STATE OF NEW JERSEY v. JAMES HILL et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1761-06T1
1761-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES HILL and HARCO NATIONAL

INSURANCE CO.,

Defendants-Appellants.

______________________________________

 

Submitted August 21, 2007 - Decided August 28, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-04-593-I.

Richard P. Blender, attorney for appellants.

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

PER CURIAM

Defendant, Harco National Insurance Company (Harco), is the surety in Middlesex County for criminal defendant, James Hill, who was released from custody on a $50,000 surety bond posted by Harco on April 13, 2004. On May 14, 2004, Hill failed to appear at a scheduled court proceeding. A bench warrant was issued for Hill's arrest and bail was forfeited.

The forfeiture was then set aside, after Hill was arrested in Essex County and transferred to Middlesex County. Bail was reinstated with the consent of Harco. Hill was again released on bail on September 10, 2004.

Thereafter, Hill failed to appear in court on August 29, 2005. As a result, a bench warrant for Hill's arrest was issued and bail was again ordered forfeited. Harco was notified of the forfeiture by "Notice of Bail Forfeiture for Surety" dated August 30, 2005. Thereafter, judgment was entered for the $50,000 posted in bail.

On September 14, 2006, Harco filed a motion for an order vacating the bail forfeiture and discharging the bail posted by Harco. The certification of Harco in support of its motion to vacate was an attorney's certification. There was no first party certification by a person with actual knowledge of Harco's efforts to locate and keep in touch with Hill filed by Harco in support of its motion. After entertaining oral argument, on September 15, 2006, the court denied Harco's motion.

The court's oral opinion was memorialized in an order dated October 18, 2006. In addition to denying Harco's motion to vacate the bail forfeiture and discharge the surety bond, the order required Harco to pay the sum of $50,000, the amount of the underlying judgment by October 16, 2006, which amount was ordered to be distributed proportionally between the State and Middlesex County. Further, the judgment in the amount of $50,000 was to be vacated and the bond discharged of record upon the State's receipt of the full $50,000. If Harco failed to satisfy the judgment and until satisfaction was made, Harco was ordered removed from the bail registry and precluded from administering its bail bond business in the State.

Harco appeals the October 18, 2006, order denying its motion to vacate forfeiture and ordering discharge of the bond upon payment. On January 22, 2007, the trial court granted Harco's motion to post a supersedeas bond pending appeal. A superseadeas bond was posted January 30, 2007. We affirm the trial court's order.

Hill failed to appear in court on August 29, 2005 and a bench warrant was issued for his arrest. On October 18, 2005, defendant was discovered by the Middlesex County Prosecutor's Office to be imprisoned in the Erie County Prison in Buffalo, New York, where he was being detained on local charges. Based on this information, the Middlesex County Prosecutor's Office Fugitive Task Force (MCPO-FTF) contacted the Erie County Prison to confirm that Hill was still in its custody and forwarded the Middlesex County bench warrant as a detainer. At the time of Harco's motion, Hill was awaiting extradition from the Erie County Prison in Buffalo, New York to Middlesex County.

Harco contends the bail forfeiture should be set aside because the defendant has been incarcerated in another jurisdiction awaiting extradition to New Jersey. The law governing forfeiture and remission of bail is set forth in Rule 3:26-6. In State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003), we summarized the applicable provisions of the rule:

[Paragraph (a)] provides that upon the breach of a condition of bail, the court on its own motion shall declare a forfeiture, and absent an objection by the surety seeking to set the forfeiture aside, a judgment of forfeiture shall be entered within 75 days after the declaration of forfeiture. Paragraph (b) permits the court to "direct that a forfeiture be set aside if its enforcement is not required in the interest of justice upon such conditions as it imposes." And paragraph (c) requires the judgment of forfeiture to be entered following the prescribed 75 days if an objection has not been made, but further authorizes the court, after judgment is entered, to remit the bail to the surety in whole or in part "in the interest of justice."

