STATE OF NEW JERSEY v. CANDIDO CRUZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4553-07T14553-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CANDIDO CRUZ,

Defendant,

and

SAFETY NATIONAL CASUALTY

CORP.,

Defendant-Appellant.

____________________________________

 

Argued January 21, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

Number 05-11-01091-I.

Samuel M. Silver argued the cause for

appellant.

Brendan J. Kavanagh argued the cause for

respondent (Kavanagh, Kavanagh & DiLazzero,

attorneys; Mr. Kavanagh, on the brief).

PER CURIAM

Safety National Casualty Corporation ("Safety National") is a commercial surety that posted a $25,000 bail bond in support of the release of Candido Cruz. The court issued a bench warrant when Cruz failed to appear at a scheduled court date. Safety National was not notified. At a subsequent forfeiture hearing, the court entered judgment ordering a forty percent remission of the bond.

Safety National now appeals, arguing that the trial court committed reversible error when it ordered the forty percent remission without first notifying Safety National of Cruz's fugitive status. Safety National also argues that the court failed to make the findings necessary to support the percentage of remission ordered. We agree with appellant's position regarding the lack of notice and reverse.

On May 28, 2005, Safety National posted a $25,000 bail bond in support of Cruz's release pending the resolution of outstanding criminal charges. As a commercial surety, Safety National was responsible for supervising and monitoring Cruz to insure his appearance at any scheduled court event. Here, the only evidence that Safety National fulfilled its responsibility in this respect comes in the form of a letter dated December 12, 2005, through which Safety National notified Cruz of a court appearance scheduled the next day, December 13, 2005. The letter admonished Cruz that his failure to appear would result in a bench warrant being issued for his arrest, together with the revocation of his bail.

This notice was returned to Safety National stamped "attempted not known" by the United States Postal Service. Cruz failed to appear at court on May 13, 2005; a bench warrant was issued for his arrest on that same date. Due to an apparent clerical error, Safety National was not given notice of Cruz's failure to appear.

Upon receiving the postal return notice, Safety National checked Promis Gavel, the Criminal Part's computerized information management and record keeping system, and discovered that a bench warrant had been issued for Cruz's failure to appear. In response, Safety National hired private investigator Richard Padron to find and return Cruz to the court's jurisdiction. According to Padron's sworn statement dated November 7, 2007, he found an article on the Buena Vista Township website reporting Cruz's arrest by federal authorities on March 13, 2006.

In a letter to the trial court dated April 17, 2008, Safety Nation's counsel Samuel Silver represented that Padron had searched the federal inmate locater and discovered that Cruz was incarcerated in the Federal Detention Center in Philadelphia. According to Silver, Cruz was subsequently transferred to a federal correction institution located in Fairton, New Jersey. In this light, Silver requested that the court revoke Cruz's bond and exonerate the surety.

On the day following Silver's letter, the court conducted a forfeiture hearing. In the course of determining the status of the bond, the court confirmed that, despite the issuance of the bench warrant, no forfeiture order had been entered on Promis Gavel. The State also stipulated that the court did not notify the surety of Cruz's failure to appear.

Against these facts, the hearing judge found: (1) Cruz was not a fugitive at the time the State moved for remission because he was in federal custody; (2) Cruz appeared to have committed a crime while on bail status; (3) the surety provided minimal to no supervision; and (4) the question of whether the surety made substantial efforts to locate Cruz was not relevant because Safety National never received the failure to appear notice. Based on those findings, the court ordered that the surety receive a forty percent remission of the $25,000 bond, or $10,000.

We begin our analysis by reaffirming our standard of review. "[T]he decision to remit bail and the amount of remission 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). To reverse or modify the court's decision here we must find legal error or, based on the evidence adduced, a mistaken exercise of discretionary authority. State v. Madan, 366 N.J. Super. 98, 110 (App. Div. 2004) (quoting Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6 (App. Div.), certif. denied, 43 N.J. 125 (1964)).

We first address the question of legal error. It is undisputed that, in violation of R. 3:26-6(a), the Finance Division Manager did not notify the surety of Cruz's failure to appear at a scheduled court date, triggering the revocation of his bail and the issuance of a bench warrant for his arrest. This alone requires reversal.

In State v. Hawkins, 382 N.J. Super. 458, 467 (App. Div. 2006), we made clear that failure to give a surety the notice required under R. 3:26-6(a) constitutes reversible error because had the surety been given such notice, "it could have sought to surrender defendant and moved for exoneration pursuant to R. 3:26-7." Here, the surety could have also sought exoneration based on Cruz's status as a federal detainee, which rendered him unable to report to the court as directed.

Although this legal error is dispositive, we are compelled to make the following brief comments concerning the court's findings. There is no competent evidence to support the court's finding that Cruz committed a new offense while on bail. The only reference to a new crime came from private investigator Padron's statement. In it, Padron merely indicates that a news story found on the internet alleged that Cruz had been detained by federal authorities. No other indication is given as to the nature of the offense, or whether any formal action had taken place, such as the issuance of an indictment or other such accusatory instrument.

Furthermore, the court's forty percent remission is also not supported by reasoned analysis, explaining the basis for this particular percentage of remission. Without such analysis, we are left to speculate as to the basis for the court's ultimate ruling. State v. Dillard, 361 N.J. Super. 184, 187 (App. Div. 2003).

 
Reversed and remanded.

(continued)

(continued)

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A-4553-07T1

April 24, 2009