STATE OF NEW JERSEY v. GARY C. MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5168-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY C. MOORE,

Defendant,

and

ALLEGHENY CASUALTY COMPANY,

Defendant-Appellant.

_____________________________________

March 20, 2012

Submitted March 6, 2012 - Decided

Before Judges Nugent and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-06-0572.

Richard P. Blender, attorney for appellant.

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

PER CURIAM

Appellant Allegheny Casualty Company (Allegheny) appeals from a May 20, 2011 order declaring that it forfeit twenty-five percent of the $25,000 bail bond it posted for defendant Gary C. Moore (defendant). Allegheny argues: (1) it was entitled to remission of the entire amount of the bond; (2) alternatively, the amount of the forfeiture was excessive; (3) the court failed to consider all factors relevant to the remission of bail; and (4) the court incorrectly analyzed the factors it did consider. We reject those arguments and affirm.

Following defendant's arrest, he was released on a $25,000 bail bond posted by Allegheny on March 29, 2008. When defendant failed to appear for a hearing on September 24, 2010, the trial court ordered that the bail be forfeited. Defendant was re-arrested on January 18, 2011, and the charges against him were dismissed six months later.

On February 2, 2011, Allegheny filed a motion seeking to vacate the bail forfeiture, and supported the motion with the certification of its owner. Referring to a "Call Log and Check In Sheet" appended to the certification, the owner averred that defendant had "checked-in" with Allegheny via telephone ten times in 2008, seven times in 2009, and six times in 2010. As the State points out, those same records document that defendant had not checked in with Allegheny during the three months preceding September 24, 2010, the date he failed to appear for a hearing.

In his certification, Allegheny's owner also attested to the company's efforts to locate defendant after he failed to appear at the court hearing. Those efforts included contacting defendant's friends, attempting to locate a current address for defendant, and working with local law enforcement agencies.

Following oral argument on May 20, 2011, Judge Benjamin C. Telsey delivered an opinion from the bench in which he determined that twenty-five percent of the bail, or $6250, would be forfeited and the balance remitted to Allegheny. Judge Telsey filed a confirming order the same day. Allegheny appeals from that order.

A trial court "may, either before or after the entry of judgment, direct that an order of forfeiture [of bail] or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice upon such conditions as it imposes." R. 3:26-6(b). The "burden of proving that remission is justified" is on the party seeking to set the judgment aside, and the amount of bail to be remitted is a matter that rests within the sound discretion of the trial court. State v. Ventura, 196 N.J. 203, 213 (2008).

When determining the amount of bail to be remitted, the trial court must consider the paramount policy concerns of remission of bail forfeiture, "namely, the need to provide a reasonable incentive to the surety to attempt the recapture of the non-appearing defendant and to assure that the onus placed on commercial sureties is not so great as to risk the impairment of a defendant's realistic right to post pre-trial bail." State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003) (citing State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003)).

The court must also weigh, among other factors,

(a) whether the applicant is a commercial bondsman; (b) the bondsman's supervision, if any, of defendant during the time of his release; (c) the bondsman's efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the State because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; [and] (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.

[Ventura, supra, 196 N.J. at 213 (quoting State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)).]

"It is not enough for the court to recite the relevant factors; the court 'must also explain how it weighed them.'" State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007) (quoting de la Hoya, supra, 359 N.J. Super. at 200).

Finally, the court must properly apply the Remittitur Guidelines1 promulgated by the Administrative Director of the Courts, "which were developed to promote consistent application of the factors identified in our case law and to provide a starting point when determining . . . the amount to remit." Toscano, supra, 389 N.J. Super. at 371 (internal quotation marks and citations omitted).

Having considered Allegheny's arguments in light of the record and applicable law, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Telsey considered the paramount public policy considerations underlying the remission of bail, analyzed the factors enumerated in Hyers, explained how he weighted each factor, and properly applied the guidelines issued by the Administrative Director of the Courts. In short, Judge Telsey's exercise of discretion in determining that seventy-five percent of the bail would be remitted to Allegheny was entirely proper.

A

1 The guidelines, contained in Administrative Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004), supplemented on November 12, 2008, may be found at http://www.judiciary.state.nj.us/ directive/2008/dir_1304_Supplement_11_12_08.pdf.