STATE OF NEW JERSEY v. MARY ETHRIDGE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5899-04T15899-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARY ETHRIDGE and

BAIL OUT NOW BAIL BONDS,

Defendants,

and

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant.

 
___________________________________

Argued May 8, 2006 - Decided August 3, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Criminal Division, Cape May County, Indictment No. 04-02-00146-1.

Samuel M. Silver argued the cause for appellant.

James Arsenault, Assistant County Counsel, argued the cause for respondent (Barbara Bakley-Marino, Assistant County Counsel, on the brief).

PER CURIAM

Safety National Casualty Corporation, (the Surety), appeals from an order of the Law Division entered on June 6, 2005, directing the forfeiture of 60% of the recognizance bonds posted by the Surety through its posting agent, James Anderson, owner and operator of Bail Out Now Bail Bonds Inc., on October 6, 2004. We affirm that portion of the order directing a forfeiture; reverse and vacate the amount forfeited; and remand for reconsideration as to the amount of the forfeiture.

We briefly state the combined procedural history and statement of facts which, for the most part, is undisputed. Under a February 2004 Cape May County indictment, defendant was charged with third-degree unlawful possession of a controlled dangerous substance, N.J.S.A. 23C:35-10a(1). In early March 2004, defendant was released on bail from the Cape May County Jail where she had been incarcerated awaiting a court appearance, and given an arraignment date of March 11, 2004. Defendant failed to appear (FTA'd) for the arraignment hearing, bail was forfeited, and a bench warrant issued. A bail forfeiture default judgment was entered on June 9, 2004. On July 29, 2004, defendant was arrested on the March 11, 2004 bench warrant with bail set at $5,000. Defendant posted bail, and was released with advice of a pre-arraignment conference date of August 24, 2004. Defendant FTA'd, and a second bench warrant was issued. On September 23, 2004, defendant was arrested, and bail set at $100,000.

On September 29, 2004, Nancy Dougherty, a criminal case management staff person with ten years experience, met with defendant at the Cape May County Jail for the purpose of determining whether defendant was eligible for a public defender. After obtaining the necessary information required by the Uniform Defendant Intake form (5A form), Dougherty advised defendant that she was approved for a public defender, and that her arraignment date was October 7, 2004. Although no written notice of the court date was provided to defendant, Dougherty made a written notation of the arraignment date on the 5A form.

On October 6, 2004, after the close of the court's business day, Anderson posted a bail bond for defendant's release in the amount of $100,000. The premium on the bail bond was $10,000. Anderson received a check prior to defendant's release in the amount of $6,000, and defendant agreed to pay the balance by paying $2,000 on October 7, 2004, with the remaining $2,000 being paid at the rate of $500 per month, commencing November 1, 2004. After defendant's release from jail, Anderson drove defendant to her residence in Toms River with defendant's promise that she would issue a check to cover the $2,000 that was due the following day. On arrival at her residence, defendant observed that the trailer in which she had been living on the property because of a fire to her residence, had been removed from the property. Anderson drove defendant to her sister's home located nearby, where he received the $2,000 check from defendant. Because defendant and her sister engaged in a heated argument, Anderson drove defendant to a motel.

Defendant FTA'd for her arraignment on October 7, 2004, and Judge Alvarez ordered the bail forfeited, and issued a third warrant for defendant's arrest. After the scheduled court appearance, but unrelated to the failure to appear (FTA), Dougherty telephoned Anderson that morning to ascertain who had posted the bail premium because Dougherty was under the impression that defendant was indigent. During that conversation, Dougherty advised Anderson of defendant's FTA, and Anderson made statements that led Dougherty to believe that he was informed of defendant's court date the day prior: "[B]ut he said that she was going to give him another check for $2,000[,] and she would bring that down the next day, [be]cause she had a [c]ourt date. That would have been on the 6th that he -- she told him that. But then they made arrangements that he would drive her home to[,] I believe[,] Toms River. And at that time she produced the other $2,000[] for him." On October 19, 2004, defendant was arrested, and incarcerated in the Ocean County Jail on unrelated charges of possession of control of dangerous substances and aggravated arson.

