STATE OF NEW JERSEY v. RICHARD PULYER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0794-06T10794-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD PULYER,

Defendant,

and

SAFETY NATIONAL CASUALTY CORP.,

(SURETY),

Defendant-Appellant.

________________________________

 
Telephonically argued October 30, 2007 - Decided

Before Judges Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-01-00063.

Samuel M. Silver, attorney for appellant.

Thomas F. Kelso, Middlesex County Counsel, attorney for respondent (Niki Athanasopoulos, Deputy County Counsel, on the brief).

PER CURIAM

Safety National Casualty Corp. (the Surety) appeals from the September 19, 2006, order of the Law Division denying its motion to vacate the order of bail forfeiture of January 18, 2005, and entering judgment against the Surety in the amount of $28,000. We reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

On February 26, 2004, the Surety posted a bail bond in the amount of $35,000 to secure the pre-trial release of defendant Richard M. Pulyer. On January 18, 2005, because defendant failed to appear for a scheduled court proceeding, defendant's bail was forfeited and a bench warrant issued for his arrest. On January 19, 2005, a notice of bail forfeiture was sent to the Surety. R. 3:26-6(a). On March 31, 2005, the Middlesex County Prosecutor's Office - Fugitive Task Force (MCPO-FTF) ascertained that defendant was in the custody of the Federal Government, having been arrested by the Newark Office of the United States Marshals Service (Marshals Service). Based on that information, the MCPO-FTF immediately forwarded a detainer to the Marshals Service. On April 7, 2005, default judgment was entered against the Surety, forfeiting the entire amount of the bail bond. R. 2:26-6(c).

On April 15, 2005, the Surety's agent, Blaze Bail Bonds, confirmed that defendant was incarcerated in a prison in Harrisburg, Pennsylvania. On May 3, 2005, the Surety filed a motion seeking to: stay the execution of the judgment; vacate the forfeiture and/or judgment; exonerate the Surety; and discharge the bail bond. The motion was supported only by a certification of counsel, attaching Blaze Bail Bond's telefaxed verification of defendant's incarceration in the Harrisburg prison. Because defendant had not yet been returned to Middlesex County, the motion was continued, pending his return to the County.

On June 7, 2005, the MCPO-FTF was notified that defendant was transferred to the Federal Detention Center at Fort Dix. Based on this information, the MCPO-FTF forwarded a formal detainer to the Marshals Service, requesting that defendant be transported from Fort Dix to Middlesex County in order to answer the outstanding indictment pending against him. On March 14, 2006, after defendant had completed court proceedings in Monmouth County, defendant signed an Interstate Agreement on Detainer (IAD), requesting that he be transported to Middlesex County. On April 5, 2006, defendant was transported to Middlesex County.

On May 19, 2006, defendant pled guilty to third-degree theft by deception and was sentenced to five years of imprisonment, to run concurrent with a federal sentence he was then serving. In the interim, aware that the Surety's motion would be re-listed, the State filed opposition that included a certification from Sergeant David Jackson of the MCPO-FTF setting forth the efforts expended by the Prosecutor's Office in locating defendant and arranging for his return to Middlesex County.

On September 7, 2006, the Surety's motion was denied. In denying the motion, the trial judge determined: 1) defendant had been absent from the jurisdiction for sixteen months; 2) defendant had committed a new criminal offense while a fugitive; 3) the Surety failed to demonstrate the degree or extent of supervision it had exercised over defendant while he was released on bail; and 4) the efforts expended by the State to secure defendant's return to Middlesex County.

The question, of course, becomes, where is the monitoring supervision? In this case the [S]urety having failed to sustain its burden to demonstrate that it would be inequitable to insist upon the forfeiture of the [bail] and that forfeiture is not required in the public interest[.] [In] applying Hyers, the applicant is a commercial bondsman, there was inadequate or near non[-]existent supervision during . . . the year of release, no efforts to insure his return, sixteen months from the point of absconding to the defendant's return[.] [In addition,] the State has demonstrated by way of the certification . . . the outlay of efforts to secure the defendant's return[.] [Also] . . . the intangible element of injury to the public interest in almost any case where defendant deliberately fails to appear in a criminal case, including the commission of another crime as took place here is allowed to be considered under State [v.] Pierce and State [v.] Harmon.

I don't find that an eighty percent amount is unreasonable or excessive taking into consideration all of the aforementioned and, therefore, the judgment will be modified to reflect that the [S]urety shall pay eighty percent of the $35,000 which is [$28,000].

A confirming order was entered on September 19, 2006.

On appeal, the Surety argues:

POINT I.

THE TRIAL COURT ERRED WHEN IT TREATED A DEFENDANT INCARCERATED IN ANOTHER STATE, AND FOR WHOM A DETAINER WAS LODGED, AS THOUGH THAT DEFENDANT WAS A FUGITIVE ON THE RUN WHOSE WHEREABOUTS WERE UNKNOWN.

POINT II.

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

The trial judge found as a determining factor that defendant had committed another crime while a fugitive. During argument on appeal, the State conceded, that although the record indicates that defendant had been arrested and imprisoned subsequent to his failure to appear, the record does not indicate whether his arrest and imprisonment was for a new criminal offense or for an offense that had occurred prior to defendant becoming a fugitive. Whether defendant committed a new crime while a fugitive is a factor that is given great weight under the Remittitur Guidelines.

The Guidelines provide the court with a starting point when determining whether to remit bail and, if so, the amount of bail to remit. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); Directive #13-04, supra, attachment F. "Based on the particular facts of the case, the remission amount indicated by the schedules included in the 'Guidelines' should be increased or decreased after balancing the factors that had been weighed in accordance with the policy concerns." Ibid. The Guidelines are set forth in full in State v. Ramirez, 378 N.J. Super. 355, 366-69 (App. Div. 2005).

The fact of whether the defendant did or did not commit a crime while a fugitive greatly influences the recommended starting point for ruling on a motion for a remittitur. For example, where a defendant is not a fugitive when the remission motion is made, and the court finds a partial remission is justified, if the defendant was a fugitive for six months or less, the Guidelines recommend a 75% remittitur provided defendant did not commit a new crime while a fugitive; whereas if the defendant did commit a new crime while a fugitive, the Guidelines only recommend a 40% remittitur. Because we conclude that the trial judge mistakenly determined that defendant had committed a new crime while a fugitive because the record does not support that determination, we reverse and remand the matter to the trial court to reconsider the appropriate amount of bail to be remitted under the Guidelines.

In addition, the trial judge also noted that defendant had been absent from the jurisdiction for sixteen months after he failed to appear on January 18, 2005. We cannot determine from the record whether the judge considered defendant a fugitive during his entire absence, notwithstanding that he was in the custody of the Marshals Service since March 31, 2005. Accordingly, on remand, the trial judge should reconsider defendant's absence from the jurisdiction in light of our recent opinion in State v. Wilson, 395 N.J. Super. 221 (App. Div. 2007).

Reverse and remand to the trial court for further proceedings consistent with this opinion.

See Administrative Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (November 17, 2004) (Guidelines). The Guidelines were amended by a supplement to Administrative Directive #13-04 on October 9, 2007.

The amount remitted is the balance remaining after the State is reimbursed its costs for the efforts expended in recapturing the defendant.

(continued)

(continued)

8

A-0794-06T1

November 13, 2007