STATE OF NEW JERSEY VS. TARA BLAIR STATE OF NEW JERSEY VS. FRANK PARISI(13-11-2976 AND 14-10-2824, OCEAN COUNTY AND STATEWIDE)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 22, 2017
• Docket: A-5330-14T1, A-5331-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5330-14T1 A-5331-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TARA BLAIR and RAPID RELEASE1 BAIL BONDS,

Defendants,

and

FINANCIAL CASUALTY & SURETY,

Defendant-Appellant. _______________________________

FRANK PARISI and RAPID RELEASE BAIL BONDS,

1 Rapid Release Bail Bonds was dismissed from both appeals without prejudice because it filed for bankruptcy. and

BANKERS INSURANCE COMPANY,

Defendant-Appellant.

_______________________________

Submitted December 13, 2016 – Decided May 22, 2017

Before Judges Suter and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 13-11-2976 and 14-10-2824.

Richard R. Capone, attorney for appellants Financial Casualty & Surety and Bankers Insurance Company.

Berry, Sahradnik, Kotzas & Benson, P.C., attorneys for respondent (Mathew B. Thompson, on the briefs).

PER CURIAM

In State v. Tara Blair, No. A-5330-14, defendant Financial

Casualty & Surety (Financial) appeals a July 8, 2015 order, which

required Financial to pay $1000 of the $10,000 bail bond it issued

for defendant Tara Blair (Blair). In State v. Parisi, No. A-5331-

14, defendant Bankers Insurance Company (Bankers) appeals an order

of July 8, 2015, which required it to pay $1000 of the $2500 bond

2 A-5330-14T1 it issued for defendant Frank Parisi (Parisi).2 We affirm both

orders.

I.

A.

In 2013, following Blair's arrest, Financial posted a $10,000

bail recognizance bond, as corporate surety, through defendant

Rapid Release Bail Bonds (Rapid Release). When Blair did not

appear in court on February 24, 2015, as required, a bench warrant

was issued for her arrest and bail was forfeited. Notice of the

forfeiture was received by Financial on March 7, 2015. Thirty-

five days after her failure to appear, Blair was arrested by local

law enforcement authorities.

Financial filed a motion to remit the bail bond forfeiture

and for exoneration. It contended that remission on the bond

should be "substantial," suggesting a payment of "around $500,"

which would be a ninety-five percent remission. Financial alleged

that Rapid Release had maintained close supervision of Blair from

2013. Its records documented twenty-three contacts with Blair

prior to her failure to appear in February 2015, and she had

"checked-in" three additional times. When it became aware of

Blair's non-appearance, Rapid Release spoke with her once about

2 We have consolidated these back-to-back appeals solely for purposes of this opinion.

3 A-5330-14T1 trying to reinstate the bond, left her a message once, and hired

a bounty hunter, who "went out" to Blair's house four times and

to her mother's.3 Blair called Rapid Response once. The State

contended these efforts were not "effective" or "substantial"

enough to warrant a ninety-five percent remission of the bail

amount.

The trial court found that although there had been

"substantial supervision" of Blair while she was out on bail, once

she failed to appear in court, there were "minimal efforts to

recapture" her and that "local law enforcement was able to do what

the [s]urety wasn't able to do." On July 8, 2015, the trial court

ordered Financial to pay $1000 to be "distributed proportionally

between the State . . . and the County of Ocean."4 Then, upon

payment, the bail forfeiture "shall be vacated and the bond

discharged." Thus, the court ordered a ninety percent remission

of the bail amount instead of the requested ninety-five percent

remission.

Financial appealed the July 8, 2015 order, contending the

court erred by not considering the "effectiveness" of its initial

efforts to capture Blair or the short amount of time that Blair

3 There was one additional contact on March 4, but this was before notice was received about the non-appearance. 4 The order mistakenly references Bankers instead of Financial.

4 A-5330-14T1 was a fugitive from justice. The trial court stayed payment of

the forfeited amount pending appeal.

B.

On December 31, 2014, Bankers posted a $2500 bail bond,

through Rapid Release, for Parisi. When Parisi failed to appear

on February 24, 2015 at a pre-arraignment conference, a bench

warrant was issued for his arrest and his bail was forfeited. Up

to this point, Rapid Release had called Parisi only one time,

although Parisi also had "checked in," according to Rapid Release's

log, on three occasions.

