STATE OF NEW JERSEY v. FREDRICK SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDRICK SMITH,

Defendant,

and

MR. G'S BAIL BONDS and

AMERICAN SURETY COMPANY,

Defendants-Appellants.

November 6, 2013

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-02-0134.

Richard R. Capone argued the cause for appellants.

Brendan J. Kavanagh argued the cause for respondent (Kavanagh & Kavanagh, LLC, attorneys; Mr. Kavanagh, on the brief).

PER CURIAM

American Surety Company (ASC), the corporate surety which posted a $200,000 bail bond to assure the appearance of defendant Frederick Smith, appeals from the order granting it less-than-full remission of the declared forfeiture. ASC asserts that under the circumstances, the ninety-five percent remission allowed by the trial court constituted a mistaken exercise of discretion. We disagree and affirm.

The facts are not in dispute. On December 10, 2010, ASC posted a $200,000 bond for Smith. After pleading to an accusation, Smith failed to appear for sentencing on May 20, 2011. The State delayed official notice to ASC of Smith s failure to appear and forfeiture of bail until August 16, 2011.1

Immigrations and Customs Enforcement (ICE) in El Paso, Texas arrested Smith on June 11, 2011. Two days later, ICE contacted the Cumberland County Sheriff's Office, which declined to extradite him.2 Later, on December 30, 2011, defendant was arrested at an immigration checkpoint in Arizona, and returned to New Jersey.

ASC moved to set aside the forfeiture, which the county opposed. On June 20, 2012, Judge James Swift issued an opinion ordering 95% ($190,000) remission of the $200,000 bail to ASC and 5% ($10,000) forfeiture. Judge Swift cited the State's failure to provide timely notice as "the predominate factor in the court's analysis," stating that this "substantially alters" the suretyship arrangement. The judge also faulted the State for not having Smith extradited from Texas; however, the court used remittitur guidelines to remit less than the full bond citing ASC s lack of supervision and inadequacy of recapture efforts.

"[T]he decision to remit and the amount of the remission lies within the equitable discretion of the court to be exercised in the public interest." State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003).

The exercise of that discretion must, however, be informed by the standards articulated by the courts in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and again in State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000), and must, moreover, be consistent with the policy concerns we identified in de la Hoya, 359 N.J. Super. at 199. Paramount among them is the necessity 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 pretrial bail.

[State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003).]

A bail forfeiture may be set aside by a court where "enforcement is not required in the interest of justice." R. 3:26-6(b). A court may order a remittitur, in whole or in part, subject to an array of principles found in decisional law and the judiciary's guidelines. See, e.g., State v. Ventura, 196 N.J. 203, 213-16 (2008); N.J. Administrative Office of the Courts, Supplement to Directive #13-04, Further Revised Remittitur Guidelines (Nov. 17, 2004) (Nov. 12, 2008), available at http://www.judiciary.state.nj.us [Guidelines]. Central to the grant of a discretionary remittitur is the proper consideration of all "factors and policies that are relevant to the equitable exercise of [the court's] discretion." State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007).

ASC challenges the forfeiture, asserting that the court erred in utilizing remission and the Guidelines, rather than exonerating the whole bond. ASC argues for exoneration of the bond as a matter of law claiming the delayed notification of forfeiture, and failure to have Smith returned after his capture in Texas, constituted material alterations of the surety arrangement. ASC relies upon State v Hawkins, 382 N.J. Super. 458, 468 (App. Div. 2006), where we reversed an order of remission and exonerated two bonds because the State never gave notice of forfeiture to the surety as to the first bond, thus requiring reversal as a matter of law. The State argued that due diligence should have alerted the bondsman upon the first failure to appear (because of the pending contempt charges). Ibid. We rejected this argument, because "[w]hat it should have known in late December does not negate the fact that it was entitled to notice and an opportunity to move for exoneration in November[.]" Ibid.

The State maintains that the trial court s decision to remit bail in part was within its discretion. While admitting that the delay in the forfeiture notice may have slowed Smith s recapture, the State notes that Smith was ultimately captured by local authorities, not through any actions taken by ASC. The State argues that weekly contact with Smith and/or the court would have alerted ASC of Smith's failure to appear.

We conclude that the trial court correctly rejected ASC's argument that the State's delayed notification of Smith's non-appearance at sentencing required exoneration of its bond. Hawkins is entirely distinguishable from the present matter. In that case, as a result of the failure to notify the surety of the defendant's non-appearance, the surety agreed to issue another bond, thus significantly increasing its financial exposure. Ibid. ASC can point to no such prejudice in the instant matter.

We also note the record contains no credible evidence to support the surety's claims of reasonable supervision before Smith's failure to appear for sentencing. In support of its motion, ASC submitted a certification of George Grooms, the owner of Mr. G's Bail Bonds, ASC's agent. Grooms certified "[o]ur office kept in phone contact with this defendant on a regular basis, as well as his co-signors. For the most part, he was amenable to supervision." The statements are couched in conclusory terms without specifics as to dates, or the names of bail bond agents or employees who contacted Smith or his co-signors.

Additionally, the certification referencing actions taken by "our office" failed to comply with the requirements of Rule 1:6-6, as it was not "made on personal knowledge" of the individual executing the certification. The burden of persuading the court that the surety maintained close, ongoing supervision of defendant while on bail rested on ASC. State v. Ventura, 196 N.J. 203, 213 (2008). Groom's certification failed to persuade the court that ASC maintained sufficient supervision over defendant while on bail to entitle it to full remission. ASC also failed to provide any convincing evidence of any significant efforts to recapture Smith.

The trial judge's findings fully weighed the applicable factors when considering a request to remit forfeited bail, including the important role of commercial sureties. Nevertheless, ASC failed to show a reasonable degree of supervision of Smith before his failure to appear at sentencing, nor did it demonstrate significant recapture efforts. Based on the facts in this record, we do not find that denying complete exoneration of the bond reflects an abuse of discretion warranting reversal. Therefore, we find no reason to interfere with the trial judge's decision.

1 The case had been transferred from Salem County to Cumberland County, a likely factor in the three-month delay in generating the forfeiture notice.

2 The warrant was limited to 1000 miles and the sheriff's department apparently was unable to obtain timely approval to extradite Smith from Texas before his release.