STATE OF NEW JERSEY v. JOEL BURGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2999-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL BURGER,

Defendant,

and

FIRST INDEMNITY OF AMERICA

INSURANCE COMPANY,

Defendant-Appellant.

_______________________________________________

March 27, 2012

Argued November 16, 2011 - Decided

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-12-0439.

Edgardo F. Galleno argued the cause for appellant (Law Office of Edgardo F. Galleno, L.L.C., attorneys; Mr. Galleno, on the brief).

Joseph J. Bell, IV, argued the cause for respondent (The Bell Law Group, P.C., attorneys; Joseph J. Bell, of counsel; Mr. Bell, IV, on the brief).

PER CURIAM

First Indemnity of America Insurance Company (First Indemnity) appeals from an order dated January 14, 2011, which granted in part, but denied in part, its motion for remission of the forfeiture of the bail posted for defendant, Joel Burger.

On appeal, First Indemnity argues that the trial court erred in applying the guidelines issued by the Administrative Office of the Courts (AOC) for remission of forfeited bail, which it argues required a higher percentage of remission than what the trial court ordered. We are not persuaded by First Indemnity's arguments. Accordingly, we affirm.

The facts are not in dispute. First Indemnity, a commercial surety, posted bond for Burger on December 17, 2009, at the Warren County Superior Court in the amount of $20,000.

Burger was required to check in with the posting agent on a weekly basis, and attend all court appearances in accordance with the conditions of his release. Burger appeared in court on January 15, February 19, and May 6, 2010. On June 4, 2010, First Indemnity called Burger to inform him that he must check in with them. However, the telephone number Burger had provided was disconnected. The indemnitor on the bond, Burger's brother, informed First Indemnity that Burger was not living at the address First Indemnity had on file.

On June 21, Burger contacted First Indemnity's agent and informed it that he was living with his brother in Pennsylvania. Burger failed to appear in court on July 8, 2010, and the bond was forfeited.

On July 14, First Indemnity received notice of the forfeiture and assigned the case to its Fugitive Recovery Team three days later. First Indemnity contacted the indemnitor to ascertain Burger's whereabouts, but was unable to determine that information. First Indemnity assigned a private investigator to locate, apprehend, and surrender Burger. On July 27, the Fugitive Recovery Team notified the Warren County Criminal Division that Burger had been arrested and incarcerated in Northampton County, Pennsylvania on a parole violation. The Criminal Division was advised that a detainer had been lodged against Burger. On October 27, 2010, Burger was sentenced in Northampton County to incarceration at Pennsylvania State prison. As of January 11, 2011, Burger had yet to appear in Superior Court to answer the charges against him.

On October 1, 2010, the trial judge entered a $20,000 default judgment in favor of the State and Warren County against First Indemnity. Thereafter, First Indemnity moved to stay the execution of the $20,000 judgment against it and to vacate the bail forfeiture and/or judgment.

On January 14, 2011, the trial judge granted First Indemnity's motion in part, ordering that 75% of the $20,000 bail amount be remitted to First Indemnity.

On February 25, 2011, First Indemnity filed a notice of appeal, arguing the trial judge should have applied a different analysis, remitting 95% of the bail because First Indemnity demonstrated it provided close ongoing supervision of Burger while he was released on bail, and made immediate substantial efforts to recapture him after he failed to appear on July 8, 2010.

In a comprehensive written opinion setting forth both the salient facts and the applicable law, Judge John J. Coyle, Jr. denied First Indemnity's application in part. Judge Coyle found that First Indemnity provided minimal supervision while Burger was out on bail, and engaged in substantial efforts, albeit unsuccessful, to recapture him. Accordingly, 75% of the bail was ordered to be remitted to First Indemnity.

Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission are matters within the sound discretion of the trial judge. See State v. Peace, 63 N.J. 127, 129 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007). This discretion is not unguided.