Notice of the forfeiture was received by Bankers on March 1,

2015. Bankers called Parisi twice and left a message. It hired

a bounty hunter, who on three occasions tried to locate Parisi at

home or through the bond's co-signer. Parisi returned Bankers

call on March 18 and 24 to advise he would not be appearing in

court and taunted that they would not be able to locate him. The

bounty hunter made only one more visit to Parisi's home and the

co-signer on the bond, and left one phone message for Parisi.

Parisi was arrested by local law enforcement officers on April 3,

2015.

Bankers filed a motion to remit the forfeiture. The trial

court ordered that "there should be substantial remission, 40

percent, therefore the State should be paid a thousand dollars to

5 A-5330-14T1 reimburse them for their cost." The July 8, 2015 order required

a $1000 payment by Bankers. Bankers appeals that order, alleging

the court abused its discretion by not giving adequate

consideration to its efforts or the short period of time that

Parisi was at large.

II.

We review these appeals under an abuse of discretion standard.

"Where our review of the record 'leaves us with the definite

conviction that the judge went so wide of the mark that a mistake

must have been made,' we may 'appraise the record as if we were

deciding the matter at inception and make our own findings and

conclusions.'" C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc.,

233 N.J. Super. 65, 69 (App. Div.) (quoting Pioneer Nat'l Title

Ins. Co. v. Lucas, 155 N.J. Super. 332, 338 (App. Div.), aff’d,

78 N.J. 320 (1978)), certif. denied, 117 N.J. 165 (1989).

When these cases were decided, release of a criminal defendant

was based upon satisfying the amount of bail that had been set by

the court.5 R. 3:26-1(a). The purpose of bail is to "ensure [the

defendant's] presence in court when required." State v. Ventura,

196 N.J. 203, 212 (2008) (quoting R. 3:26-1(a)). Under the

5 Both of these cases arose prior to the new Bail Reform Act, N.J.S.A. 2A:162-15 to -26, where currently the court's decision to detain an individual following arrest, or to release based on conditions, is guided by new statutory standards.

6 A-5330-14T1 "recognizance" signed by a criminal defendant, "appearance at all

stages of the proceedings" is required and should the defendant

fail to appear, bail is forfeited by the court "on its own motion."

Ibid. (quoting R. 3:26-4(a); R. 3:26-6(a)).

Forfeiture of bail can be vacated "in whole or in part, if

its enforcement is not required in the interest of justice upon

such conditions as [the court] imposes." Id. at 213 (alteration

in original) (quoting R. 3:26-6(b)). The amount of the remission

is left to the sound discretion of the court. See State v. Peace,

63 N.J. 127, 129 (1973); State v. Ruccatano, 388 N.J. Super. 620,

627 (App. Div. 2006); State v. de la Hoya, 359 N.J. Super. 194,

198 (App. Div. 2003); State v. Mercado, 329 N.J. Super. 265, 271

(App. Div. 2000); State v. Hyers, 122 N.J. Super. 177, 180 (App.

Div. 1973).

"[T]he Administrative Office of the Courts [also] has

developed Guidelines to assist in bail remission proceedings."

Ventura, supra, 196 N.J. at 215. See Supplement to Directive #

13-04, Bail-Further Revised Remittitur Guidelines (Nov. 12, 2008)

[hereinafter Guidelines]. The Guidelines consider whether the

criminal defendant is a fugitive at the time the remission motion

is made, whether a new crime has been committed in the interim and

the amount of time while at-large, and they make recommendations

about the percentage of bail to be remitted. See ibid.

7 A-5330-14T1 The burden of proving that remission of the bail forfeiture

is necessary rests with the corporate surety. Mercado, supra, 329

N.J. Super. at 269-70 (citing State v. Childs, 208 N.J. Super. 61,

64 (App. Div.), certif. denied, 104 N.J. 430 (1986)). "[T]he

decision to remit bail is fact-driven and involves the

consideration of a multitude of factors." Ventura, supra, 196

N.J. at 218.6

6 These include,

1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant.

