STATE OF NEW JERSEY v. OMAR SMITH

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4004-14T1

A-4005-14T1

A-4006-14T10

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR SMITH,

Defendant,

and

ALL OUT BAIL BONDS, Agent for

FIRST INDEMNITY OF AMERICA, INSURANCE

COMPANY, as Surety,

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR SMITH,

Defendant,

and

ALL OUT BAIL BONDS, Agent for

SENECA INSURANCE COMPANY, as Surety,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR SMITH,

Defendant,

and

ALL OUT BAIL BONDS, Agent for

FINANCIAL CASUALTY & SURETY, INC.,

as Surety,

Defendant-Appellant.

__________________________________

December 21, 2016

Argued October 5, 2016 Decided

Before Judges Koblitz and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 13-09-0889.

Samuel M. Silver argued the cause for appellant.

Michael H. Glovin, Deputy County Counsel, argued the cause for respondent (William J. Pascrell, III, Passaic County Counsel, attorney; Mr. Glovin, on the briefs).

PER CURIAM

In these three matters, which we consolidate for purposes of a single opinion, All Out Bail Bonds (the surety), agent of First Indemnity America Insurance Company, Seneca Insurance Company, and Financial Casualty & Surety Inc., appeals from the Law Division's April 20, 2015 orders requiring it to pay a total of $24,750 as a condition of vacating earlier bail forfeitures involving Omar Smith. For the reasons that follow, we affirm.

I.

We glean the following relevant facts and procedural history from the record on appeal. On December 7, 2012, the surety posted bail for Smith in the amount of $75,000. On August 17, 2013, the surety posted a second bail for Smith, also in the amount of $75,000. On February 28, 2014, the surety posted a third bail for Smith, this time in the amount of $35,000.

On April 7, 2014, Smith appeared in court and was advised that he may be remanded into custody. After a court recess, he left the courtroom and absconded to whereabouts unknown. A bench warrant was issued for his arrest and his two $75,000 bails were forfeited.

On September 2, 2014, Smith, while still a fugitive despite the surety's efforts to bring him into custody, failed to appear for the matter in which the surety had posted the $35,000 bail. Consequently, a bench warrant was issued for his arrest and that bail was also forfeited.

In early December 2014, the surety learned from the licensed recovery agent it hired that Smith was located in Georgia living under an alias. On or about December 9, Smith was apprehended and returned to New Jersey. Thereafter, the surety filed a motion to set aside forfeiture of the bail bonds. It was undisputed that the surety expended $20,000 in locating and returning Smith to New Jersey.

On March 31, 2015, the motion judge issued a written decision that, after subtracting the surety's $20,000 expenses from the three bails which totaled $185,000, the surety was entitled to be relieved of the obligation to remit eighty-five percent of the remainder of $165,000, or $140,250. Thus, the surety was required to pay $24,750 to the State.

II.

The issue of remission of a forfeiture is equitable in nature. Hyers, supra, 122 N.J. Super. at 180. Pursuant to Rule 3:26-6(b), the court may set aside a forfeiture of bail "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) (emphasis added); see State v. Peace, 63 N.J. 127, 129 (1973). Thus, we review the motion judge's decision for abuse of discretion. State v. Ventura, 196 N.J. 203, 213 (2008).

The decision to remit bail "is fact-driven and involves the consideration of a multitude of factors." Ventura, supra, 196 N.J. at 218. "[W]hile the court rule does not prescribe standards informing that exercise of discretion, the courts have addressed the factors which should be considered." State v. de la Hoya, 359 N.J. Super. 194, 198. In addition to considering these 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). Furthermore, in making a decision, "[t]he court also must consider the remittitur guidelines, which were developed to promote consistent application of the factors identified in our case law and 'to provide "a starting point whendetermining . . . the amount to remit."'" Id.at 371 (quoting State v. Harris, 382 N.J. Super.67, 71 (App. Div. 2005), certif. denied, 186 N.J.365 (2006)).

Before us, the surety contends that the motion judge abused his discretion. Specifically, the surety argues that forfeiture of five percent of the bond (remittance of ninety-five percent) is more consistent with the bail remittitur guidelines given that Smith was a fugitive for eight months, which is very close to the minimum amount of time provided by the guidelines, the surety's high level of surveillance and prompt efforts made to recapture Smith. The surety also maintains that the judge failed to explain how he weighted relevant factors before imposing a "substantial penalty" of eighty-five percent remittance.

In applying the Hyers-Peace analysis, the judge found that the surety provided ongoing supervision of Smith, who did not commit a new offense while a fugitive for eight months, and made "immediate, substantial efforts to recapture [Smith] and did in fact return him to New Jersey." Although noting that the State offered no proof that Smith's absence prejudiced the prosecution of his charges, the judge recognized that there was an intangible element detrimental to the public interest when a criminal defendant fails to appear in court for required proceedings. Citing the public policy concerns set forth in State v. de la Hoya, 359 N.J. Super. 194, 196, 197-98 (App. Div. 2003), the judge reasoned that, while mindful of the AOC Bail Remittitur guidelines,1 he must be flexible to make sure that the forfeiture is reasonably related to the facts of the case so that there would not be a disincentive to corporate sureties to post bail for defendants. On April 20, the judge issued orders memorializing his decision. This appeal followed.

Upon our review of the record, we affirm substantially for the reasons expressed by the motion judge in his written decision. The remission of eighty-five percent of the bail to the surety is within the range of seventy-five to ninety percent provided for under the circumstances. Furthermore, the judge adequately explained his reasoning in applying the guidelines and relevant case law. We find no basis to conclude that there was an abuse in discretion.

In reaching our decision, we do not address the surety's contention, raised for the first time at argument before us, that the motion judge should not have deducted its $20,000 expenses from the total amount of the bail bonds. We "'decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). In addition, a mere mention of an issue at oral argument does not require an appellate court to address it. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012). Further, in a footnote in our decision Noye v. Hoffmann-La Roche Inc., we concluded that an issue not argued in a brief below is deemed abandoned. 238 N.J. Super 430, 432 n.2 (App. Div.), certif. denied, 122 N.J. 146 (1990), certif. denied, 122 N.J. 147 (1990) (citing In re Bloomingdale Conval. Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989) (holding that we would not decide an issue that the attorney had not briefed and had raised for the first time during his oral argument). Nevertheless, we perceive no abuse of the judge's application of the surety's expenses.

Affirmed.

1 See Supplement to Directive # 13-04, Bail - Further Revised Remittitur Guidelines (Nov. 12, 2008),

http://judiciary.state.nj.us/directive/2008/dir_13-03 Supplement_11_12_08.pdf.