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)

NOT FOR PUBLICATION WITHOUT THE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.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK PARISI and RAPID RELEASE
BAIL BONDS,
Defendants,
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.
A.
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.
B.
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