state and contacted law enforcement authorities there who arrested him. He was returned to New Jersey and sentenced. The surety had monitored him prior to conviction and was directly responsible for his recovery. He had been a fugitive for about six months, and there was no evidence he had committed any new crime during that time. The trial court forfeited 40% of the bond amount, and the surety appealed. The Appellate Division reviewed the factors to be considered under its prior decisions and the forfeiture Guidelines, and concluded that the trial court had used the Guideline section for forfeitures if the defendant commits a new crime, which called for remission of 60%, instead of the proper section which called for remission of 95%. The Court reversed the judgment and remanded for reconsideration and application of the proper Guidelines.
In State v. Hill, 2007 WL 2416770 (N.J.Super.A.D. August 28, 2007) the defendant failed to appear a second time (the bond had been reinstated once) and a judgment was entered against the surety. Law enforcement authorities located the defendant incarcerated in another state and lodged a detainer against him. The surety moved to vacate the forfeiture and discharge the bond. The trial court denied the motion and ordered the surety to pay the judgment or be suspended from writing further bonds. The surety posted a supersedeas bond and appealed. The trial court relied on cases holding that if the defendant was detained in another state he was still a fugitive, but the Court of Appeals’ recent decision in State v. Wilson, 2007 WL 2126589 (N.J.Super.A.D. July 26, 2007) overruled that precedent. Nevertheless, the Court affirmed the judgment against the surety. The record did not indicate the surety monitored the defendant prior to his disappearance or helped recover him, and he apparently committed a new crime while a fugitive. The Court, however, did not close the door on future relief and stated, “Upon Hill’s extradition to New Jersey and a fair assessment of the costs and expenses associated with returning him to this State, Harco can make a new application seeking remission in accordance with the standards articulated in Harmon and Wilson.”
State v. Harvey, 2007 WL 3033964 (N.J.Super.A.D. October 19, 2007) consolidated two appeals in one decision. In both appeals the defendant failed to appear for sentencing and the bond was forfeited. In both appeals the defendant was recovered and returned for sentencing, and the surety made no showing that it had closely monitored the defendant while he was released on bond. In one appeal the surety’s agents were instrumental in effecting the recovery with no help from the State. In the other, the prosecutor’s office recovered the defendant through an NCIC warrant and the surety’s participation was minimal. In the former case, the trial court remitted 80% of the bond and in the latter 20%. The Court of Appeals affirmed as to the 80% remission. In light of the lack of pre-default monitoring, the amount remitted exceeded the maximum guideline and was only justified by the surety’s extraordinary recovery efforts. In the 20% case, the Court held that the time during which the defendant was at large (a factor under the guidelines) should be measured only until the date the defendant was located by means of the NCIC database, not the date he was actually returned to New Jersey. Since that was less than six months, the trial court judge used the wrong “starting point” under the guidelines, and the 20% case was remanded for consideration using the appropriate guideline.
In State v. Gonzales, 2007 WL 3290287 (N.J.Super.A.D. November 8, 2007) the defendant gave a false name and identification. The surety wrote the bond believing that the defendant was the person whose name he used. After the defendant failed to appear, the surety located the actual person of that name, but not the defendant. The surety moved for additional time to locate the defendant. The trial court denied the motion and entered judgment forfeiting the bond but did not explain its reasoning. The surety appealed and also moved to supplement the record to allege that the prosecutor’s office knew the correct name of the defendant before the bond was written. The Appellate Division vacated the judgment and remanded the case for entry of findings of fact and conclusions of law and consideration of the surety’s request to supplement the record. The Court specifically stated that after remand the surety could move to vacate the forfeiture or for remission of all or part of the forfeiture.
In State v. Pulyer, 2007 WL 3341724 (N.J.Super.A.D. November 13, 2007) the defendant failed to appear and a notice of forfeiture was sent to the surety. Slightly over three months later, the prosecutor’s office located the defendant in federal custody, and a detainer was lodged against him. Eventually, he was returned and pled guilty. The trial court remitted only 20% of the bond amount, and the surety appealed. The trial court assumed that the defendant had committed a new crime while a fugitive, but the record did not support such an assumption. He could have been taken into federal custody because of a pre-existing warrant. The trial court also treated the defendant as a fugitive for 16 months even though he was in federal custody most of that time. Under the Guidelines the length of time he was a fugitive and the commission of a new crime are significant considerations, and the Court vacated the trial court order and remanded for reconsideration of both factors and the amount to remit.
