STATE OF NEW JERSEY v. MICHAEL MEYER and ALLEGHENY CASUALTY COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5209-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MEYER,

Defendant,

and

ALLEGHENY CASUALTY

COMPANY,

Defendant-Appellant.

___________________________________________

December 12, 2011

Submitted March 2, 2011 - Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-07-157-S.

Richard P. Blender, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Appellant Allegheny Casualty Company, appeals from a May 21, 2010 order granting eighty-five percent partial remission of the forfeited bail bond of defendant Michael Meyer. The corporate surety posted a $50,000 bail bond to assure the appearance of defendant, who subsequently failed to appear. Appellant argues the forfeiture amount of $7,500 is excessive in light of the circumstances. We find no abuse of discretion and, therefore, affirm the court's judgment.

According to Richard Sparano, agent for appellant, after the surety posted the bond on September 4, 2008, defendant was required to report regularly and he remained compliant. However, on January 4, 2010, sixteen months after the bail was posted, defendant failed to appear in court. Appellant was notified on January 12, 2010, and defendant was re-apprehended on January 15, 2010.

On April 12, 2010, appellant moved to vacate the bail forfeiture and for discharge of the bail posted. The trial court granted remission of eighty-five percent. The Law Division found Remission Schedule II applicable and that the case fell into the category between partial and substantial remission. The court based its decision on its finding that the supervision by appellant was substantial but became "a little relaxed towards the end of it." This appeal ensued.

"[T]he decision to remit and the amount of remission lies essentially in the discretion of the trial court." State v. Ventura, 196 N.J. 203, 213 (2008) (citing State v. Peace, 63 N.J. 127, 129 (1973)). We therefore, review the court's decision for an abuse of discretion.

The list of factors a court should consider before remission are:

(a) whether the applicant is a commercial bondsman; (b) the bondsman's supervision, if any, of defendant during the time of his release; (c) the bondsman's efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the State because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; [and] (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.

[State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).]

"The surety has the burden of proof, and it must provide facts that favor remission based on its efforts." State v. Toscano, 389 N.J. Super. 366, 376 (App. Div. 2007) (citing State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000)). Appellant argues the court erred by not properly considering all applicable factors. Specifically, appellant argues the court failed to consider the amount of the bond ($50,000), the quick recapture of the defendant (three days), and the lack of expense and prejudice to the State. We disagree with all of the appellant's contentions as they are without support in the record. The record clearly shows the court listed and analyzed the factors stating:

Number one is whether the Surety made a reasonable effort under the circumstances to affect the recapture of the fugitive Defendant.

Reasonable efforts means an effective effort, according to the State, which indicates Surety should be given full credit under [State v.] Toscano, [ 389 N.J. Super. 366 (App. Div. 2007)] because authorities recovered the Defendant within three days of forfeiture. The Court will give the Surety full credit.

Factor number two is whether the Applicant is a commercial bail bondsman, which it is so it'll be credit[ed] under factor number two.

Number three is the degree of Surety supervision of the Defendant while he was out on bail. That's the disputed part that the Court previously referenced.

The Court does find that, for the first several months up until that August date, there was substantial supervision. After that period in August the supervision, for whatever reason dropped off, not completely but substantially.

[F]actor four[,] the length of time the Defendant was a fugitive was only three days.

With regards to prejudice to the State, the Court hasn't [been] presented anything under that factor.

Number six is whether the reimbursement will adequately satisfy the interests of justice. The Court doesn't place much weight. There has been not much presented with regards to that particular factor.

Number seven is Defendant's commission of another crime while a fugitive, which the Defendant did not.

And number eight is the amount of the posted bail, which was 15 -- $50,000, which the Court finds to be substantial.

In applying all of these factors, the Court finds that Remission Schedule II is applicable. The Court finds that this case does fall into the category between partial remission and substantial remission.

And the in between part deals with the extent of the ongoing supervision. I found that early on, it was substantial and then it dropped of[f].

The court determined it would remit eighty-five percent of the bond, forfeiting only fifteen percent. The court also noted the amount of the bond, stating "I am also factoring in the fact that it is a $50,000 bail, which the court does find to be substantial."

We are convinced the court appropriately considered the effort expanded by the surety and balanced the policy concerns that should provide an incentive for the surety to take active and reasonable steps to recapture while avoiding unreasonable measures that would likely lead the surety to be overcautious in posting future bail bonds. The court took into account the relative lack of expense to the State and to the surety as defendant was quickly recaptured and incarcerated as a result of the efforts of law enforcement. We are satisfied the Law Division adequately considered and explained the factors influencing its decision, and those factors are supported by the evidence in the record. We find no abuse of discretion in the court's ruling.

Affirmed.