STATE OF NEW JERSEY v. WAYNE REDD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6669-04T16669-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE REDD,

Defendant,

and

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant.

________________________________________

 

Argued November 28, 2006 - Decided December 29, 2006

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 03-10-3579.

Samuel M. Silver argued the cause for

appellant.

Donna M. Whiteside, Assistant County Counsel, argued the cause for respondent (Deborah Silverman-Katz, Camden County Counsel, attorney; Ms. Whiteside, on the brief).

PER CURIAM

Safety National Casualty Corporation (Safety) posted a bail bond in the amount of $10,000 for defendant Wayne Redd. Safety appeals from an order of August 2, 2005, which remits $2000 and forfeits $8000 of that bond. Because the trial court did not have the benefit of this court's decision in State v. Ruccatano, ___ N.J. Super. ___ (App. Div. 2006), and did not address the remittitur guidelines issued by the Administrative Director of the Courts or weigh all the relevant factors, we remand for reconsideration of the amount remitted. See Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004).

The facts are not in dispute. Safety, a commercial surety, did not provide any information about its efforts to supervise Redd after posting his $10,000 bond. On January 21, 2005, Redd failed to appear in court as required. His bail was revoked and a warrant was issued. On February 10, 2005, notice of bail forfeiture was issued. On March 10, 2005, Safety's recovery agent commenced efforts to recapture by checking computerized court records. The records showed that the warrant issued upon Redd's failure to appear had been executed on March 4, 2005.

Safety moved to vacate the forfeiture on April 8, 2005. The County opposed the application and submitted an affidavit of the Sheriff, in which the Sheriff describes the operation and cost of his department's "fugitive recovery" program. No other evidence was presented.

The judge's decision to remit twenty and forfeit eighty percent of the bond was based on the following findings and conclusions. "There was insufficient indication of

monitoring . . . ." "[T]he surety did not keep in close contact with the defendant and failed to engage in adequate supervision." "The surety's only attempt to recapture the defendant was to check a computer system to discover that the defendant was already in custody"; the surety made that effort "a month after receiving notice of the forfeiture." Redd was a fugitive for forty-three days and did not commit a new crime. Noting the expense of operating the fugitive recovery program and the intangible injury inherent in every failure to appear, the court concluded "the fairly short period of fugitive time [is a] significant factor for remission, and the inadequate supervision and recapture efforts weigh against the surety's favor." On that basis the court determined that "a twenty percent remission of the posted bail is fair to all parties involved."

Although "the decision to remit bail and the amount of remission are matters within the sound discretion of the trial court," the court must consider and weigh the factors and policies that are relevant to the equitable exercise of its discretion. State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003) (discussing the factors and citing State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003); State v. Mercado, 329 N.J. Super. 265, 269-71 (App. Div. 2000); State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)). The 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 when determining . . . the amount to remit.'" State v. Harris, 382 N.J. Super. 67, 71 (App. Div. 2005) (quoting State v. Ramirez, 378 N.J. Super. 355, 366 (2005)), certif. denied, 186 N.J. 365 (2006); see Directive #13-04, supra, Attachment F. The remittitur guidelines are set forth in full in Ramirez, supra, 378 N.J. Super. at 366-71, and discussed in Ramirez, Harris, State v. Hawkins, 382 N.J. Super. 458, 465-66 (App. Div. 2006), and Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 3-12). We do not repeat them here.

Proper application of the Director's remittitur guidelines requires an understanding of the structure. The four major sections are: "Policy Concerns To Consider in Determining Remission"; "Factors to Weigh in Determining Remission"; "Balancing of Factors"; and "Guidelines." Directive #13-04, supra, Attachment F; see Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 4-6). The sections are related. Based on the particular facts of the case, the remission amount indicated by the "Guidelines" is to be increased or decreased after balancing the factors that have been weighed in accordance with the policy concerns. See Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 9-10); Harris, supra, 382 N.J. Super. at 71.

The two policy concerns are "providing an incentive to take active and reasonable steps to recapture" and avoiding unreasonable measures that lead sureties to "be overcautious" in posting future bail bonds. Directive #13-04, supra, Attachment F; see Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 4) (quoting the provisions).

The "factors" identified are drawn from Clayton and the cases cited therein. 361 N.J. Super. at 392-93. They are as follows: whether efforts to supervise the defendant while on bail and recapture a defendant at large were reasonable under the circumstances (factors 1 and 3); whether the defendant committed a new crime while a fugitive, and the duration of the period that the defendant was at large (factors 4 and 7); the amount of the posted bail (factor 8); prejudice and expense incurred by the State, including the intangible element of injury to the public whenever a defendant deliberately fails to appear (factors 5 and 6); and whether the surety is a commercial bondsman (factor 2). Directive #13-04, supra, Attachment F.

The "balancing" requires a "primary focus" on "efforts" of the surety to secure the defendant's appearance and return. See ibid. (citing Mercado, supra, 329 N.J. Super. at 271).