The court in denying Harco's motion stated:

In this application which is a [$50,000] bond which by reason of a bench warrant [as the result of] the defendant's non-appearance in court on August 29, 2005 [bail] was forfeited[,] I am satisfied that the proofs regarding reinstatement certainly absolve this matter of the harsh consequences set forth in State v. Clayton, [ 83 N.J.L. 673 (E. & A. 1912)] and, therefore, the reinstatement of the bail . . . did take place and it was thereafter the actions of the defendant in failing to appear on August 29, 2005 that resulted in the forfeiture taking place.

On October 18, 2005, the Middlesex County Prosecutor's Office Fugitive Task Force located the defendant in Erie County prison in New York on local charges, where he was being held on local charges and thereafter a formal detainer was lodged and the defendant is currently awaiting extradition. He has not yet been produced. And as this Court has held in the past based upon State v. Fields, [ 137 N.J. Super. 79 (App. Div. 1975),] State v. Erickson, [ 154 N.J. Super. 201 (App. Div. 1977),] the mere fact that a defendant is incarcerated in another state it is not sufficient to relieve a forfeiture in whole or in part. He is tantamount to being in fugitive status and the primary task of the Surety or essential obligation of the Surety to date remains unfulfilled.

I am satisfied further that the Surety has not met its burden to establish that it would be inequitable to insist upon forfeiture and that it is not required in the interests of justice and citing State v. Hyers, [ 122 N.J. Super 177 (App. Div. 1973),] and State v. Peace, [ 63 N.J. 127 (1973),] and, therefore, the application to vacate the bail forfeiture is denied.

In order to determine whether remission in whole or in part "in the interest of justice" as provided by Rule 3:26-6(c) applies, we must determine whether out-of-state incarceration is insufficient to relieve a surety from a forfeiture, because the surety has failed in its primary obligation to produce the defendant. For the reasons hereinafter expressed, we conclude that out-of-state incarceration, where the defendant has not been returned to this State, is insufficient to relieve the surety from a forfeiture.

In Fields, supra, 137 N.J. Super. at 80, we stated it is the surety company's and the defendant's burden to prove that "it was inequitable to insist on forfeiture and that a forfeiture was not required in the interest of justice." We determined "[t]he mere fact that the defendant is imprisoned in Florida is not sufficient to relieve the forfeiture in whole or in part, especially if the defendant left New Jersey without permission or is jailed for a new crime." Ibid.

In Erickson, supra, 154 N.J. Super. at 204, we reiterated that "[t]he mere fact that a defendant is imprisoned in another state is not sufficient to relieve a forfeiture in whole or in part." We stated that it is the same as if the defendant had left the State and refused on his own volition to return. Ibid. We pointed out that "the duty of one state to surrender the principal of a bail to another state is not absolute and unqualified and, therefore, out-of-state incarceration of a defendant does not protect a surety." Ibid. We distinguished an out-of-state incarceration from the situation where a defendant is incarcerated in another county of the same state at the time of his scheduled appearance, because the appearance of the defendant to answer to the criminal charge is rendered impossible by the law of the state where the obligation was assumed. Ibid. We stated "[t]he very same state government which had held defendant amenable to a charge in one county, has by law taken jurisdiction or custody of him in another county." Id. at 204-05.

State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003), relied upon by Harco, is not to the contrary. In Harmon, we decided sixteen bail forfeiture appeals by exercising our original jurisdiction pursuant to Rule 2:10-5. Id. at 254. We began by affirming that the decisions to remit bail and the amount of remission, as informed by the standards articulated in Hyers, supra, 122 N.J. Super. at 180, and consistent with the policy concerns identified in de la Hoya, supra, 359 N.J. Super. at 199, are matters within the sound discretion of the trial court to be exercised in the public interest. Harmon, supra, 361 N.J. Super. at 254. The disposition of three of the forfeiture appeals involved defendants who had been already extradited to New Jersey from other jurisdictions and were not simply awaiting extradition. Id. at 258-62. We noted as to one of these defendants that while he was incarcerated out of state and had still not been returned to New Jersey "he was still regarded as a fugitive during this time." Id. at 262. Although it is not completely clear, a fourth defendant may have still been in Pennsylvania in an in-patient drug abuse rehabilitation facility without having been first extradited to New Jersey. Id. at 257-58.

