STATE OF NEW JERSEY v. MICHAEL GALLAGHER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6667-04T16667-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GALLAGHER,

Defendant,

and

SAFETY NATIONAL CASUALTY

CORPORATION,

Defendant-Appellant.

______________________________

 

Submitted August 8, 2006 - Decided August 18, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

04-06-02279-I.

Samuel M. Silver, attorney for appellant.

Deborah Silverman-Katz, County Counsel, attorney

for respondent (Donna M. Whiteside, Assistant County Counsel, on the brief).

PER CURIAM

This is a bail forfeiture appeal in which the surety appeals from an order, following the entry of judgment of forfeiture against it, remitting a portion of the forfeited bail asserted by the surety to have been insufficient under the circumstances. We affirm.

The facts may be briefly recited. Safety National Casualty Corporation (Surety) posted a $7500 bail bond to secure the release of a criminal defendant, Michael Gallagher. Subsequently, the defendant failed to appear in court as scheduled on October 18, 2004. Consequently, the bond was forfeited, a warrant issued for defendant's arrest, the surety received a notice of bail bond forfeiture on or about November 16, 2004, and a default judgment of forfeiture followed.

In the meantime, the defendant had been arrested by Camden County law enforcement officers, and his bench warrant executed on December 3, 2004, forty-seven days after he failed to appear in court. The surety first learned of the defendant's apprehension when its recovery agent contacted the Camden County Criminal Records Department and was advised that the defendant's warrant had already been executed.

As a result of the defendant's warrant execution, the surety moved to vacate the forfeiture judgment, exonerate the surety, and discharge the bond. The motion was returnable in the Law Division on July 6, 2005, at which time, following argument, the judge granted the surety a twenty-percent remission in the amount of $1500 and entered judgment against the surety in the amount of $6000. The judge reasoned:

First, the surety was a commercial surety, in this case, Safety National Casualty Corporation. Second, the bondsman's supervision of the defendant during the time of his release was wholly inadequate. Third, the length of time between the issuance of the bench warrant and its execution was 47 days, a fairly short period of time. Fourth, the County did allege expenses or prejudice to their case, by submitting an affidavit from the Sheriff of Camden County regarding the Fugitive Unit. Fifth, the prejudice to the State exists in every case. There is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case. [citations omitted]. This intangible element includes the "county's employment of a fugitive squad, the expenses resulting therefrom, and the county's efforts in enforcing forfeiture." [citation omitted]. Whether the defendant committed any new crimes while a fugitive can weigh very heavily against the interests of the surety. [citation omitted]. There is no evidence that such new crimes were committed in this case.

. . . .

The surety in this case has not presented any evidence to show that they had made any attempt to recapture or to monitor the defendant. The only piece of evidence that the defendant has offered was an affidavit showing that an agent of the surety had placed a call verifying that the defendant was in the custody of the Camden County Correctional Facility.

This appeal by the surety follows.

Rule 3:26-6(a) provides that upon a breach of a condition of bail, the court sua sponte shall declare a forfeiture, and absent an objection by the surety seeking to set the forfeiture aside, a judgment of forfeiture shall be entered within 75 days after the declaration of forfeiture. Paragraph (b) permits the court to "direct that an order of forfeiture . . . be set aside . . . if its enforcement is not required in the interest of justice upon such conditions as it imposes." R. 3:26-6(b). And paragraph (c) further authorizes the court, after judgment is entered, to "remit [the bail to the surety] in whole or in part in the interest of justice." R. 3:26-6(c).

"[T]he 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); see also State v. Peace, 63 N.J. 127, 129 (1973); 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.]

The primary consideration among the Hyers factors "is whether the surety has made reasonable efforts under the circumstances to effect the recapture of the fugitive defendant." Id. at 255. See also State v. Harris, 382 N.J. Super. 67, 71 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); State v. Dillard, 361 N.J. Super. 184, 187-88 (App. Div. 2003); Mercado, supra, 329 N.J. Super. at 271. Also, "the surety's supervision of the defendant while he is released on bail" is also "particularly significant". Harmon, supra, 361 N.J. Super. at 255; Dillard, supra, 361 N.J. Super. at 187-88.

The other Hyers factors include the corporate status of the surety, the length of time during which the defendant is a fugitive, the prejudice to the State and the expenses incurred by it resulting from the fugitive's non-appearance, recapture, and enforcement of the forfeiture, and whether reimbursement of the State's expenses will adequately satisfy the interests of justice. Hyers, supra, 122 N.J. Super. at 180. The detriment to the State also includes, as held by Peace, supra, 63 N.J. at 129, an unquantified "intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case."

[Harmon, supra, 361 N.J. Super. at 255.]

In applying these standards to the facts before us, we are satisfied that the twenty percent partial remission to the surety strikes a fair balance between the competing policy concerns and does not constitute an abuse of the court's discretion. The defendant here remained a fugitive for forty-seven days until his arrest on December 3, 2004. The record fails to demonstrate that the surety made any meaningful effort to supervise and monitor the defendant following his release on bail. Moreover, there is no indication that the surety even maintains a monitoring policy requiring regular reporting by the defendant, much less evidence of an attempt by the surety to ensure that defendant complied with the bail or bail contract conditions.

Equally perfunctory were any efforts by the surety to locate, apprehend and return the defendant to custody after receiving notice of forfeiture. There is no proof the surety conducted surveillance or other investigations, or otherwise expended significant costs to recapture the fugitive defendant, or played any role whatsoever in his apprehension. Rather, it relied exclusively on a telephone inquiry of the County Criminal Records Department to ascertain the status of the matter and if defendant had been arrested.

Seven of the consolidated sixteen bail forfeiture appeals in Harmon involved analogous circumstances as here. Harmon, supra, 361 N.J. Super. at 257. In each of those matters, we determined that, where the surety failed to supervise and monitor the criminal defendant following release on bail, the surety's subsequent efforts to effectuate the recapture of the fugitive were "minimal," and the time lapse between non-appearance and recapture was not inordinately long, a twenty percent remission to the surety is fair "to the competing interests of the surety, the indemnitor who has posted collateral, defendants' general interest in the availability of commercial bail, and the interests of the State." Ibid.

We conclude likewise here. Based on all the circumstances, including the surety's corporate status, its lack of meaningful supervision and monitoring of the defendant while on release, the failure to discharge its primary obligation to recapture the fugitive, and the intangible injury to the State due to the time the defendant remained at large, we are satisfied that the partial remission of only twenty percent is appropriate and not an abuse of discretion.

Affirmed.

 

The record does not reflect the criminal charges for which the bail was posted.

(continued)

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A-6667-04T1

 

August 18, 2006