In State of New Jersey v. Ghannam, 2007 WL 4355486 (N.J.Super.A.D. December 14, 2007) the defendant failed to appear and notice was sent to the surety. After additional notice and a hearing, judgment was entered in the amount of the bond. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the trial court’s electronic docket system indicated the bond had been discharged on the date the defendant first failed to appear. The defendant was not recovered, and the Court held that the erroneous docket entry, which did not mislead the surety, was not a basis to set the forfeiture aside.
In State v. Calcano, 937 A.2d 314 (N.J.Super.A.D. 2007) the defendant did not keep in contact with the surety, and the surety obtained a bench warrant. The defendant was brought before the court and the surety sought revocation of bail, but the trial court refused and continued the bond. The defendant later pled guilty to an offense with a mandatory minimum sentence, but at that time neither the State nor the surety sought to revoke his bond. He did not appear for sentencing and has not been recovered. The surety sought to vacate forfeiture of its bond because of the trial court’s denial of its request to revoke the bond and because the court did not revoke the bond when the defendant pled guilty. The Appellate Division recognized that a surety is discharged by an alteration of the terms of the bond that substantially increases the surety’s risk without its consent, but held that the facts of the case did not amount to such an alteration. At the time the surety sought to revoke the bond, the defendant had kept in contact with the surety for a lengthy period before losing contact and had made all court appearances. The trial judge did not abuse her discretion by continuing the bail. The bond guarantees the defendant’s appearance until final determination, i.e. entry of sentence, and the guilty plea was not a substantial increase in the surety’s risk. The Court distinguished a case involving entry of a guilty plea in another case with a mandatory sentence. That was a risk the surety had not assumed, and so a substantial increase, but a guilty plea in the case in which the bond was provided was a risk included in the original bond and not grounds for an automatic revocation. The prosecutor or the surety could have applied for revocation of the bail when the guilty plea was entered, but they did not. The Court affirmed denial of the surety’s motion to vacate the forfeiture.
In State v. Ridgeway, 2007 WL 4462426 (N.J.Super.A.D. December 21, 2007) the defendant pled guilty to a crime that required a psychiatric evaluation before sentencing. He failed to appear for the court-ordered evaluation, and the court issued a bench warrant and forfeited his bond. He was arrested four days later. The surety moved for relief from the forfeiture. The court granted only a 75% remission, and the surety appealed. The Appellate Division held that the court-ordered evaluation was a “stage of the proceedings” and the bond could be forfeited for the defendant’s failure to appear. The trial court, however, ordered only a 75% remission because the bail agent’s affidavit showing that the surety monitored the defendant did not provide details such as the dates of calls and visits. The trial court treated the case as one of no or minimal monitoring and remitted only 75% of the bond even though the defendant was arrested in a few days, committed no new known crime, and the state claimed no expense for recovering him. The Appellate Division vacated the decision on the amount of remission and directed that after the surety has an opportunity to submit a supplemental affidavit with additional details the trial court should reconsider application of the remission Guidelines.
New Jersey Case Law 2006
State v. Safety National Casualty Corp., 2006 WL 167841 (N.J. Super. A.D. January 25, 2006) remanded the case for the trial court to reconsider its decision to forfeit $30,000 of a $100,000 bond. The trial court did not state that it was considering the factors that the case law required. Instead, the trial court seemed to place primary emphasis on the fact that the defendant committed another crime after his release. When bail was posted, the defendant was not released because of a detainer from another county. He failed to appear, and the court declared a forfeiture, but he was still incarcerated in the other county. The court then reinstated the bail without notice to the surety. After the defendant again failed to appear, the bond was forfeited. Notice of the forfeiture was mailed to the surety on August 13, 2004, and the defendant was rearrested on August 17. The Court of Appeals directed that on remand the trial court first consider whether reinstatement of the bond prejudiced the surety, which would require complete exoneration, and if not to consider the proper factors in determining how much of the bond to forfeit. Although remanding the case, the Court of Appeals stated that given the facts of the case, “it would appear difficult to penalize Safety National at all, let alone to the extent of thirty percent of the bond.”
In State v. Hawkins, 889 A.2d 1081 (N.J. Super. A.D. 2006) the trial court forfeited 60% of two bonds. The surety appealed. The Court held that failure to give the surety statutory notice of the defendant’s earlier failure to appear prejudiced the surety and exonerated the bonds because the surety could have surrendered the defendant or, at least, not written a second bond for him, if the surety had known of this prior failure to appear. The court rejected the surety’s additional argument that the court’s questioning of the defendant’s release on bail and suggestion that the state move to revoke bail prejudiced the surety and was a grounds to exonerate the bonds.
