STATE OF NEW JERSEY v. NATIONAL SAFETY CASUALTY CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6679-04T16679-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK DAMON,

Defendant,

and

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant.

_____________________________

 

Argued November 6, 2006 - Decided December 14, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, 04-08-03069.

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

Defendant, Safety National Casualty Corporation, appeals from a Judgment of Forfeiture entered against it in the amount of $18,000, which was eighty percent of the bail bond it had issued on behalf of Mark Damon. We affirm.

The record reveals that defendant issued a bond in the amount of $22,500 to secure compliance by Mark Damon with the terms of his bail. Damon failed to appear as required on September 10, 2004, and a warrant was issued for his arrest. A Notice of Bail Forfeiture was mailed to defendant on September 29, 2004. Consistent with R. 3:26-6(a), the notice advised that Damon had breached a condition of bail and that a Judgment of Forfeiture would be entered within seventy-five days unless defendant filed an appropriate objection.

On October 17, 2004, defendant's agent located Damon in the Camden County Correctional Facility where he had been incarcerated since October 8, 2004. Defendant's agent notified the Atlantic County Bail Unit of Damon's status.

Defendant filed a motion to vacate the forfeiture on October 25, 2004. Judge Thomas A. Brown, Jr. issued a written opinion in which he appropriately placed the burden upon defendant to show that "'it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest.'" State v. Korecky, 169 N.J. 364, 373 (2001) (quoting State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000)). The judge then considered each of the factors enumerated in State v. Hyers, 122 N.J. Super. 177, 180 (1973). Having reviewed the appropriate factors, the judge concluded "that a twenty percent remission of the posted bail is fair to all parties involved." On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT'S ERRED IN FAILING TO CONSIDER ALL OF THE EQUITABLE FACTORS SET FORTH IN THE CASE LAW PERTAINING VACATING A FORFEITURE BEFORE MAKING ITS DETERMINATION IN THIS MATTER.

POINT II

THE TRIAL COURT ERRED IN APPARENTLY CONSIDERING ONLY ONE OF THE EQUITABLE FACTORS REGARDING REMISSION AND VACATION TO THE EXCLUSION OF ALL OTHERS.

POINT III

THE TRIAL COURT ERRED IN FAILING TO ARTICULATE ITS CONSIDERATION OF THE REQUIRED FACTORS ON THE RECORD.

POINT IV

A SUBSTANTIAL FORFEITURE OF 80 PERCENT OR MORE IS NOT REQUIRED PURSUANT TO STATE V. HARMON.

We reject those arguments as lacking sufficient merit to justify discussion in a written opinion, see R. 2:11-3(e)(1)(A), (E), and we affirm the determination of Judge Brown substantially for the reasons given in his written opinion and effectuated by his July 6, 2005, order.

We add the following brief comments. Whether, and to what extent, a bail forfeiture should be remitted "are matters within the sound discretion of the trial court to be exercised in the public interest." State v. Clayton, 361 N.J. Super. 388, 392 (App. Div. 2003) (citing State v. Peace, 63 N.J. 127, 129 (1973) and State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003)). We have sustained similar forfeitures under facts not unlike those presented here. See, e.q., State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003). The judge's decision here was within his discretionary range.

 
There is nothing in this record to suggest any basis for defendant's concern that "a weighted formula is being applied in several cases out of the County of Camden, particularly in cases of non-physical apprehension of a defendant." Defendant's argument reduces to a claim that the judge placed too much emphasis on defendant's lack of pre-forfeiture supervision and insufficient weight on both the minimal time between defendant's failure to appear and his apprehension and the actual costs incurred as the result of non-appearance. We cannot say that the judge's evaluation of these factors was an abuse of discretion.

Affirmed.

(continued)

(continued)

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A-6679-04T1

December 14, 2006