Opinion
DOCKET NO. A-3379-13T1
05-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAMUEL LOPEZ, Defendant, and CYBER BAIL BONDS, Defendant-Appellant.
Samuel M. Silver, attorney for appellant. Christopher A. Orlando, Camden County Counsel, attorney for respondent (Catherine Binowski, Assistant County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-09-02687. Samuel M. Silver, attorney for appellant. Christopher A. Orlando, Camden County Counsel, attorney for respondent (Catherine Binowski, Assistant County Counsel, on the brief). PER CURIAM
This is a bail forfeiture case. Cyber Bail Bonds (Cyber) appeals from a February 27, 2014 Law Division order forfeiting forty percent of the $35,000 bond paid for defendant Samuel Lopez. Cyber contends that a larger percentage than sixty percent should have been remitted, because it satisfied its essential obligation to secure defendant's return to custody. For the reasons that follow, we affirm.
We discern the following facts from the record. On July 3, 2013, Cyber posted a $35,000 bond for Lopez. After his release on bail, defendant failed to check-in on a regular basis. Cyber engaged in several efforts in an attempt to locate him. Cyber also confirmed defendant's September 27, 2013 court date and informed defendant's counsel. Defendant failed to appear in court, which caused the trial court to issue a bench warrant and forfeit his bail.
From the limited record available, it appears that defendant was charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7, and second-degree eluding an officer, N.J.S.A. 2C:29-2(b).
Upon learning that defendant had failed to appear in court, Cyber began contacting defendant's friends and family to locate him. Based on a tip from a former employer, Cyber learned that defendant had been arrested on August 28, 2013, in Philadelphia. On October 7, 2013, Cyber received a phone call from someone in the Camden County Prosecutor's Office. Cyber advised the prosecutor that defendant was incarcerated in Philadelphia and prepared a motion addressed to the court requesting bail be discharged and revoked. Instead of filing the motion with the trial court, the motion was faxed to the prosecutor's office. It is undisputed that the prosecutor's office never received the papers and Cyber never followed up.
On October 30, 2013, defendant was released from custody in Philadelphia. Subsequently, on November 9, 2013, defendant was arrested in New Jersey on new charges. On December 17, 2013, the court entered a default judgment in the amount of $35,000 against Cyber. Thereafter, Cyber filed a motion seeking revocation and discharge of the bail and the court stayed the forfeiture.
The record does not indicate the nature of the new charges.
At the February 27, 2014 hearing on Cyber's motion, Honorable Frederick J. Schuck heard testimony from Troy Oglesby, Cyber's owner. At the close of the hearing, Judge Schuck found Oglesby to be a credible witness and determined that Cyber had provided minimal supervision of defendant while he was out on bail and made some effort to recapture defendant after learning that he had failed to appear in court. While acknowledging that Cyber attempted to inform the prosecutor's office of defendant's location, the court found that Cyber "needed to seek the assistance of the Court" and "ha[d]n't really taken all the steps necessary" such as following up with the prosecutor's office or continuing to monitor defendant's whereabouts. Thus, even "[g]iving the benefit" to Cyber, Judge Schuck determined that sixty percent remission was appropriate and ordered that forty percent of the bond, $14,000, be forfeited to the State. This appeal followed.
On appeal, Cyber argues that the trial court should have exonerated and discharged the entire bond because (1) defendant was incarcerated at the time of his court appearance and but for the State's inaction to prevent defendant's release, he would not have committed a new crime; (2) the equities tipped in its favor; and (3) no substantial forfeiture was required.
In evaluating the issues before us, we first consider the basic principles that guide us. Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission is committed to 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)). In determining whether to remit a bail forfeiture, a court considers:
(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 interests of justice.
[Ibid. (quoting State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)).]
In seeking remission of a forfeited bond, the surety bears the burden to prove that forfeiture is inequitable. Ibid. (citing State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975)). Whether the surety seeks partial or total remission of a forfeiture, the surety must "show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody[.]" State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000). The State bears the simple burden to prove that the defendant did not appear in court. State v. Ramirez, 378 N.J. Super. 355, 365 (App. Div. 2005) (citing Fields, supra, 137 N.J. Super. at 81). The trial court, in turn, is required to identify and weigh the factors that inform the decision regarding a remission request. Id. at 370; see also State v. de la Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003).
Moreover, the Guidelines contained in Directive #13-04 reflect the accumulated case law, and are available to guide the trial court's exercise of discretion. The Guidelines are designed, however, to be the starting point in any determination to remit a forfeiture and the amount of any remission. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006).
The Administrative Office of the Courts promulgated Directive #13-03, which includes a set of guidelines (the Guidelines) for the handling of requests for remission from bail forfeiture. Initially issued in December 2003, they were reissued in November 2004, in Directive #13-04 and in 2008, were revised.
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Here, Judge Schuck considered and applied each of the relevant factors for remission. The court noted that Cyber engaged in "substantial" supervision up to the point of locating defendant after he failed to appear, but thereafter, "cut . . . short" its efforts "based on [Oglesby's] erroneous belief that the Prosecutor's Office was somehow going to secure his position by way of administratively issuing some sort of a detainer." The court also noted that defendant was a fugitive for at least eleven days and during that period he allegedly committed a new crime for which he was ultimately arrested in New Jersey. The court also took into consideration that the State incurred some expense as the prosecutor must prepare and attend hearings on these motions.
We affirm the bail forfeiture order substantially for the reasons expressed by Judge Schuck in his oral opinion. Based on our review of the record and applicable law, we are satisfied that the judge performed the appropriate analysis and acted well within his discretion. We find that there are substantial credible facts in the record to support the trial court's findings and that the sixty percent remission was fair, equitable, and consistent with the Guidelines.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION