STATE OF NEW JERSEY v. ANGEL CUADRADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3780-05T13780-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL CUADRADO,

Defendant,

and

SAFETY NATIONAL CASUALTY CORP.,

(SURETY),

Defendant-Appellant.

________________________________________________________________

 
Telephonically argued February 23, 2007 - Decided March 15, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 05-05-00390-I.

Samuel M. Silver argued the cause for appellant.

Brendan J. Kavanagh, Assistant County Counsel, Cumberland County, argued the cause for respondent (Gary D. Wodlinger, Cumberland County Counsel, attorney; Mr. Kavanagh, on the brief).

PER CURIAM

Safety National Casualty Corp. (Safety) posted a $2,500 bail bond for defendant, Angel Cuadrado. After Cuadrado failed to appear in court, the bail was forfeited. Upon Safety's motion, an order was entered remitting twenty percent ($500) and forfeiting the remaining eighty percent ($2,000) of the forfeited bail. Safety appeals, arguing that the judge did not correctly apply the remittitur guidelines issued by the Administrative Director of the Courts and weigh the applicable factors. We agree and reverse.

Safety posted the bond on January 15, 2005. On July 18, 2005, Cuadrado failed to appear in Superior Court, Cumberland County, as required. The judge immediately issued a bench warrant for Cuadrado and an order forfeiting the bail. On July 26, 2005, the court sent a notice of the bail forfeiture to Safety. See R. 3:26-6(a).

Upon receiving the notice, Safety immediately assigned the matter to a recovery agent who, on August 2, 2005, confirmed that the bench warrant had been executed and Cuadrado was in custody in the Cumberland County Jail. Cuadrado had not been charged with committing a new offense. Although the record is not completely clear as to the exact date the bench warrant was executed, the recovery agent's affidavit contains as an attachment a printout from the court's Promis/Gavel data base that seems to indicate the warrant was executed on July 26, 2005. We cannot be sure, but there is no dispute that Cuadrado was in custody on or before August 2, 2005. Our analysis and conclusion is not affected by the uncertainty over these few days.

Safety moved to vacate the forfeiture. The State opposed the motion. The judge made these findings:

I find that there is no proof of any supervision prior to absconding. I find no immediate substantial recapture efforts. There was no new offense. . . . The defendant is presently in custody. The length of the fugitive's status was six months or less. He was apprehended . . . .

Accordingly, I will remit 20 percent or $500, or a forfeit of [$]2000. Enter a judgment.

[Emphasis added.]

The forfeiture guidelines, relying upon authoritative judicial decisions, set forth the policy concerns in remission determinations, list eight factors to be weighed in making such determinations, and require a balancing of those factors. See State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007). The guidelines then set forth schedules which provide a "starting point" for the remission determination, taking into consideration certain critical factors as applied to a particular case. See id. at 372; see also State v. Ramirez, 378 N.J. Super. 355, 366-69 (App. Div. 2005) (setting forth in full the guideline schedules).

Safety acknowledges that its supervision of Cuadrado while he was free on bail was no more than minimal. Cuadrado was not a fugitive when the remission motion was made and he did not commit a new crime while a fugitive. One of the schedules applies to cases in which those circumstances exist. Under that schedule and under those circumstances: (1) minimal remission should be allowed where the surety failed to engage in immediate substantial efforts to recapture the defendant and, subject to a weighing of the eight factors we have mentioned, and if the defendant was at large six months or less, the remission starting point is twenty percent; (2) partial remission should be allowed where the surety did engage in immediate substantial efforts to recapture the defendant and, subject to a weighing of the eight factors, and if the defendant was at large six months or less, the remission starting point is seventy-five percent.

The critical factor, then, in distinguishing between whether a minimal remission or partial remission should be made in this case, is whether Safety engaged in "immediate substantial efforts" to recapture Cuadrado. The Surety's efforts are measured from the time it received notice of the failure to appear and forfeiture of bail. State v. Ruccatano, 388 N.J. Super. 620, 625-29 (App. Div. 2006). Substantial efforts are those that are reasonable under the circumstances of the case and are effective. Id. at 627-29. When a surety immediately undertakes to search for the missing defendant and immediately learns the defendant is in custody and confirms that fact with the court, the surety has done all that it possibly could do, thus constituting immediate and effective action under the circumstances. Ibid.