In this case, it is evident that Harco provided minimal or no supervision while Hill was out on bail, as evidenced by his failure to appear in court, thus necessitating the issuance of a bench warrant. Likewise, Harco failed to submit a first party certification or other evidence showing that it engaged in any efforts to recapture Hill, allowing him to flee outside New Jersey to New York, now requiring the assistance of out-of-state authorities to ensure his return. Additionally, defendant's incarceration in the Erie County Prison in Buffalo, New York is a result of Hill committing new offenses independent from the New Jersey offenses, thus causing the delay in extraditing him to New Jersey.

The surety bears the burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody. State v. Ramirez, 378 N.J. Super. 355, 365 (App. Div. 2005). We are satisfied that the motion court relying on Erickson, supra, and Fields, supra, properly exercised its discretion when it denied Harco's motion. The court correctly determined that the "mere fact that a defendant is incarcerated in another state is not sufficient to relieve a forfeiture in whole or in part. He is tantamount to being in fugitive status and the primary task of the surety or essential obligation of the surety to date remains unfulfilled." Moreover, the court, relying on Hyers, supra, and Peace, supra, was further "satisfied that the surety has not met its burden to establish that it would be inequitable to insist upon the forfeiture and that it is not required in the interest of justice."

We note this court's recent opinion in State v. Wilson, ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 10-12) holding that an order of forfeiture should be vacated when the defendant has been located in an out-of-state jail and a detainer has been lodged, but the defendant has not been returned to this State. However, we choose not to vacate the order of forfeiture in this case.

We find no abuse of discretion in the court's denial of relief to Harco, on the basis that Harco's essential obligation to properly monitor and supervise Hill remains unsatisfied. Hill was allowed to voluntarily abscond from New Jersey, and commit a new offense in New York, thus evading his responsibilities to the court in New Jersey. The MCPO-FTF has the continued obligation to monitor Hill and the status of his New York State offense while incarcerated, in order to return him to New Jersey. It is the surety which determines the means to monitor and supervise the defendant in order to assure his presence in court and assumes the responsibility that the defendant may potentially be a flight risk. We are satisfied that Rule 3:26-6(c) affords Harco adequate redress. Upon Hill's extradition to New Jersey and a fair assessment of the costs and expenses associated with returning him to this State, Harco can make a new application seeking remission in accordance with the standards articulated in Harmon and Wilson. See also State v. Toscano, 389 N.J. Super. 366 (App. Div. 2007).

Accordingly, the October 18, 2006, order denying Harco's motion is affirmed. The supersedeas bond may be discharged upon the $50,000 judgment being satisfied.

 
Affirmed.

This appeal is from one of the ten bail forfeiture motions considered by the motion judge which involved a defendant awaiting out-of-state extradition, all of which were denied by the motion judge. According to Middlesex County counsel's brief, four of the other nine motions are on appeal to this court under separate docket numbers.

In cases where remission is found to apply, the court in determining the amount of remission must consider the factors enumerated in Hyers, supra, 122 N.J. Super. at 180 and the public policy concerns expressed in de la Hoya, supra, 359 N.J. Super. at 198; see also Peace, supra, 63 N.J. at 128.

On the return date of Harco's motion before the trial court and according to Middlesex County counsel in her brief, as of April 10, 2006, the date of counsel's brief, Hill had not been returned to New Jersey.

(continued)

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A-1761-06T1

August 28, 2007