STATE OF NEW JERSEY v. VERNON SCURRY and SAFETY NATIONAL CASUALTY CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5331-07T15331-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERNON SCURRY,

Defendant,

and

SAFETY NATIONAL CASUALTY CORP.,

Defendant-Appellant.

___________________________________

 

Argued October 14, 2009 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-09-00759-I.

Samuel M. Silver argued the cause for appellant.

Brendan J. Kavanagh argued the cause for respondent (Kavanagh & Kavanagh, LLC, attorneys; Mr. Kavanagh, on the brief).

PER CURIAM

Safety National Casualty Corporation (Safety National), a corporate surety, appeals from a Law Division order remitting ten percent of the forfeited bail it posted for defendant, Vernon Scurry (defendant). Safety National argues the trial court abused its discretion when it failed to consider all required factors before ordering forfeiture of ninety percent of the bail bond amount. Safety National further asserts the court failed to properly articulate the reasons for its determination. Following our review, we agree the record is insufficient to support the limited remission ordered. Therefore, we reverse and remand for further review by the trial court.

Safety National posted a $20,000 bail bond for defendant. As a result of his failure to appear in court on January 2, 2008, defendant's bail was revoked, a warrant was issued, and forfeiture of the posted bail was ordered. On January 15, 2008, Safety National received a notice of bail forfeiture and, on February 5, 2008, referred the case to its recovery agent, Direct Recovery (Direct). On March 24, 2008, Direct located defendant in the Cape May County Jail.

On the basis of defendant's incarceration, Safety National moved to stay the entry of judgment or the execution of the judgment, and to vacate the forfeiture, exonerate the surety and discharge the bond. On the motion return date, Safety National argued defendant was a fugitive for a relatively short period of time and, therefore, substantial remission was appropriate. The State argued Safety National's failure to provide any monitoring or to engage in immediate, substantial efforts to secure defendant's recapture should result in absolute forfeiture of the bail amount. The court informed counsel defendant was in custody, as he was "alleged to have been [involved] in a second-degree burglary in Cape May County."

The trial judge, relying on his finding that "[defendant] did commit a new crime," made the following determinations:

I find that there was minimal or no supervision; that [defendant] was out on bail and I would say a failure to engage in immediate and substantial efforts to recapture the defendant. I am going to provide a minimal remission, nevertheless. The time period was far less than six months. It was approximately two months or two and a half months, almost three, after he failed to appear. I will reimburse 10 percent of the amount . . . ordered [forfeited] . . . remitted to the surety.

This appeal followed.

We have long recognized that "the 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) (citing State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003)). The court's discretion must be guided by the standards articulated in State v. Mercado, 329 N.J. Super. 265, 271-72 (App. Div. 2000), and State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), as well as the policy concerns identified in de la Hoya, supra, 359 N.J. Super. at 199, which provides a commercial surety must be given reasonable incentive to attempt recapture of non-appearing defendants and that the surety's burden should not be so great as to risk impairment of a defendant's right to post pre-trial bail. We emphasized that "the focus of the bail forfeiture procedure is the vindication of the public interest and not primarily revenue raising." Clayton, supra, 361 N.J. Super. at 393.

A trial court's decision to remit bail and the amount of the remission are equitable in nature. In addition to the amount of the bail posted, the judge should consider: (1) the corporate or private status of the surety, (2) the nature and extent of supervision by the surety while the defendant is released on bail, (3) the surety's efforts to return the defendant to custody, (4) the time between the failure to appear and the return to custody, (5) the prejudice to the State attributable to the absence of the defendant, (6) the expense incurred by the State due to the absence of the defendant, and (7) whether reimbursement of expenses incurred by the State will satisfy the interests of justice. Hyers, supra, 122 N.J. Super. at 180. Additionally, the Supreme Court has noted "[t]here is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case." Peace, supra, 63 N.J. at 129. Moreover, a defendant's commission of another offense while a fugitive is "a significant element of intangible injury to the public." de la Hoya, supra, 359 N.J. Super. at 200.

In an effort to aid a trial court's decision, the Administrative Office of the Courts promulgated Remittitur Guidelines under Directive # 13-04 on November 17, 2004, which were most recently supplemented on November 12, 2008 (Guidelines). The Guidelines, "provide judges with a starting point when determining whether to grant a remission, and, if granted, the amount to remit." Directive # 13-04, as supplemented on November 12, 2008, at 4.

Attached to the Guidelines are three schedules to assist judges in determining bail remission. Id. at. 6-8. Remission Schedule 1 encompasses situations where a defendant is still a fugitive. Id. at 6. Remission Schedule 2 covers situations where a defendant is no longer a fugitive and had not committed a new crime while a fugitive. Id. at 7. Remission Schedule 3 applies to situations where a defendant committed a new crime while a fugitive. Id. at 8.

"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 have been weighed in accordance with the policy concerns." State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007). The schedules make it clear that a defendant's commission of a new offense after failing to appear while released on bail, along with the surety's level of supervision while the defendant was free on bail, and its efforts to recapture a fugitive defendant, are important considerations when determining whether remission of a forfeited bail is appropriate, and, if so, in what amount.

