STATE OF NEW JERSEY v. DAVID PEREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1104-08T11104-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID PEREZ,

Defendant,

and

ALLEGHENY CASUALTY COMPANY,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 14, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1252-I.

Richard P. Blender, attorney for appellant.

Thomas F. Kelso, Middlesex County Counsel, attorney for respondent (Niki Athanasopoulos, Deputy County Counsel, on the brief).

PER CURIAM

Allegheny Casualty Company (Allegheny) appeals from an order compelling it to forfeit 47.5% of the $35,000 bail bond it posted for defendant David Perez (defendant). Allegheny argues that the amount of the forfeiture was excessive, the trial judge failed to consider all relevant factors, and the judge failed to make adequate findings in support of her decision. We reject these arguments and affirm.

Allegheny posted the bond on July 12, 2005. Defendant failed to appear in court for an arraignment/status conference on October 17, 2005. As a result, the judge issued an order forfeiting the bail and issued a warrant for defendant's arrest. Notice of the order was immediately forwarded by the court to Allegheny. Because Allegheny failed to file a written objection within seventy-five days, default judgment was entered on January 4, 2006 against Allegheny for $35,000. See R. 3:26-6(a).

On March 17, 2006, Allegheny moved to extend the time required to surrender defendant and to vacate the forfeiture. Defendant was still a fugitive and the motion was denied on January 9, 2007. On October 23, 2007, Allegheny moved to vacate the judgment, contending that defendant had been arrested and detained in Florida on August 29, 2007 and was in custody in that state. Members of the Middlesex County Prosecutor's Office confirmed defendant's custodial status. According to Allegheny, defendant did not commit a new crime but was detained by immigration authorities. According to information received by the Middlesex County Prosecutor's Office, defendant was detained for drug trafficking offenses. Defendant had been at large for about twenty-six months from the time the bond was posted.

In support of its motion, Allegheny provided the certification of Richard Sparano, the owner of AA Bail Bonds, Allegheny's agent. In the certification, dated April 2008, Sparano stated that the bail had been written by an agent who was terminated "three years ago." Sparano further stated that the agent did not submit to the company the necessary information and that the bail was written without the necessary authorization from AA Bail Bonds. Sparano stated that his first notice of the bail was upon receipt of the forfeiture notice. Sparano further certified that his office immediately commenced an investigation to locate defendant, setting forth some of the steps taken, and learned that defendant was arrested on August 29, 2007 in Florida. At that time, his investigators notified the fugitive squad of the Middlesex County Prosecutor's Office so a detainer could be placed against defendant.

The remittitur guidelines issued by the Administrative Director of the Courts, relying upon authoritative judicial decisions, set forth the policy concerns in remission determinations, listing eight factors to be weighed in making such determinations and requiring a balancing of those factors. See State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); Directive #13-4, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004). The guidelines set forth schedules which provide a "starting point" for the remission determination, taking into consideration the identified factors. Toscano, supra, 389 N.J. Super. at 371-72; see also State v. Ramirez, 378 N.J. Super. 355, 366-69 (App. Div. 2005) (setting forth in full the guidelines schedules).

Without dispute, Allegheny provided no supervision of defendant while he was released on bail. Allegheny is a commercial bondman. The judge credited Sparano's certification that Allegheny made substantial efforts to locate defendant when he became a fugitive. The judge also gave Allegheny the benefit of the doubt regarding conflicting information as to whether defendant had committed another offense while on bail. The judge declined to credit the hearsay information provided by the State that defendant was being held in Florida on new drug trafficking charges. Instead, the judge analyzed the matter assuming that defendant had not committed a new offense while on bail. The judge considered the length of time defendant had been a fugitive. The judge also considered the tangible and intangible harm to the State as a result of defendant's nonappearance.

The judge correctly utilized Remission Schedule 2, which is applicable where a defendant is not a fugitive when the remission motion is made and did not commit a new crime while a fugitive. Under that schedule, because of the judge's finding that Allegheny provided minimal or no supervision while defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant, the judge determined that partial (as opposed to minimal or substantial) remission was appropriate. The remission guideline under those circumstances provides that if the time at large was between six and forty-eight months, generally 20% to 75% of the balance should be remitted. After having discussed all of the factors in greater detail, and having determined the appropriate remission schedule and applicable provisions of that schedule, the judge then summarized her findings as follows:

I calculate the time, at large, in Mr. Perez's case, to be approximately 26 months. And, therefore, the range consideration, after the State is reimbursed for costs, would be between 20 to 70 percent of the balance remitted under the circumstances in this case, taking into consideration the reasonable efforts made under the circumstances, to locate and effectuate the recapture of this defendant, that the surety did upon learning of, as indicated earlier, the bench warrant and forfeiture, did actively seek out and eventually locate this defendant.

The applicant is a commercial bondsman. And although those two factors weigh in favor of the surety, there is a, as I indicated earlier, a lack of supervision, while out on bail. The length of time, again, approximately 26 months, and further considering the prejudice to the State, as the result of the fugitive's non-appearance, clearly, the intangible harm that occurs, as a result of the defendant's non-appearance, on his criminal matters, and recognizing to the extent that there should be an insensitivity maintained or provided, so that a surety does, or will in the future, continue to bond individuals.

And, therefore, prevailing, a defendant's right -- securing a defendant's right to be released, predispositionally, taking all these factors into consideration, this would appear to be a case where the efforts would seem to be many, in favor of the mid-range of the guidelines, between 20 percent and 75 percent, for remission, in the amount of 47 and a half percent. In this case, no monies were paid in the matter. So, the percentage is applied in terms of the amount forfeited, at 47 and a half percent.

We reject Allegheny's argument that, without analysis and sufficient findings, the judge merely "split the difference" between 20% and 75% by ordering a 47.5% remission. On the contrary, the judge considered each applicable factor and weighed those factors in favor of or against the surety. The judge was sensitive to the policy considerations underlying remission determinations - to provide an incentive to sureties to take active and reasonable steps to recapture fugitive defendants, while not unduly discouraging sureties in their willingness to post bail. See State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). In balancing all of those factors, the judge concluded that a midrange remission, within the parameters recommended in the guidelines, was appropriate. We find no mistaken exercise of discretion in this determination.

This was a routine set of circumstances, and the judge acted well within her discretion in determining that there was no basis to deviate from the remission range recommended in the guidelines. Our review of the record persuades us that the judge appropriately considered all relevant factors and reached an adequately articulated result, with which we have no occasion to interfere.

Affirmed.

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A-1104-08T1

September 28, 2009