In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we observed that the decision to remit bail and the amount of remission are equitable in nature, and the judge should consider at least eight identified factors. Those factors include: the corporate or private status of the surety; the nature and extent of supervision by the surety while the defendant is released on bail; the surety's efforts to return the defendant to custody; the time between the failure to appear and the return to custody; the prejudice to the State attributable to the absence of the defendant; the expense incurred by the State due to the absence of the defendant; and reimbursement of expenses incurred by the State. Ibid. The Supreme Court implicitly approved these factors and further noted that "[t]here 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." Peace, supra, 63 N.J. at 129.

The AOC promulgated Directive #13-03, which includes a set of guidelines (the Guidelines) for the disposition of requests for remission of sums forfeited.1 The initial version of the Directive was issued in December 2003, and reflected the legislation, court rules and case law governing admission to bail, forfeiture of bail, and application for remission of forfeiture. The Guidelines were reissued in Directive #13-04 in November 2004 in the same form. The October 2007 and the November 12, 2008 supplements to Directive #13-04 reflect subsequent rulings. See Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 3:26-6 (2012).

We turn to an evaluation of the issue before us. We start with certain basic principles. First, the surety bears the burden to prove that forfeiture is inequitable. State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975); State v. Singletary, 170 N.J. Super. 454, 458 (Law Div. 1979). When the surety seeks partial or total remission of a forfeiture, the surety must "show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody[.]" State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000). The State bears the simple burden to prove that the defendant did not appear in court. Fields, supra, 137 N.J. Super. at 81. The trial judge, in turn, is required to identify and weigh the factors that inform the decision regarding a remission request. See State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005); State v. de la Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003).

The Guidelines contained in Directive #13-04 and its several supplements reflect the accumulated case law, and are available to guide the trial judge's exercise of discretion. The Guidelines and the Remission Schedules are designed, however, to be the starting point in any determination to remit a forfeited bail along with the amount of any remission. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006).

Judge Coyle considered and applied each of the relevant factors for remission. He noted that after Burger failed to appear on July 8, 2010, he remained a fugitive for approximately eighteen days until his recapture by Pennsylvania authorities on or about July 26, 2010. Burger committed no new crimes while a fugitive, but was arrested by virtue of an outstanding Pennsylvania parole violation. The trial judge was not persuaded by First Indemnity's argument that a 95% percent remission as set forth in the Substantial Remission Schedule was appropriate. Judge Coyle concluded,

After a review of the factors discussed above, and mindful of the overarching policy concerns set forth in State v. de la Hoya, supra, and State v. Ramirez, supra, the court finds that Partial Remission is appropriate. The court finds that the Surety provided minimal supervision while Defendant was out on bail, but did engage in immediate substantial efforts, albeit unsuccessful, to recapture the Defendant. In reaching its final judgment, the court is guided by the Partial Remission Guidelines under Remission Schedule 2. Where a defendant is a fugitive for less than six months, the Partial Remission Guidelines recommend 75% of the bail be remitted. The court agrees, and finds this sum appropriate to the instant case.

First Indemnity's argument is grounded on an assertion that even though it did not have on file a working telephone number or address for Burger, and knew he had relocated out of the jurisdiction of the State, nevertheless its actions met the definition of "close ongoing supervision." Judge Coyle determined that these facts defined "minimal supervision," rather than the "close ongoing supervision," urged by First Indemnity.

Based on the record, there are substantial credible facts to support the trial court's findings that First Indemnity provided "minimal supervision," and the remission amount was fair, equitable, and consistent with the Guidelines. We also recognize that, ultimately, the surety failed to discharge its essential responsibility to assure defendant's presence at trial.

A

1 The Guidelines contain three schedules to assist judges in determining bail remission. Remission Schedule 1 encompasses situations where a defendant is still a fugitive. Remission Schedule 2 covers situations where a defendant is no longer a fugitive and had not committed a new crime while a fugitive. Remission Schedule 3 applies to situations where a defendant committed a new crime while a fugitive.