2. Whether the applicant is a commercial bondsman.

3. The surety's supervision of the defendant while he or she was released on bail.

4. The length of time the defendant is a fugitive.

5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's nonappearance, recapture and enforcement of the forfeiture.

6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.

8 A-5330-14T1 We have held that "[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."

Mercado, supra, 329 N.J. Super. at 270 (alteration in original)

(quoting Peace, supra, 63 N.J. at 129). However, there are also

policy concerns about providing an incentive to the surety to

"take active and reasonable steps to recapture a fugitive

defendant" without discouraging "their willingness to post bail."

Guidelines, supra, at 1. Nevertheless, "the surety is obligated

to locate, apprehend and return the defendant to custody."

Mercado, supra, 329 N.J. Super. at 271 (citation omitted).

III.

We discern no abuse of discretion by the trial judge in

granting Financial a ninety percent remission of the forfeited

bail, rather than the requested ninety-five percent. Under the

Guidelines, where a defendant is not a fugitive, did not commit a

7. The defendant's commission of another crime while a fugitive.

8. The amount of the posted bail. In determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its amount.

[Ruccatano, supra, 388 N.J. Super. at 624.]

9 A-5330-14T1 new crime while a fugitive, and the period when the defendant was

at large was less than six months, all facts that apply in the

case of Blair, the Guidelines contemplate a seventy-five percent

remission of the forfeited bail if the surety provided "close

supervision" of the defendant, but did not engage in "immediate

substantial efforts" to recapture the defendant. Guidelines,

supra, at 7. However, where there also is immediate substantial

effort to recapture the defendant, the remission contemplated

under the Guidelines is ninety-five percent. Ibid.

"[T]he decision to remit and the amount of the remission lies

within the equitable discretion of the court to be exercised in

the public interest." de la Hoya, supra, 359 N.J. Super. at 198

(citations omitted). "[T]he Guidelines were only intended to

provide 'a starting point when determining whether to grant a

remission, and, if so, the amount to remit.' The facts of a

particular case 'will determine whether the amount to remit is

increased or decreased.' Thus, flexibility, rather than rigidity,

is the governing principle." Ruccantano, supra, 388 N.J. Super.

at 627 (quoting Directive # 13-04, Remittitur Guidelines–

Attachment F, at 2 (Nov. 17, 2004)).

The judge found that Financial had made reasonable efforts

at supervision during the period when Blair was released on bail,

but did not make immediate substantial efforts at recapture. From

10 A-5330-14T1 the time that Financial was notified of the forfeiture, it hired

a bounty hunter, made two calls and received a call from Blair.

The call to Blair on March 8 and from Blair on March 16, both of

which were after Financial was aware of the forfeiture, did not

result in her recapture or surrender because Financial was

"pursuing an administrative solution first" by trying to have the

bail reinstated.

Financial does not explain whether this "solution" was

unsuccessful or when, or in light of this, what other efforts it

made to recapture Blair, aside from hiring the bounty hunter,

while it apparently remained in telephone contact with her.

Financial had the burden here. The judge considered these efforts,

and was aware of the time Blair had been at large. We simply

cannot say that the judge's exercise of discretion was "so wide

of the mark" in concluding not to remit an extra five percent on

a $10,000 bail as to require reversal, especially where Financial's

immediate efforts had as much or more to do with reinstatement of

the bail as with recapture.

Similarly, in the Parisi case, the trial court did not abuse

its discretion in remitting by sixty percent the forfeited bail

of $2500, and requiring a payment of $1000. Here, the record

supported a conclusion that Bankers provided only minimal

11 A-5330-14T1 supervision of defendant while out on bail. Although defendant

checked-in three times in ninety days, Rapid Release called but

once and left a message. Then after the bail was forfeited, it

hired a bounty hunter and made two calls. The call log shows that

by March 18, defendant had no intention of surrendering and yet

the bounty hunter went out only one more day and made one call to

the co-signer. Under the Guidelines, the remission could have

been substantially less as this record hardly supported "close

supervision" or "immediate substantial efforts to recapture."

We affirm both July 8, 2015 orders.

12 A-5330-14T1