STATE OF NEW JERSEY v. SAFETY NATIONAL CASUALTY CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1275-04T11275-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent

and Cross-Appellant,

v.

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant

and Cross-Respondent,

and

CARLOS MOLINA,

Defendant.

_____________________________________________________________

 

Argued January 10, 2006 - Decided January 25, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment

No. 04-06-1325.

Samuel M. Silver argued the cause for

appellant (Mr. Silver and Ted Del Guercio, III,

on the brief).

Christopher J. Kane argued the cause for

respondent (David S. Lafferty, attorneys;

Mr. Kane, of counsel and on the brief).

PER CURIAM

Appellant Safety National Casualty Corporation ("Safety National") appeals from a Law Division order discharging a previously forfeited $100,000 bond on condition that the Safety National pay $30,000 to be distributed proportionately between the State and the County of Bergen. The State and County cross-appeal, claiming that the Law Division should have forfeited at least eighty or ninety percent of the bond. We reverse and remand for further proceedings.

Most of the facts are not in dispute. Molina was arrested in Bergen County on April 10, 2004, and on April 16, 2004, Safety National posted the $100,000 bond, but Molina was not released because of a detainer from Monmouth County. After an indictment was returned, the arraignment date was set for July 19, 2004, at which time Molina was still in jail in Monmouth County. Since Molina did not appear for the arraignment, the judge, who apparently was not informed that Molina had never been released on the bond, issued a bench warrant and ordered the bail revoked.

On July 26, 2004, Molina was brought before the Bergen County judge. The State moved for reinstatement of Molina's bail, apparently because it agreed that Molina had never been released on the bond. The judge granted the motion, reinstating the bail and setting August 9, 2004, as the date for Molina's arraignment. All this was done without notice to Safety National.

On August 9, 2004, Molina did not appear for arraignment, and the judge issued a bench warrant and ordered the bond forfeited. On August 13, 2004, the court mailed a notice of the forfeiture to Safety National. On August 17, 2004, which was perhaps a couple of days after Safety National received the forfeiture notice, Molina was arrested in Union County.

Safety National filed a motion for exoneration, which came before the court on September 28, 2004. The State argued for a forfeiture of between $60,000 and $90,000, and Safety National argued for complete exoneration or a forfeiture of less than $5,000. The judge ordered a forfeiture of $30,000 based on the following reasoning:

One of the important aspects of this application is that there has not been a substantial time lapse. Certainly there was a time lapse. Certainly the bonding company has a responsibility here. They weren't totally deficient in their efforts to determine what's happening with the defendant. He was out on bail, committing another crime.

Well, the bonding company, I don't know if they're ever held responsible for somebody committing crimes, the mere fact that they posted the bail, but they do have some responsibility.

Because of the period of time involved and the fact though during that short time defendant was out he committed another offense[,] there should be a bail forfeiture. The amount will be thirty thousand dollars. That's determined by the fact in the period of time involved here, about a week, week and a half, the fact defendant was out committing another crime. That's how the Court determined the amount, from weighing the various events. I'm going to order thirty thousand dollars.

Before making the decision of whether to remit or not and the amount of remission, the trial judge was obliged to consider

the corporate status of the surety, the surety's supervision of defendant while released on bail, the surety's efforts to ensure the fugitive's return, the length of time between the fugitive's non-appearance and return, both the prejudice to the State and the expenses incurred by it resulting from the fugitive's non-appearance, recapture, and enforcement of the forfeiture, and whether reimbursement of the State's expenses will adequately satisfy the interests of justice.

[State v. de la Hoya, 359 N.J. Super. 194,

198 (App. Div. 2003) (citing State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)).]

In addition, the decision should be informed by "other overarching concerns." Id. at 199. "Paramount among them is the necessity of providing an incentive to the surety to take active and reasonable steps to recapture a fugitive defendant." Ibid. Moreover, the court must keep in mind that "if remission were unreasonably held, corporate sureties might be overcautious in their willingness to post bail, resulting in an impairment of an accused's constitutional right to pretrial bail." Ibid. In "determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its quantum. Illustratively, fifty percent of a $100,000 bond is a very different matter from fifty percent of a $5,000 bond." Ibid.

When balancing the various factors,

the court's primary focus, especially when the defendant has remained a fugitive for a significant period of time, should be upon the surety's efforts to secure the defendant's return, rather than upon the expenses incurred by the State as a result of the defendant's failure to appear or the prejudice to the State's case caused by defendant's absence.

[Ibid. (quoting State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000)).]

Finally, "[i]n considering remission applications, the trial court must not only take into account the relevant factors but must also explain how it weighed them." Id. at 200.

Both parties concede that the Law Division judge's decision failed to provide the kind of analysis required by the above cited cases, and we agree. In addition, Safety National first learned about the July 26, 2004, reinstatement during the September 28, 2004, hearing. This aspect of the case should have been analyzed in accordance with the principles we enunciated in State v. Weissenburger, 189 N.J. Super. 172, 176 (App. Div. 1983), which held that the unilateral alteration of the terms of the undertaking by the principal and the creditor without the consent of the surety discharged the surety if the modification materially increased the risk of the undertaking. The State conceded during oral argument that Safety National is entitled to an opportunity to demonstrate a right to relief under Weissenburger, and we agree.

We recognize that the decision to remit and the amount of the remission are matters that generally rest in the sound discretion of the trial court. State v. Peace, 63 N.J. 127, 129 (1973). But the exercise of that discretion must be based on an application of the relevant principles of law. Since that did not occur here, we are obliged to reverse and remand for further proceedings consistent with this opinion. The trial court should first consider whether the July 26, 2004, decision reinstating bail without notice to the surety justifies complete exoneration. If it does not, the trial court should carefully consider all of the above noted factors, keeping in mind that defendant was not released until July 26, 2004, which was without notice to Safety National, that he was arrested on August 17, 2004, and that Safety National was not sent a notice of defendant's failure to appear on August 9 until August 13, 2004. Given that context, it would appear difficult to penalize Safety National at all, let alone to the extent of thirty percent of the bond.

 
Reversed and remanded.

(continued)

(continued)

7

A-1275-04T1

January 25, 2006