STATE OF NEW JERSEY v. KENNETH ROBINSON and AMERICAN RELIABLE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1885-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH ROBINSON,

Defendant,

and

AMERICAN RELIABLE INSURANCE

COMPANY,

Defendant-Appellant.

_______________________________________

December 8, 2009

Submitted November 9, 2009 Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-09-01108.

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

American Reliable Insurance Company (American) appeals from an order entered by the trial court on January 28, 2008, denying its motion to set aside a bail forfeiture and for remission of the forfeited bail. We affirm.

Defendant Kenneth Robinson was released on bail, after American posted a surety bond in the amount of $35,000, through its agent, Aaron Bail Bonds (Aaron). On November 8, 2004, defendant failed to appear for sentencing and the trial court issued a bench warrant for his arrest. Thereafter, the court entered an order pursuant to Rule 3:26-6(a) forfeiting bail and on February 2, 2005, a default judgment was entered against American pursuant to Rule 3:26-6(c).

On or about March 4, 2005, American filed a motion to set aside the forfeiture and discharge the bond. American asserted that, after defendant failed to appear, it took steps to locate him. According to American, defendant had been arrested on December 22, 2004, in North Carolina and was incarcerated there. The trial court denied American's motion. The court found that the surety's primary obligation of the bond remained unsatisfied because defendant had not yet been returned to New Jersey. The court ruled that American could seek remission of the forfeited bail upon defendant's return to this state. American appealed the court's determination.

We reversed the trial court's order, concluding that court erred by finding that the surety's essential undertaking under the bond would not be fulfilled until such time as defendant is produced in New Jersey. State v. Robinson, No. A-5296-05 (App. Div. June 14, 2007) (slip op. at 7). We noted that the recapture of a defendant who failed to appear constitutes the partial fulfillment of the surety's undertaking, even though the defendant is being held in another jurisdiction pending extradition. Ibid.

We remanded the matter to the trial court for reconsideration of American's motion. We stated that some "small remission" of the forfeited bail might be appropriate unless the court determined that relief was not warranted, upon consideration of all of the relevant factors and public policy concerns. Id. at 7-8.

American thereafter submitted a certification to the trial court from Veton Binakaj (Binakaj), in which he explained the steps that Aaron had taken to ensure that defendant appeared in court. Binakaj also explained the procedures that Aaron generally follows when it attempts to locate a defendant who has failed to appear.

The State submitted a certification from Lieutenant Christoper Engram (Engram), in which he stated that defendant had been arrested on February 22, 2005, in North Carolina on a fugitive from justice warrant and local charges involving a controlled dangerous substance (CDS). After his arrest, defendant was incarcerated in the Guilford County Jail. The Middlesex County Prosecutor's Office (MCPO) lodged a bench warrant with the North Carolina authorities and awaited disposition of the local charges before making arrangements for defendant's extradition to New Jersey.

In addition, Engram stated that on March 2, 2005, the MCPO confirmed that defendant was still in custody in the Guilford County Jail. On March 8, 2005, an assistant prosecutor for Middlesex County approved defendant's extradition and lodged a detainer with the North Carolina authorities. On May 19, 2006, the MCPO again confirmed that defendant was incarcerated in the Guilford County Jail and its detainer was in place.

Engram also stated that on June 7, 2006, the MCPO was informed that defendant had been sentenced on the CDS charges but was refusing to return to New Jersey. The MCPO also was told that defendant was facing additional charges in North Carolina and would not be returned to New Jersey until those charges were resolved.

Engram also recounted that on June 11, 2007, the MCPO sought confirmation that defendant was still in custody in the Guilford County Jail and inquired as to when he would be released for transport to New Jersey. The Guilford County Sheriff's office advised that defendant had been released from custody on June 20, 2006. Engram stated that, as of October 5, 2007, defendant remained a fugitive.

The trial court considered the matter on January 28, 2008, and placed its decision on the record on that date. The court found that Binakaj's certification was "vague and non-specific" and provided insufficient details concerning the surety's efforts to supervise defendant and ensure his appearance in court. The court additionally found that the State had been prejudiced because it had been forced to devote resources to its efforts to secure defendant's return to New Jersey. The court noted that defendant's failure to appear had placed the State's prosecution "on hold[.]"

The court also noted that defendant had committed new offenses before being taken into custody in North Carolina in February, 2005. Furthermore, defendant had returned to fugitive status after his release from jail in North Carolina. The court found that, under the circumstances, remission of the forfeited bail was not warranted, although remission could be considered if defendant is again taken into custody. The court entered an order dated January 28, 2008, denying American's motion. This appeal followed.

American argues that the trial court erred by denying its motion to set aside the bail forfeiture and for remission of the forfeited bail. American contends that remission was warranted because defendant was in custody in North Carolina when it first moved to set aside the forfeiture. American says that the fact that defendant was subsequently released by the North Carolina authorities and remains a fugitive should not have been considered by the trial court on remand. American also argues that there was insufficient evidence to establish that defendant was convicted of new offenses while he was a fugitive.

We are not persuaded by these contentions. "'[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. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007) (quoting State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003)). The party seeking a remission of forfeited bail "bears the burden of proving [that] 'it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest.'" Id. at 227 (quoting State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)).

We are satisfied that, in denying American's motion, the trial court did not abuse its discretion. The court properly considered the relevant factors under State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003), and State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000), as well as the relevant policy concerns articulated in State v. de la Hoya, 359 N.J. Super. 194, 198-99 (App. Div. 2003). In our judgment, the trial court did not err by determining that American was not entitled to relief at this time, particularly in view of the fact that defendant had again returned to fugitive status.

Furthermore, Engram's certification provided prima facie evidence that defendant had been convicted of new offenses that he committed while a fugitive. Engram stated that in February 2005, defendant was arrested in North Carolina on CDS charges. The MCPO was informed that defendant was sentenced on those charges in June 2006. The logical inference to be drawn from this evidence is that defendant was convicted of offenses committed while he was a fugitive. American presented no evidence to prove otherwise.

We accordingly affirm the trial court's order substantially for the reasons that the court placed on the record on January 28, 2008. R. 2:11-3(e)(1)(A). American may renew its motion for remission of the forfeited bail if defendant is located and returned to custody.

Affirmed.