On October 21, 2004, the Finance Division forwarded a notice of bail forfeiture to the Surety pursuant to Rule 3:26-6(a). On October 25, 2004, Anderson filed a letter with the Law Division: 1) advising that he had not been aware of defendant's court date of October 7, 2004, defendant was presently incarcerated at the Ocean County Jail, and he contested the forfeiture; and 2) requesting that the bail bond be revoked.

On November 9, 2004, Cape May County, treating Anderson's letter as an informal motion for revocation of the bail bond, filed opposition to the Surety's motion to vacate forfeiture. On November 18, 2004, the State, acting on belief that defendant had been incarcerated at the time that she FTA'd on October 7, 2004, moved for reinstatement of the bail bond, and vacation of the bench warrant. The motion was granted. On the same day, after ascertaining that the premise for the motion was incorrect, the State moved to rescind its earlier decision, and reinstate bail forfeiture. Acting on the premise that the bail had been reinstated, the Surety filed a formal motion to revoke the bail bond because defendant was incarcerated, and it was unlikely that she would be able to post bail. On December 16, 2004, the return date of the motion, the judge advised that a mistake had been made by court staff on the order of November 18, 2004, the bail was not reinstated and remained forfeited.

On January 27, 2005, the Surety filed a motion to set aside the forfeiture, exonerate and discharge itself from all liability. The motion was opposed. Because the Surety disputed Dougherty's statement that Anderson was aware of defendant's court date on the day that bail was posted, the motion judge conducted a plenary hearing, at which Dougherty and Anderson testified.

Dougherty testified both on direct and rebuttal in accord with her prior statement. Anderson testified he was never informed by defendant on October 6, 2004, that she had a scheduled court appearance date for October 7, 2004. He denied making any contrary statements to Dougherty, and stated that he had requested Dougherty to reschedule defendant's court appearance date. Anderson testified that during his drive to defendant's home on October 6, 2004, defendant had inquired how she would learn of her future court date, and he responded that she would receive written notice from the court. Acknowledging that he learned of defendant's FTA on the morning of October 7, 2004, during his telephone conversation with Dougherty, Anderson stated he did not believe he was required to advise the Superior Court where defendant was located, or take any affirmative steps to have her surrender to the court. Between October 7, 2004, and the date of defendant's arrest in Ocean County, twelve days, Anderson remained in telephone contact with defendant, and conducted drive-by surveillances of the motels where she was staying, checking to see whether her vehicle was present. Conceding that he never stopped to talk to defendant during his surveillances to inquire whether defendant had received notice from the court for a rescheduled court date, Anderson explained his failure to make inquiry stating: "[w]hy would I want to spook her to move, and . . . I would [not] able to keep in touch with her."

On May 19, 2005, after determining that Dougherty's testimony was more credible than that of Anderson, the judge determined: 1) defendant had been advised on September 29, 2004, by Doughterty of an arraignment date of October 7, 2004; 2) Anderson was informed on October 6, 2004, by defendant of her October 7, 2004 court date; 3) Anderson conducted "a degree of close supervision [of defendant] while out on bail" as evidenced by his telephone communications with defendant and his drive-by surveillances of defendant at the motels; 4) Anderson was aware that there "was an issue" with defendant's bail status during the time he was conducting the surveillances as evidenced by his testimony concerning "spooking off Ethridge;" and 5) Anderson never took any affirmative steps during defendant's twelve-day fugitive status by "turn[ing] her in or advis[ing] anyone else where she was . . . because of the financial incentive to him of his client not being rearrested on the new failure to appear, or at least in his mind."