The trial judge did not have the benefit of our decisions in Ruccatano and Toscano when he found no immediate substantial recapture efforts. In light of those decisions, Safety's actions here constituted immediate substantial efforts to recapture Cuadrado. Within six days of receiving the notice of his failure to appear, Safety ascertained and confirmed with the court that he was in custody. There was no delay in Safety's action, and under the circumstances, Safety did everything it reasonably could in its fledgling recapture effort. It should not be penalized because Cuadrado was already in custody when it took its immediate action. Indeed, Cuadrado may have already been in custody when the notice to Safety was issued by the court.

Therefore, the starting point for partial remission under the guidelines applies, namely seventy-five percent. The trial judge apparently applied the minimal remission starting point of twenty percent and did not deviate from it.

We must weigh and balance the eight applicable factors identified in the guidelines to determine whether a deviation from the starting point is warranted. In Ruccatano, which also dealt with a $2,500 bail, the circumstances were practically identical to those here, with one very significant exception, namely that the defendant there did commit a new offense while a fugitive. Id. at 625. In balancing the factors, we considered in the surety's favor that it was a commercial bondsman, the defendant was a fugitive for a very brief length of time, there was no prejudice to the State, and the State incurred no expense for the defendant's recapture. Weighing against the surety were the small amount of the bail, the defendant's commission of another crime while a fugitive, and the intangible injury to the public. Id. at 627. We concluded that partial remission at the forty percent starting point provided in the applicable schedule (where a defendant was not a fugitive when the remission motion was made but did commit a new crime while a fugitive) was the correct result. Id. at 629. Thus, we implicitly concluded that the factors weighing for and against the surety were about equally balanced.

Consistent with our analysis in Ruccatano, we reach the same conclusion here. Of course, here, the starting point for partial remission is seventy-five percent because Cuadrado did not commit a new offense while a fugitive. Elaborating on the implicit finding in Ruccatano that the factors for and against deviation from the starting point are about equally balanced, we comment on the application in this case of two particular factors, one of which is on each side of the scale. Factor number eight, derived from our holding in State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003), requires consideration of the amount of the posted bail, taking into account not only an appropriate percentage for remission but also the actual dollar amount that will result. This factor weighs heavily against the surety. Factor number four, derived from our holdings in State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003), and State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), requires consideration of the length of time defendant is a fugitive. As we have stated, that time is measured from when the surety is notified of the defendant's fugitive status. In this case, Cuadrado may have already been in custody when the notice was sent, and, at most, he was a fugitive for no more than six days after the notice was sent. In light of the six month range in the schedule that yields the same remission starting point, consideration must be given to where the defendant in a particular case falls within that range. Cuadrado falls at the very low end, between zero and six days. This factor, therefore, weighs heavily in favor of the surety.

Finally, we are satisfied that our determination comports with the policy considerations underlying remission determinations, in that it will provide an incentive to sureties to take active and reasonable steps to recapture fugitive defendants, while not unduly discouraging sureties in their willingness to post bail. See de la Hoya, supra, 359 N.J. Super. at 199.

We therefore conclude that a seventy-five percent remission was appropriate in this case, and the remaining twenty-five percent of the bail should remain forfeited. An order in conformity with this decision should be entered on remand.

Reversed and remanded.

 

At the November 18, 2005 hearing, Safety's attorney sought to file an affidavit from a principal of the surety company. The judge declined to accept the late filing and invited Safety's counsel to file a reconsideration motion including that affidavit. Counsel did so, and the reconsideration motion was denied by order of March 1, 2006. We have been provided with no transcript or other statement of reasons accompanying the denial of the reconsideration motion. The affidavit we mentioned did not alter the undisputed facts as we have set them forth.

A third category, substantial remission, applies only where the surety provided close ongoing supervision while the defendant was out on bail. That is not the case here.

(continued)

(continued)

9

A-3780-05T1

March 15, 2007