STATE OF NEW JERSEY v. DAVID W. TAYLOR, SR and SAFETY NATIONAL CASUALTY CORP SURETY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1101-08T11101-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID W. TAYLOR, SR.,

Defendant,

and

SAFETY NATIONAL CASUALTY CORP.,

(SURETY),

Defendant-Appellant.

___________________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges Axelrad and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-02-153-I.

Samuel M. Silver, attorney for appellant.

Kavanagh, Kavanagh & DiLazzero, attorneys for respondent (Brendan J. Kavanagh, on the brief).

PER CURIAM

Safety National Casualty Corporation (Safety) appeals from the order entered by the Law Division forfeiting $18,750 of the $25,000 bond posted on behalf of defendant, David W. Taylor, Sr. Safety contends the court failed to consider all of the requisite factors before entering a forfeiture of 75% of the bail bond amount and failed to articulate the reasons for its determination. We are not persuaded by Safety's arguments and affirm.

The facts are not in dispute. Safety, a commercial surety, posted bond in the amount of $25,000 for Taylor on November 16, 2007. No evidence was presented that Safety engaged in any monitoring efforts. Taylor failed to appear in court as required on February 20, 2008, at which time bail was forfeited and a bench warrant was issued for his arrest. A Notice of Bail Forfeiture was generated by the court on May l0, 2008, and was received by the surety a few days later. See R. 3:26-6(a). On April 25, 2008, Safety's bail supervisor checked a website and located Taylor in the Cumberland County jail, where he had been incarcerated since April l6, when arrested for burglary.

Safety filed a motion to vacate the bail forfeiture. It acknowledged that its contact with Taylor before his failure to appear did not rise above the level of "minimal supervision." It argued, however, that the slightly more than a month delay in assigning the file to a recovery agent still fell within the meaning of "immediate, substantial efforts to recapture" and that the surety did all that it could do, which essentially was to find the person incarcerated. The surety further argued that no proofs were submitted as to the State's expenses. Accordingly, Safety urged that pursuant to the Remittitur Guidelines, it should receive 40% of its bond.

By order of August l8, 2008, the court rejected the surety's argument that it exercised substantial efforts to recapture, concluding that the efforts to recapture were "perhaps moderate" and Safety was only entitled to remission of 25% ($6250) of its bond under Remission Schedule 3, as Taylor had been at large six months or less. This appeal ensued, during which Safety renews its arguments made to the motion judge as to its "substantial efforts to recapture" and further challenges the judge's lack of articulation of specific findings.

The Remittitur Guidelines were developed to provide judges with a starting point when determining whether to grant a remission and, if granted, the amount to remit. Guidelines, supra, at 4 (citing State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); R. 3:26-6(b)). The guidelines require a court to consider the particular facts of an individualized case and the case law, and weigh the relevant factors in accordance with the policy concerns to determine whether to increase or decrease the remission amount indicated by the schedules. Ibid. (citing State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007)). The court should then make a record of the factors considered and the reasons for its findings. Ibid. (citing State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005)). The factors to be weighed in determining whether to remit bail and the amount to be remitted include: whether the surety has made a reasonable effort to effect the recapture of the fugitive defendant; whether the applicant is a commercial bondsman; the surety's supervision of the defendant while he or she was released on bail; the length of time the defendant is a fugitive; the prejudice to and expense incurred by the State as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture and whether the reimbursement of the State's expenses will adequately justify the interests of justice; and the amount of the posted bail. Guidelines, supra, at 1-2.

Remission Schedule 3 provides in pertinent part:

Minimal Remission

Where the surety provided minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture the defendant, minimal remission is warranted subject to the weighing of the factors previously identified.

REMISSION GUIDELINE:

State is reimbursed its costs.

If time at large 10% of the balance

12 months or less remitted

Partial Remission

Where the surety provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant;

. . . .

Partial remission is warranted subject to the weighing of the factors previously identified.

REMISSION GUIDELINE:

State is reimbursed for its costs.

If time at large 40% of the balance

6 months or less remitted

The surety argues it should have been placed squarely within the "partial remission category" because it engaged in "immediate substantial efforts to recapture the defendant" and the motion judge abused his discretion in not remitting 40% of the bond the surety posted for Taylor. We disagree. Safety sat on its file for about six weeks after receiving the court notice of bail forfeiture before taking any action on the file. At that time the recovery agent learned by a simple computer search that Taylor had been taken into custody at the county jail a week earlier, when he was arrested for burglary. Thus, the surety played no part in actually returning Taylor to custody, which it might have been able to do if it had responsibly and promptly assigned the file to a recovery agent and diligently sought to recapture the fugitive after receipt of the failure to appear and bail forfeiture notice. Accordingly, we are satisfied the record supports the motion judge's finding that Safety failed to engage in immediate substantial efforts to recapture Talyor, and thus the judge did not abuse his discretion in picking a mid-point number between the remission guidelines for minimal and partial remission. Although there is no evidence in the record regarding the State's expenses and prejudice to the State as a result of Taylor's non-appearance, recapture and enforcement of the forfeiture, we are nonetheless satisfied the judge considered and weighed the appropriate factors and policy considerations under the circumstances of this case and adequately articulated the basis for his finding.

 
Affirmed.

Remission Schedule 3 is applicable where a defendant is not a fugitive when the remission motion is made and defendant did commit a new crime while a fugitive. See "Revised Remittitur Guidelines," Administrative Directive #13-04, effective October 9, 2007; further revised November l2, 2008. The 2008 Guidelines that became effective after the motion judge's decision only added a provision regarding "deportation of defendant while on bail," which is not applicable to this case. Accordingly, all references in this opinion will be to the 2008 Guidelines.

To avoid double counting, absent a special reason based on the facts of the case, Remission Factor 7, the defendant's commission of another crime while a fugitive, should not be used as a basis to increase or decrease the remitted amount when applying Remission Schedule 3. Guidelines, supra, at 5 (citing Toscano, supra, 389 N.J. Super. at 372-73 n.2).

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A-1101-08T1

 

December 10, 2009