Following Administrative Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Nov. 17, 2004 (Directive # 13-04), the motion judge ordered a forfeiture of 60% of the bond, and 40% remission to the Surety. A confirming order was entered on June 6, 2005, adjudging: 1) "The amount of forfeiture is 60% of the bond . . . $60,000[]; 2) [$25,000] . . . of the aforesaid amount is to be immediately proportionately disbursed between the State of New Jersey and Cape May County;" 3) "$35,000[] . . . is not to be disbursed unless and or until a disposition occurs in the Ocean County charges;" 4) "In the event of a conviction of any crime as [it] relates to [the Ocean County charges] the $35,000[] will be proportionately disbursed between the State of New Jersey and the County of Cape May;" and 5) "In the event of an acquittal or dismissal of the [Ocean County charges], the $35,000[] is to be returned to the [S]urety by the Finance Division forthwith." On August 3, 2005, an order was entered denying a stay of the disbursement of the first $25,000 of the forfeiture, but staying the Surety's payment of the balance ($35,000) pending appeal.

On appeal, the Surety argues:

POINT I.

THE BAIL BOND FORFEITURE ENTERED HEREIN SHOULD BE VACATED PURSUANT TO RULE 3:26-6(b) BECAUSE THE DEFENDANT DID NOT RECEIV[E] ACTUAL NOTICE OF THE OCTOBER 7, 2004 COURT DATE.

POINT II.

THE BAIL BOND FORFEITURE ENTERED HEREIN SHOULD BE VACATED PURSUANT TO RULE 3:26-6(b) BECAUSE THE POSTING AGENT DID NOT RECEIVE ACTUAL NOTICE OF THE OCTOBER 7, 200[4] COURT DATE.

POINT III.

THE BAIL BOND FORFEITURE SHOULD BE SET ASIDE WHERE NOTICE OF THE FORFEITURE WAS NOT SERVED UPON THE SURETY IN THE MANNER PRESCRIBED BY THE RULES OF COURT.

POINT IV.

THE TRIAL COURT[] ERRED IN FAILING TO CONSIDER ALL OF THE EQUITABLE FACTORS SET FORTH IN THE CASE LAW PERTAINING TO REMISSION OF FORFEITURE BEFORE MAKING ITS DETERMINATION IN THIS MATTER.

POINT V.

THE TRIAL COURT ERRED IN ASSESSING COSTS AGAINST THE SURETY WHERE THE DEFENDANT WAS ARRESTED AND CHARGED WITH A CRIME WHILE RELEASED ON THE SURETY'S BAIL.

An appellate court's scope of review of a trial court's determination is limited. Factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (second alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

"Bail is money or a bond deposited with the court in order to obtain the temporary release of the defendant on the condition that the defendant will appear in court, when required, and comply with the conditions of bail." Directive #13-04, Attachment A, New Jersey Judiciary Bail Recognizance Form and Instructions (Superior and Municipal Courts), Instructions for the Preparation of the Bail Recognizance, VI, Glossary of Terms, at 6. A bail bond is "[a] written undertaking executed by the defendant or surety, that the defendant will appear at any required court proceedings[,] and that if the defendant fails to do so, the signers of the bond will pay to the court the amount of money specified in the court order setting bail." Id. at 6-7. "A recognizance is a bond or contractual obligation of record entered into, binding the defendant to be in court at all stages of the proceedings. It is a legal document pledging a sum of money subject to forfeiture, if the allegation is not fulfilled." Id. at 7. Because a recognizance is a contractual obligation, "the traditional rules of contract law are applicable. The recognizance must be construed according to its expressed terms. The plain meaning may not be modified where no ambiguity exists." State v. Rice, 137 N.J. Super. 593, 600 (Law Div. 1975), aff'd. o.b., 148 N.J. Super. 145 (App. Div. 1977).