In the present case, Safety National does not dispute it engaged in minimal or no supervision efforts while defendant was released on bail. However, the surety challenges the court's imposition of an order of minimal remission based upon a determination that Safety National "fail[ed] to engage in immediate and substantial efforts to recapture the defendant" once informed of his non-appearance, and that defendant was in custody for committing an offense while a fugitive. Therefore, Safety National argues a forty percent remission is appropriate.

At oral argument, the State conceded there was no support for the trial court's finding that defendant committed a new alleged offense on March 22, 2008. It is undisputed defendant was jailed on that date, but unless and until the State proves defendant was in custody for commission of an offense committed while a fugitive, the appropriate amount of remittitur cannot be calculated. This alone warrants a remand. We reject, however, Safety National's contention that the court must await the outcome of the new criminal charges against defendant to determine whether he committed a new crime for purposes of determining the appropriate amount of bail to remit. Constitutional and evidentiary standards applicable to a criminal prosecution are not applicable to the issue of bail remission.

Reviewing the court's analysis of the other factors, we conclude the judge properly considered Safety National's lack of supervision of defendant while on bail, the length of time defendant was a fugitive and the amount of posted bail. However, the trial judge's May 16, 2008 opinion omits consideration of the prejudice to and the expense incurred by the State as a result of defendant's failure to appear, his recapture, enforcement of the forfeiture, and, as to any expense incurred, whether the reimbursement of those expenses would adequately satisfy the interest of justice. State v.
Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003).

Additionally, the trial court did not properly support its findings that Safety National failed to engage in immediate and reasonable efforts to recapture defendant once it was advised of his failure to appear, justifying ten percent remission. In State v. Ruccatano, 388 N.J. Super. 620, 625-29 (App. Div. 2006), we explained the phrase "immediate substantial efforts" in the context of the surety's recapture efforts in this way:

[T]he immediacy of the surety's efforts should ordinarily be measured from the time the surety is informed of the warrant/ forfeiture, without reference to when it would or should have learned of that fact if there had been proper supervision. However, this is not to say that if the surety is informed of the warrant at some point after the defendant's failure to appear and then fails to act on that information, it is to be excused. Such failure would constitute a lack of immediacy.

. . . .

What constitutes "a reasonable effort" will obviously vary with "the circumstances." Here, there is no doubt [the surety's] efforts were effective in that it accomplished the essential purpose of locating defendant so that he could be returned to Morris County, albeit without much effort. As a result, those efforts were clearly reasonable "under the circumstances." As we view it, reasonable equates with effective.

. . . .

As used in the Guidelines, substantial does not relate solely to the quantum of effort required, but to the quality of that effort. In some cases, much effort and expense by the surety may be needed to locate and recapture the errant defendant, while in other cases, as here, only a small effort may lead to the same result. Clearly, it would make no sense to provide a greater remission to a surety whose agents were inefficient and expended more effort to find the defendant while awarding less to the surety whose agents were efficient and accomplished their task with less effort. The primary policy concerns identified by the Guidelines are to provide the surety with an incentive to find and recapture the fugitive.

[Id. at 626-28 (footnote omitted).]

Here, Safety National correctly notes the trial court's conclusory determinations on these factors were not explained. However, we disagree that there is no support for the trial court's determination in the limited record.

Although defendant failed to appear on January 2, 2008, Safety National was not notified until January 15, 2008. Because Safety National conceded its failure to supervise, it is not additionally penalized for ineffective recapture efforts between these dates. Id. at 626. Three weeks later, it contacted its recovery agent. Whether Safety National's actions can be said to be immediate has yet to be clearly determined. There is no absolute standard of what constitutes immediacy and any determination must be made by weighing all the circumstances. See, e.g., Toscano, supra, 389 N.J. Super. at 374 (concluding surety did "everything necessary under the circumstances" to recapture defendant, as the one month delay in referring the matter to its recovery agent was not a factor, as the defendant was no longer a fugitive when the surety received notice).

Further, Safety National presents no evidence of the actual recapture efforts. Thus, we can assume, as did the trial court, that between February 15 and March 24, 2008, Direct merely made a computer check and learned defendant was incarcerated. The reasonableness of this effort should be viewed in the context of whether defendant committed a new crime during this time. Again, the trial court's findings are lacking.

In entering an order of remittitur, "[i]t is not enough for the court to recite the relevant factors; the court 'must also explain how it weighed them.'" Toscano, supra, 389 N.J. Super. at 370 (quoting de la Hoya, supra, 359 N.J. Super. at 200). Accordingly, the trial court must not only discern whether the defendant committed a new offense while a fugitive, but also assess and weigh Safety National's recovery efforts guided by the standards stated in Ruccatano, supra, 388 N.J. Super. at 625-29.

 
The order of the trial court is reversed, and the matter remanded for further proceedings in accordance with this opinion. Jurisdiction is not retained.

Remission Schedule 3 of the recently supplemented Guidelines suggests ten percent remission of the forfeited bail is appropriate when defendant is not a fugitive when the remission motion is made, defendant committed a new crime while a fugitive and "[w]here the surety provided minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture the defendant" who was a fugitive for less than six months.

(continued)

(continued)

11

A-5331-07T1

November 16, 2009