The "Guidelines" section is comprised of three separate schedules. Ibid. The appropriate schedule is selected on the basis of the defendant's status as a fugitive and his or her criminal conduct while at large. Ibid. Because Redd was in custody at the time of the application for remission and did not commit a new crime while released on bail, the second schedule applies in this case. Ibid. That schedule includes three levels of remission based on the surety's effort, which are substantial, partial and minimal. Ibid.

Safety did not supervise Redd while he was on bail and does not qualify for substantial remission, which is reserved for a surety who provides "close ongoing supervision" while the defendant is on bail. Ibid. Partial remission is available for a surety who either provided "close supervision while the defendant was out on bail but did not engage in immediate substantial efforts to recapture" or "provided minimal or no supervision while the defendant was out on bail but did engage in immediate substantial efforts to recapture the defendant." Ibid. Safety's failure to provide any supervision while Redd was released on bail also precludes it from qualifying for a partial remission based on its supervisory efforts. Thus, the question is whether Safety "engage[d] in immediate substantial efforts to recapture" and qualifies for a partial remission on that basis. See ibid.

Ruccatano explains the phrase "immediate substantial efforts." ___ N.J. Super. at ___ (slip op. at 7-12) (construing the phrase in a case involving a defendant who committed a new crime while on bail). "[I]mmediacy of the surety's efforts should ordinarily be measured from the time the surety is informed of the warrant/forfeiture, without reference to when it would or should have learned of that fact if there had been proper supervision." Id. at ___ (slip op. at 8-9) (concluding that supervisory efforts are considered separately and should not be double counted in evaluating efforts to recapture). To be "substantial," the efforts must be reasonable under the circumstances of the case and "effective." Id. at ___ (slip op. at 10-12). The quality as well as the quantity of the effort is relevant. Id. at ___ (slip op. at 11). Effective work need not be time consuming or labor intensive to be substantial. Id. at ___ (slip op. at 11-12).

The "Guidelines" distinction between recapture efforts that qualify for partial remission and those that do not is stated in absolute terms. The question is whether the surety "did engage in" or "failed to engage in" "immediate substantial efforts." The standard "immediate substantial efforts" is exacting. The remittitur guidelines use the same standard to describe recapture effort that is adequate for a substantial remission. Directive #13-04, supra, Attachment F; see Mercado, supra, 329 N.J. Super. at 271 (discussing the essential obligations of a surety).

Safety delayed one month after receiving notice that Redd failed to appear. By the time Safety took action, Redd had been recaptured and was no longer deemed a fugitive. Cf. id. at ___ (slip op. at 3) (concluding that a surety's action was "effective" where it provided the information that permitted the County to obtain a detainer and secure the defendant's presence).

Where the surety's efforts do not meet the standard of "immediate" and "substantial," the trial court should consider whether it is appropriate to select a "starting point" between minimal and partial remission. See Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 9-10) (noting that the purpose of the remittitur guidelines is "to provide 'a starting point'" and stressing that "flexibility . . . is the governing principle"). To the degree that the surety's conduct approaches the exacting standard, "immediate" and "substantial," a starting point above minimal and closer to partial remission should be considered. That approach is consistent with the "policy concerns" that favor remission as an incentive for "active and reasonable steps to recapture" and disfavor remission that discourages posting of future bonds. Directive #13-04, supra, Attachment F.

In weighing the equities, the judge also must consider the "amount" of the bond (factor 8). See de la Hoya, supra, 359 N.J. Super. at 199 (discussing the relevance of the amount at issue). Although the various schedules provide "starting points" that refer to the percentage of the bond only, the dollar amount is a relevant factor that has implications for the policy concerns discussed above and for the public's interest in compensation for expense and harm (factors 5 and 6).

In this case, the trial court noted the brevity of the period during which Redd remained at large, and that factor (factor 4) may weigh in favor of an increase in the amount of remission. The schedule applicable here lists twenty percent as the "starting point" if the defendant was at large for six months or less. Forty-three days is at the low end of the period covered.

In order to permit the trial court to reconsider the amount remitted in light of the Director's guidelines and our decisions, the order setting the amount of remission and forfeiture is vacated and the matter remanded. We do not retain jurisdiction.

 

Within the three categories, the schedules recommend three ranges for percentage of remission that vary with the duration of the period that the defendant remained at large (factor 4). The three periods are: 1) six months or less; 2) between six and forty-eight months; and 3) more than forty-eight months. Under the schedule applicable when the defendant has not committed a crime, the ranges for the three periods are: substantial remission, 1) 95%, 2) 75% to 95%, and 3) 0% to 75%; partial remission, 1) 75%, 2) 20% to 75%, and 3) 0% to 20%; minimal remission, 1) 20%, 2) 5% to 20%, and 3) 0% to 5%. In order to avoid double counting, increases and decreases based on duration (factor 4) should be consistent with the specified ranges. See Ruccatano, supra, ___ N.J. Super. at ___ (slip op. at 7-8).

(continued)

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A-6669-04T1

December 29, 2006