Bail forfeiture proceedings are governed by Rule 3:26-6 and the Remittitur Guidelines contained in Directive #13-04. "Upon breach of a condition of a recognizance, the court on its own motion shall order forfeiture of the bail, and the finance division manager shall forthwith send notice of the forfeiture [to] . . . any surety or insurer, bail agent or agency whose names appear on the bail recognizance." R. 3:26-6(a). "The notice shall direct that judgment will be entered as to any outstanding bail[,] absent a written objection seeking to set aside the forfeiture, which must be filed within 75 days of the date of the notice." Ibid. Before or after the entry of judgment, the court may "direct that an order of forfeiture or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice." R. 3:26-6(b). If the forfeiture is not "set aside or satisfied" within seventy-five days of date of notice, the court shall "summarily enter a judgment of default for any outstanding bail." R. 3:26-6(c). However, if required "in the interest of justice," the court, after the entry of judgment, "may remit [bail] in whole or in part." Ibid.

The Remission Guidelines contained in Directive #13-04 were approved by the Supreme Court after this court's trilogy of cases in 2003 that set parameters for remissions in certain cases. State v. Clayton, 361 N.J. Super. 388 (App. Div. 2003); State v. Dillard, 361 N.J. Super. 184 (App. Div. 2003); and State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003). In determining whether to grant a remission, and if so the amount to be remitted, the trial court is required to weigh the following factors:

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 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.

[Directive #13-04, Attachment F, Remittitur Guidelines (Superior and Municipal Courts), Factors to Weigh in Determining Remission, at 1 (internal citations omitted).]

The Guidelines "provide judges with a starting point when determining whether to grant a remission, and, if so, the amount to remit." Id. at 2. Judges are cautioned that "the particular facts in an individual case will determine whether the amount to remit [should be] increased or decreased" from the amounts recommended therein. Ibid. The Guidelines recommend a minimal, partial, or substantial remission of bail at certain percentages where the defendant is not a fugitive when the remission motion is filed, depending upon whether the defendant had committed a new crime while a fugitive. Id. at 3-4. The differences in the recommended amounts to be remitted are substantial. Ibid.

We have considered each of the Surety's arguments in light of the record and applicable law, and are satisfied that the issues raised under Points I, II, and III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We determine that there is credible, substantial evidence in the record to support the motion judge's conclusion that defendant had received advice of her court-required arraignment date of October 7, 2004, and Anderson received notice of the pending court date from defendant on the evening bail was posted. Dougherty testified that she verbally advised defendant of her court required arraignment date of October 7, 2004, on September 29, 2004, during her interview with defendant at the jail. The notation of the arraignment date on the 5A form corroborates her testimony. After having the opportunity to assess the credibility of the witnesses, the judge determined Dougherty was more credible, and accepted her testimony that Anderson had admitted he had been informed of the court date by defendant on October 6, 2004, when plans were made for defendant to deliver a $2,000 check to Anderson the following day.

We determine the Surety's reliance on State v. Whaley, 168 N.J. 94 (2001), for the proposition that the court was required to have provided an in-court notice to defendant before an FTA warrant could be issued and bail forfeited, is misplaced. Whaley concerns the requisite notice that must be provided to a defendant under Rule 3:16(b), before a trial court may "infer[] that a knowing waiver of the right to be present at trial has occurred," and proceed with the trial of defendant in absentia. Whaley, supra, 168 N.J. at 102.

We also reject the Surety's argument that the forfeiture should have been set aside because the notice of forfeiture was not timely issued or served on the Surety's agent under Rule 3:26-6(a). The rule does not require that the notice of forfeiture be issued by the finance division within a specified number of days, only that the notice be issued "forthwith." "Forthwith" means "within a reasonable time." Webster's Third New International Dictionary 895 (1971). See State v. Baker, 3 N.J. Misc. 324, 317 (1925) ("Forthwith" means "promptly; within a reasonable time; with all convenient dispatch."). See also United States v. Bedford, 519 F.2d 650, 655 (3rd Cir. 1975) (As to the execution of a warrant, "forthwith" in practice means "within a reasonable time after its issuance."); United States v. Funds Representing Proceeds of Drug Trafficking, 52 F. Supp. 2d 1160, 1167-68 (C.D. Cal. 1999) (quoting Dickerson v. N. Trust Co., 176 U.S. 181, 193, 20 S. Ct. 311, 315, 44 L. Ed. 423, 431 (1900)) ("Forthwith" means "as soon as by reasonable exertion, confined to the object, it may be accomplished. . . . It has a relative meaning, and will imply a longer or shorter period, according to the nature of the thing to be done."). We are satisfied that the issuance of the notice of forfeiture within fourteen calendar days of defendant's FTA complies with the rule.