In State v. Williams, 2006 WL 280514 (N.J. Super. A.D. February 7, 2006) the court affirmed remission of only 20% of a forfeited bond because it found that the surety made no meaningful effort to monitor the defendant or recover him after he failed to appear.
Commissioner of the Department of Banking and Insurance v. Capital Bonding Corporation, 2006 WL 2128930 (N.J. Super. A.D. August 1, 2006) affirmed the revocation of the licenses of Capital Bonding and Vincent Smith and fines in excess of $1 million imposed by the insurance commissioner. The decision recites various violations including tendering multiple checks drawn on accounts with insufficient funds and failing to pay numerous bond forfeitures in violation of agreements with different underwriters.
State v. Ethridge, 2006 WL 2164619 (N.J. Super. A.D. August 3, 2006) held that forfeiture of the bond was proper but that the trial court had not adequately considered all of the factors for remission of the forfeiture under Court Directive #13-04. The trial court denied the surety’s motion to vacate the forfeiture and remitted 40%. The Court of Appeals vacated the amount remitted and remanded for the trial court to apply all eight of the remission factors.
State v. Gallagher, 2006 WL 2382018 (N.J.Super.A.D. August 18, 2006) affirmed the trial court’s decision to remit only 20% of the forfeited amount. After the defendant failed to appear and the bond was forfeited, law enforcement officers arrested the defendant. He was missing for 47 days. The Court reviewed the applicable factors, including the corporate surety’s failure to supervise the defendant or recover him after default, and held that remission of only 20% was within the discretion of the trial court.
State v. Ruccatano, 909 A.2d 1173 (N.J. Super. A.D. 2006) held that it was error for the trial court to remit only 10% of the forfeited bond. Promptly after learning that the defendant had failed to appear, the bail agent located him in jail in another county and informed the authorities, who lodged a detainer against him. The trial court reviewed the “Remittitur Guidelines” and focused on the bail agent’s efforts to recapture the defendant. The trial court did not give sufficient consideration to all the factors, and particularly to the fact that the bail agent promptly located the defendant even though it did not take much effort. The Court held that effective efforts were necessarily reasonable efforts and 40% should have been remitted.
In Allegheny Mutual Casualty Co. v. Delachia, 2006 WL 3476677 (D.N.J. November 30, 2006) the surety sued an agent for indemnity for payments the surety made under a series of immigration bonds. The court denied the agent’s summary judgment motion. The agent argued that the cause of action accrued when the surety entered into an agreement that fixed its liability even though the payments were made over several years. The surety argued that the cause of action accrued when it made the last of the payments. The New Jersey statute of limitations for breach of a written contract was six years from the date the cause of action accrued. The court seemed to assume that there was a single cause of action that accrued at one time not separate causes of action for each payment. The court rejected the agent’s argument and held that the cause of action accrued when payment was made. The issue then was whether it accrued on the first payment or the last payment. The court held, at least for purposes of denying the motion, that the loss became fixed and the cause of action accrued when the last payment was made and the action therefore was timely.
In State v. Tuthill, 912 A.2d 146 (N.J. Super. A.D. December 8, 2006) the court clerk erroneously sent the surety a notice that the bond was canceled. The Court held, “absent a showing by the surety of detrimental reliance or a material increase in the risk originally undertaken, a court is not bound by its error, has the power to correct it, and acts within its discretion in ordering the bond reinstated without the surety’s consent.” The surety argued that it stopped monitoring the defendant, but in fact the defendant appeared as required and was eventually acquitted of the charge. The Court thought that there was no prejudice from, or detrimental reliance on, the erroneous cancellation notice.
In State v. Redd, 2006 WL 3816296 (N.J.Super.A.D. December 29, 2006) the trial court remitted only 20% of the bond forfeiture even though the defendant was promptly re-arrested on the bench warrant. The Court vacated the trial court’s order and remanded the case for re-consideration in light of State v. Ruccatano and the remittitur guidelines issued by the Administrative Director of the Courts.
New Jersey Case Law 2005
State v. Wickliff, 875 A.2d 1009 (N.J. Super. 2005) vacated the conviction of a recovery agent for criminal trespass because the trial court’s instructions to the jury did not allow the jury to find that the defendant was not guilty because he reasonably believed he had a right to enter the house of the fugitive’s mother to look for the fugitive. The New Jersey criminal trespass statute requires that the defendant must enter a structure “knowing that he is not licensed or privileged to do so.”
In State v. Ramirez, 875 A.2d 1025 (N.J. Super. 2005) the court consolidated three appeals by Sirius America Insurance Company, reviewed the factors to be considered when the surety requests remission of all or part of a bail forfeiture, and held that there was no basis in any of the cases to overturn the trial court’s exercise of its discretion in determining the amount to remit (in two cases) or not to grant any remission (in the third case).
