STATE OF NEW JERSEY v. NINJA WHEELER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2736-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NINJA WHEELER,

Defendant,

and

FIRST INDEMNITY OF AMERICA

INSURANCE COMPANY (SURETY),

Defendant-Appellant.

____________________________

November 9, 2011

Argued October 25, 2011 - Decided

Before Judges Payne and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-01-0026.

Edgardo F. Galleno argued the cause for appellant.

Patricia C. Melia argued the cause for respondent (The Bell Law Group, PC, attorneys; Joseph J. Bell, of counsel; Ms. Melia, on the brief).

PER CURIAM

First Indemnity of America Insurance Company appeals from a November 3, 2010 order denying its motion to stay entry of judgment, to vacate a forfeiture, or to exonerate the surety and discharge a bail bond. We affirm.

Appellant has provided us with a sparse record, from which we summarize the following pertinent information. On April 17, 2009, First Indemnity, acting through Accurate Bail Bonds, posted a $15,000 bail bond for defendant Ninja Wheeler, who was charged in Warren County with several drug-related offenses and terroristic threats to kill. After Wheeler failed to appear for a scheduled court proceeding on November 9, 2009, Judge Coyle ordered that the bail be forfeited, unless First Indemnity made a timely motion to have the forfeiture set aside. See R. 3:26-6(a). Despite receiving the notice of bail forfeiture dated December 2, 2009, First Indemnity did not file a motion to vacate the forfeiture until September 3, 2010. See R. 3:26-6(c)(permitting a motion to remit a bail forfeiture after entry of judgment for forfeiture).

The motion was supported by a certification of Mark Staats, a case monitoring supervisor for Accurate Bail Bonds (Accurate). According to Staats, after bail was posted, defendant was taken to Mercer County where he was charged with a probation violation. Staats attested that after defendant was transported to Mercer County, Accurate was "unable to locate the defendant in the system" because he was using an alias of "Eric Stone," a name "for which there was no record in Warren County." Staats asserted that he then contacted "the indemnitors on the bond" (presumably defendant's family) who told him that they were no longer interested in providing defendant with a place to live and believed that he intended to skip bail.

Staats further attested that on learning this information, the surety "filed a motion to revoke the defendant's bond." However, Staats provided no documentation to support that assertion. Instead, attached to his certification are a series of letters from employees of Accurate to the Warren County Superior Court expressing concern that Wheeler would become a fugitive and expressing "our desire to have the above-mentioned bond revoked." The letters were not accompanied by a certification, affidavit or other legally competent evidence. All of those letters were sent to the court ex parte, without copies to Wheeler or his attorney. None of the letters remotely constituted a "motion."

The first three letters, dated June 15, August 7, and August 12, 2009, asserted that "[a]t this current date, Mr. Wheeler is still currently incarcerated in Mercer County." Yet, copies of the letters were not sent to the court in Mercer County or to law enforcement agencies in that county, to alert them that Wheeler was a flight risk. Apparently, the surety's only concern was to have its bond canceled, rather than to ensure that Wheeler did not flee. Further, at that point, there was still time to file a formal motion to revoke the bond and prevent Wheeler's release, but there is no evidence on this record that such a motion was filed.

At some point after Wheeler was released from the Mercer County Jail, he fled to Georgia where he allegedly committed a murder. He was not apprehended until October 25, 2010, when he was arrested in California. Staats' certification contained no information about the bonding company's efforts to supervise or contact Wheeler at any time before he fled, or to locate him after he became a fugitive. The surety's motion did not provide any other legally competent evidence concerning its efforts to supervise or locate Wheeler.

In denying the motion, Judge Coyle issued a thorough statement of reasons considering each of the factors set forth in State v. Hyers, 122 N.J. Super. 177 (App. Div. 1973), and State v. Peace, 63 N.J. 127 (1973), to determine whether the interests of justice would be served by setting aside the forfeiture in whole or in part. R. 3:26-6(b). He determined that the forfeiture should not be set aside.

On this appeal, the surety asserts the following point of argument:

THE TRIAL COURT ERRED IN DENYING REMISSION PURSUANT TO THE REMITTITUR GUIDELINES WHERE DEFENDANT WAS IN CUSTODY WITHIN ONE YEAR OF THE BAIL FORFEITURE.

Based on our review of the record, First Indemnity's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Coyle's opinion. We add the following comments.

There is no evidence in this record that the surety made any effort to supervise Wheeler or to locate him after he fled. See State v. Mercado, 329 N.J. Super. 265, 271-73 (App. Div. 2000). The surety's assertions to the contrary have no supporting citations to record evidence, and find no support in the record provided to us. The fugitive defendant was missing for just short of a year and still had not been returned to New Jersey or "return[ed] to court" by the time of the hearing on October 29, 2010. Hyers, supra, 122 N.J. Super. at 180. While he was a fugitive, he was charged with committing a murder. We find no abuse of the trial court's discretion in denying the surety's motion. See Peace, supra, 63 N.J. at 129.