Because the notice was issued two days after defendant was incarcerated in Ocean County, we determine the issue of whether the notice should have been mailed directly to Anderson, as well as the Surety is moot. Although the notice did not serve any purpose concerning defendant's fugitive status, it did fulfill the purpose of notifying the Surety of its right to contest the forfeiture which Anderson did four days after the notice was issued.

We next address the Surety's arguments under Points IV and V. The Surety argues that the trial judge erred by failing to consider the remission factors outlined in State v. Hyer, 122 N.J. Super. 177, 180 (App. Div. 1973), as adopted by the Court in State v. Peace, 63 N.J. 127, 129 (1973). The Surety contends that the State failed to produce evidence that it suffered any costs caused by defendant's FTA, recapture, or the enforcement of the forfeiture. The Surety asserts, even assuming the State or County did incur expenses, that the judge erred by not considering whether the reimbursement of any such expenses would "adequately satisfy the interest of justice or whether an additional amount was properly retained by the State/[C]ounty in consideration of the intangible harm to the public interest resulting from defendant's deliberate failure to make an appearance." Lastly, the Surety argues that the terms of the recognizance do not obligate it to compensate the State and County for crimes that defendant was charged with while on bail. The County counters that the motion judge properly considered the Hyer remission factors as now contained in Directive #13-04, including the determination of whether defendant committed another crime while a fugitive. Because we are satisfied that the motion judge did not consider all the remission factors contained in Directive #13-04, we reverse that portion of the order of June 6, 2005 directing a forfeiture of 60% of the bail bond.

The judge properly considered factors (1) whether the Surety made a reasonable effort to effect the recapture of defendant; (3) the Surety's supervision of defendant while she was on bail; (4) the length of time defendant was a fugitive; and (8) the amount of posted bail. However, our review of the trial judge's decision of May 19, 2005, fails to disclose the consideration of factors (5) any prejudice to the State and the expense incurred by the State as a result of defendant's FTA; and (6) if there were expenses incurred by the State, whether the reimbursement of those expenses would adequately satisfy the interest of justice. While we acknowledge the judge's consideration of defendant being arrested in Ocean County on additional or new charges, factor (7), there was never a determination as to whether the charges arose out of acts committed while defendant was a fugitive. We note that one of the charges is for aggravated arson, and when Anderson drove defendant home on the evening of October 6, 2004, he observed that defendant's premises had been damaged by fire. Whether or not the aggravated arson charge pertains to the house Anderson observed damaged by fire, it was incumbent on the State to prove and the trial judge to determine that the act of arson occurred while defendant was on bail. Accordingly, we remand the matter for reconsideration of the Surety's motion in accord with all remission factors contained in Directive #13-04.

Affirmed as to the trial court's denial of the motion to set aside forfeiture; reversed and vacated as to that portion of the order of June 6, 2005 directing a forfeiture of 60% of the bail bond, and remanded for reconsideration as to the amount of remission. We do not retain jurisdiction.

 

Three bonds in the amounts of $25,000, $25,000, and $50,000 (total $100,000) were posted to secure the release of defendant, Mary Jo Ethridge. Because all of the bonds were posted for a single defendant on a single charge, we refer to the three bonds in the singular for the purpose of this decision.

We take judicial notice that four of the fourteen calendar days fell on Saturdays and Sundays when the finance division would not have been open. N.J.R.E. 201(b).

(continued)

(continued)

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A-5899-04T1

August 3, 2006