Dobrek v. Phelan, 2005 WL 1963036 (3rd Cir. August 17, 2005) held that §523(a)(7) of the Bankruptcy Code exempted from discharge the debts of a bail agent on forfeited bonds. In New Jersey, a bail agent who signs the bond is liable for the forfeiture, and a bail agent with unpaid forfeitures is removed from the Bail Registry and thus cannot write additional bonds. Mr. Dobrek had unpaid forfeitures and was removed from the Bail Registry. He sued and argued that his obligations on the bonds were discharged in his Chapter 7 bankruptcy proceeding. The Court held that the debts were “a fine, penalty or forfeiture payable to a governmental unit” and so not discharged pursuant to §523(a)(7).
In State v. AA Bail Bonds, 2005 WL 3500808 (N.J. Super. A.D. December 23, 2005) the surety recovered the defendant for non-appearance in another case and tried to surrender him and revoke the $50,000 bond in the instant case. The trial court refused to revoke the bond, and the defendant failed to appear. The trial court remitted half of the forfeiture. The Court of Appeals reviewed the factors to be considered in granting remission and thought that the facts of the case called for remission of more than 50%. It vacated the trial court order and remanded the case for reconsideration in light of the factors discussed.
State v. Harris, 887 A.2d 728 (N.J. Super. A.D. 2005) affirmed an order remitting only 75% of the bond amount. The Court reviewed the various factors for determination of the amount to be remitted, including that the defendant was apprehended by the Sheriff’s office not the surety, and the applicable guidelines and held that remission of only 75% was within the trial court’s discretion and the interests of justice.
New Jersey Case Law 2004
In re Preclusion of Brice, 841 A.2d 927 (N.J. Super. A.D. 2004) is another case indirectly involving Capital Bonding Corporation. The court held that the contracts, court rules and statutes involved permitted the court to de-list (refuse to accept further bonds from) the bail agent, as well as the surety company, if forfeitures were not paid. Although Capital Bonding was not a party, the court noted that the agent’s contract was with Capital Bonding not with either of the surety companies.
New Jersey Case Law 2003
State v. Clayton, 825 A.2d 1155 (N.J. Super, A.D. 2003) and State v. Dillard, 824 A.2d 1100 (N.J. Super, A.D. 2003) both hold that in a series of cases the vast majority of the forfeited bond amount should be remitted because of the surety’s successful efforts to recover the defendant and the lack of any expense or prejudice to the state. In one of the cases decided in the Clayton opinion, the surety was entitled to complete exoneration because it apprehended the defendant and objected to forfeiture within the 45 day period (since extended to 75 days) provided by N.J. Rule 3:26-6(b). The trial court reinstated the bond and again released the defendant who again failed to appear and was again recovered by the surety. The appeal court held that reinstating the bond without the surety’s consent discharged the surety from any obligation for further defaults and the surety had fully performed after the first default as required by the rule. In the other 8 cases decided in the two opinions, some part of the bond was forfeited but most was remitted in light of the surety’s monitoring and recovery efforts.
State v. Harmon, 825 A.2d 515 (N.J. Super.A.D. 2003) is another decision of the New Jersey intermediate appellate court granting some degree of relief from forfeiture on 14 out of 16 bonds under consideration. The court decided that if the defendant remained at large, no relief was warranted. On the rest of the cases, some relief was granted depending on the facts of each case.
State v. Simpson, 839 A.2d 896 (N.J. Super. A.D. 2003) is an opinion in 17 consolidated appeals raising constitutional challenges to the New Jersey procedure barring sureties and agents who fail to satisfy an uncontested judgment of forfeiture from writing more bonds until the forfeiture is paid. The 17 cases all involve two sureties who have the same Program Administrator, Capital Bonding. The Court found that the constitutional issues were frivolous and resoundingly upheld the right of the New Jersey Supreme Court to establish rules barring defaulting sureties. The Court was also highly critical of the surety companies for which Capital Bonding is the managing agent for a policy of appealing virtually every forfeiture. In cases in which the defendant was not recovered, the grounds of appeal have been the constitutional issues now rejected by the Court, supported by identical “verbatim” briefs. The Court states, “Hundreds of such appeals have been filed in the last several years, but because the appellant saw fit to withdraw or settle them as they were calendared, these constitutional issues were not adjudicated, and the stream of ‘verbatim’ appeals therefore continues.” This is unusually strong language from a court describing what it clearly thinks is an abusive practice.