Opinion
DOCKET NO. A-0609-13T1
03-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MASTA PUGH, Defendant, and RAPID RELEASE BAIL BONDS and AMERICAN SURETY COMPANY, Defendants-Appellants.
Richard R. Capone argued the cause for appellants. William T. McGovern argued the cause for respondent (McKenna, DuPont, Higgins & Stone, attorneys; Mr. McGovern, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-011. Richard R. Capone argued the cause for appellants. William T. McGovern argued the cause for respondent (McKenna, DuPont, Higgins & Stone, attorneys; Mr. McGovern, of counsel and on the brief). PER CURIAM
Defendant Rapid Release Bail Bonds, Inc., a bail bond company, and its insurer, defendant American Surety Inc., appeal from an order denying their bail forfeiture remission motion. Because we find inequitable the denial of any remission where the accused remained a fugitive for only forty-eight days and defendants made efforts to locate him, we reverse and remand.
On August 4, 2012, Rapid Release posted a bond for $6,700 to cover bail set in municipal court for defendant Masta Pugh. The record reveals that Rapid Release contacted Pugh once by telephone before the required appearance; there is nothing in the record to suggest this was wholly inadequate considering the relatively minor nature of the offense and the amount of the bail. Pugh did not appear on the scheduled court date.
A notice of forfeiture was sent to Rapid Release, who called Pugh three times without success and then hired an investigator who searched for Pugh on six occasions before he was apprehended by law enforcement officers on October 11, 2012, forty-eight days after the bench warrant was issued.
Proceedings seeking forfeiture of the bond were instituted and eventually a default judgment was entered by the municipal judge. Defendants unsuccessfully moved for relief, and thereafter appealed to the Law Division, which also denied relief.
In this appeal, defendants argue:
I. THE ENTIRE MATTER SHOULD BE IMMEDIATELY REMANDED TO SUPERIOR COURT FOR FURTHER FACTUAL DEVELOPMENT AND BECAUSE THE DEFAULT JUDGMENT WAS UNFAIRLY ENTERED IN OVERSIGHT DESPITE SURETY'S COMPLIANCE WITH THE PLAIN LANGUAGE OF R. 7:4-5 TO SUBMIT A WRITTEN OBJECTION.We need not consider the contentions regarding the manner in which judgment was entered against defendants in the municipal court because we do agree that remission, to some degree, was required in these circumstances.
II. THE MATTER SHOULD BE REMANDED FOR SUPPLEMENTATION OF THE RECORD BECAUSE THE MUNICIPAL COURT ALLOWED PREJUDICIAL HEARSAY INTO THE RECORD, WITHOUT PRIOR NOTICE TO COUNSEL, WITHOUT ANY OPPORTUNITY FOR CROSS EXAMINATION OR REBUTTAL WITNESSES.
III. IF THE COURT RETAINS ORIGINAL JURISDICTION IT SHOULD ASSESS ADMINISTRATIVE COSTS CONSISTENT WITH ADMIN. DIR. 13-04 (AND SUPPLEMENTS) AND IT'S UNDERLYING POLICIES.
A court has the discretion to remit bail "in whole or in part in the interest of justice." R. 7:4-5(c); State v. Peace, 63 N.J. 127, 129 (1973). To assist judges in the exercise of their discretion, bail forfeiture remission guidelines were promulgated by the Administrative Director of the Courts. These guidelines provide judges "with a helpful starting point" for making remission determinations, which may thereafter vary for other reasons, including whether the accused remains a fugitive when the remission motion is made and whether the accused committed a crime while a fugitive. State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006); see also State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003); State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).
Supplement to Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (Nov. 12, 2008), http://www.judiciary.state.nj.us/directive/2008/dir_13-04_Supplement_11_12_08.pdf.
Here, the Law Division judge did not conduct an evidentiary hearing into any of the circumstances that were either disputed or appeared uncertain in light of the parties' presentations. Instead, the judge based his decision on the parties' written and oral submissions. Accordingly, the judge's view of the facts is not entitled to deference.
In discussing the Hyers factors in his written opinion, the judge noted that some of those factors, i.e., that movant is a commercial bondsman and defendant was a fugitive for only forty-eight days, favored remission. Others counseled against remission, such as the prejudice to the State in having to locate defendant, although the record disclosed no information regarding the efforts or expense incurred in capturing Pugh. The judge also held that defendants had taken a business risk, which the judge apparently viewed sufficient to warrant the loss of the bond, but the judge also recognized that defendants had made an effort to stay in touch with Pugh, that Pugh had also checked in with defendants prior to the court date, and that defendants made efforts to locate the accused prior to his arrest.
In Hyers, supra, 122 N.J. Super. at 180, we identified the seven relevant factors as: "(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; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interest of justice."
The judge also relied on the municipal judge's recounting of something apparently said to him by the court administrator by a representative of the bail bondsman that the accused was known to be a high risk for appearing. We assume that in the proceedings to follow any such evidence will be presented to the judge by sworn statement and will be considered only if it falls within a known hearsay exception.
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Considering these circumstances, we conclude that the denial of any remission was inequitable and erroneous. For example, in Harris, we found a determination "consistent with the [g]uidelines," where seventy-five percent of a $35,000 bail was remitted after the accused, a fugitive for seventy-nine days, was ultimately apprehended by local law enforcement and did not commit any additional crimes while a fugitive. 382 N.J. Super. at 68, 70-72. Here, the record is silent as to whether Pugh committed an offense, but for the most part this case varies little from Harris. Consequently, the trial judge's decision to refuse any remission cannot be squared with Harris or the guidelines themselves, which were intended to "achieve uniformity" in such matters. Id. at 71.
We conclude that defendants have demonstrated entitlement to some remission. We remand for amplification of the record, particularly with regard to the important question of whether the accused committed another offense while a fugitive.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION