STATE OF NEW JERSEY v. VAN HOLLOWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3078-07T13078-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VAN HOLLOWAY,

Defendant,

and

ALLEGHENY CASUALTY CO.,

Defendant-Appellant.

________________________________________________

 

Submitted November 19, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-00148-I.

Richard P. Blender, attorney for appellant.

Kavanagh & Kavanagh, attorneys for respon-dent (Brendan J. Kavanagh, on the brief).

PER CURIAM

The surety in this case appeals an order that remitted only 75% of the $30,000 bond forfeited when defendant failed to appear as required. Because the trial judge failed to give weight to the size of the bond and the extremely brief period of time defendant remained a fugitive, we vacate the order under review, exercise original jurisdiction, and direct the entry of an order remitting 90% of the bond.

The record reveals that defendant Holloway was released from custody when appellant Allegheny Casualty Co. (the surety) posted a $30,000 bond. Defendant failed to appear in court as required on July 25, 2007. A bench warrant was issued and the bail forfeited. Nine days later -- before notice of the forfeiture was even mailed to the surety -- defendant was apprehended and remanded to the county jail.

The surety moved on September 14, 2007 to vacate the bail forfeiture. On the return date, the trial judge determined that the surety had required defendant, while he was out on bail, to periodically report and that defendant had complied. The judge viewed the reporting requirements to be minimal. However, because defendant was quickly recaptured within days of his failure to appear and because defendant had not committed a crime in the interim, the judge determined that the surety should be viewed as having engaged "in immediate and substantial efforts to recapture the defendant." Considering these facts, to which we defer, the judge applied Directive #13-04: Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F: Remittitur Guidelines (November 17, 2004; supplemented November 12, 2008), and concluded that this case called for "partial remission." In "partial remission" circumstances, the Guidelines suggest there should be 0% to 20% remission if the defendant is at large over forty-eight months; 20% to 75% remission if the defendant was at large between six and forty-eight months; and 75% remission if the defendant was at large for six months or less. Observing that defendant was a fugitive for less than six months, the judge ordered a 75% remission. Although the Guidelines suggest the general soundness of that determination, we conclude that the judge failed to adequately consider, or consider at all, either the size of the bond or the extremely brief period of time defendant was a fugitive. As our Supreme Court has cautioned, the Guidelines provide "a starting point," and that "the particular facts" of a given case may warrant an increase or decrease from the starting point suggested by the Guidelines. State v. Ventura, 196 N.J. 203, 215 (2008). See also State v. Ruccatano, 388 N.J. Super. 620, 624 (App. Div. 2006).

In addition, we have held that the "amount of the posted bail is a factor to be considered," illustrating its importance by way of the following example: "fifty percent of a $100,000 bond is a very different matter from fifty percent of a $5,000 bond." State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). Considering that the most relevant factor in such matters would be the actual cost to the State in obtaining a fugitive's return -- a figure not provided and likely not available here -- the proper amount of remission turns on all relevant intangible factors. Once a court has quantified the other factors we have already mentioned, and determined the "starting point" suggested by the Guidelines, it is further helpful to consider the amount derived from the remission percentage suggested by the Guidelines. Here, a remission of 75% permits a forfeiture to the county of $7,500. Weighing this figure with the fact that defendant was a fugitive for a mere nine days, we conclude that strict compliance with the Guidelines in this situation leads to an inequitable result.

As in similar matters, pursuant to Rule 2:10-5, we exercise original jurisdiction, see State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003); State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003); de la Hoya, supra, 359 N.J. Super. at 196, and conclude that an application of the judge's findings regarding the reporting requirements, together with the further consideration of the very brief period of time defendant was a fugitive and the overall size of the bond, warrant a 90% remission. We vacate the order under review and remand the matter to the trial judge for the entry of an appropriate order in conformity with this opinion.

Vacated and remanded.

(continued)

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A-3078-07T1

December 5, 2008