STATE OF NEW JERSEY v. AVERY STUBBS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3781-05T13781-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AVERY STUBBS,

Defendant,

and

AMERICAN CONTRACTORS

INDEMNITY COMPANY,

(SURETY),

Defendant-Appellant.

_________________________________

 

Argued: March 6, 2007 - Decided March 15, 2007

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, W2005-524.

Samuel M. Silver argued the cause for appellant.

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

PER CURIAM

American Contractors Indemnity Company (American) appeals from the March 1, 2006, order of the Law Division directing partial forfeiture and remission of bail. We affirm.

On April 15, 2005, American posted a $10,000 bail bond for defendant Avery Stubbs. After posting the bond, the surety had regular contact with defendant, who checked in by telephone as required by the surety, from April through mid-August. However, from mid-August until mid-October 2005, there was no contact between defendant and the surety. On October 11, 2005, Stubbs failed to appear in Superior Court, Cumberland County, as required. The judge immediately issued a bench warrant for defendant and an order forfeiting the bail. On October 24, 2005, the court sent a notice of the bail forfeiture to American. See R. 3:26-6(a).

Upon receiving the notice, American immediately assigned the matter to a bail recovery agent. On November 2, 2005, nine days after the notice of forfeiture was generated, the agent apprehended and surrendered defendant to the Cumberland County Sheriff's Department. Defendant had not been charged with committing a new crime while a fugitive.

American moved to vacate the forfeiture, exonerate the surety and discharge the bond. The State opposed the motion. Following oral argument on the motion, the court considered the factors set forth in the Remittitur Guidelines. It found the surety provided close, ongoing supervision of defendant for all but the approximate two-month period from mid-August through mid-October, and there were immediate and substantial efforts to recapture defendant. Reasoning that the surety was lax in monitoring during the two-month period and noting that defendant's failure to contact the surety during that time after telephoning "like clockwork" should have alerted the surety that something was amiss, the court concluded that the surety was not entitled to a 95% remission under the "substantial remission" guideline. On the other hand, the surety had provided more than "minimal or no supervision while the defendant was out on bail" and was thus entitled to more than 75% under the "partial remission" guideline. Although he did not have the benefit of our decision in State v. Toscano, 389 N.J. Super. 366 (App. Div. 2007), Judge Farrell blended the two guidelines and entered an order remitting 85% ($8500) and forfeiting the remaining 15% ($1500) of the posted bail.

American appeals, arguing the trial court erred in failing to consider all of the equitable factors set forth in the case law pertaining to remission and failed to articulate its consideration of the required factors on the record. More particularly, American argues that the facts support a 95% remission of its bond under the guidelines and case law. We are not persuaded by appellant's arguments and perceive no abuse of discretion or error of law by the trial court in its determination of the percentage and amount of the remission of the bail bond posted by the surety.

Affirmed.

 

Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (2004).

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A-3781-05T1

March 15, 2007