State v. RiceState v. Rice
- Reporters:
- ,
- Before:
- Scalera
This is a civil action arising on motion of the surety on a recognizance of bail to vacate a forfeiture of the bail posted in the captioned criminal matter and to order an exoneration of the surety. R. 3:26-7; 1:13-3(b). Cf. State v. Peace, 63 N.J. 127 (1973).
The facts are not in dispute. Lumаs Rice was arrested and charged with violation of the Controlled Dangerous Substance Act,
The matter was assigned to the trial list and eventually, on March 14, 1973, the trial judge suspended further proceedings and placed Rice under “supervisory treatment” of the county probation department for a term “not to excеed three years” pursuant to
On December 6, 1973 the judge issued a bench warrant for Rice for a “violation of probation” (the precise reasons for which are not discernable from the records). On February 26, 1975 the probation department notified the judge that Rice had absconded and had violаted the terms and conditions of supervisory treatment, requesting that the judge terminate supervisory treatment. An order to that effect was entered and the suspended proceedings were resumed pursuant to
The surety now seeks to have this court set aside the forfeiture, contending that the conditions of the recognizance were satisfied at the time Rice was granted supervisory treatment
The County of Essex оpposes the surety‘s application, asserting that the failure of Rice to appear for trial as required by the judge after violation of the order of supervisory treatment constitutes a breach of the conditions of the surety‘s recognizance.
Bail proceedings in this State are regulatеd primarily by the New Jersey Rules of Court.
The recognizance herein specifically provided that Lumas Rice, as principal, and International Fidelity Insurance Company, as surety, did
* * * acknowledge themselves to be indebted to the State of New Jersey in the sum of Five Hundred Dollars * * * if default be made in the condition following, to wit:
Whereas, the principal has been bound over to await final determination of the cause * * * The Condition of This Recognizance is such that if the said principal shall appear at all stages of the proceedings until final determination оf the cause, unless otherwise ordered by the Court, then this recognizance to be void, otherwise to remain in full force and virtue.
The surety contends that the order suspending the criminal proceedings and placing Rice on supervisory treatment for a
The county argues that a “final determination” in a criminal matter is not reached until entry of a judgment of acquittal, conviction, dismissal or other similar final disposition. It asserts that the statutory suspension of prоceedings here involved is interlocutory in both form and substance; that the statutory provision by its terms mandates further court action before “final determination of the matter” is reached.
In this State a person admitted to bail must, together with his surety, execute a “recognizance,”
Cash or real estate may be tendered as security for the amount required, with the owner thereof as surety and thе accused jointly executing the recognizance.
Lastly, a so-called “bail bond” or “surety bond” will be allowed to satisfy the amount of bail. Actually, this terminology is misleading. There is no independent bail bond or surety bond posted in actual practice. In these instances an “approved corporate surety” and the accused jointly execute the same basic recognizance of bail. The distinction lies in the qualifications of the surety, for here it involves an “approved corporate surety,” i.e., one approved by the Commissioner of Insurance to engage in such business.
Obviously, the purpose of bail is to secure the release of the accused from imprisonment pending disposition of the charge and to assure his presence in court when lawfully required in connection with that charge. State v. Konigsberg, 33 N.J. 367, 372-373 (1960); State v. Tucker, 101 N.J. Super. 380, 382 (Law Div. 1968); 8 Am. Jur.2d, Bail & Recognizance, § 4 at 784; 8 C.J.S. Bail § 30. Its effect is to transfer custody to his “bail” and at the
The recognizance of bail constitutes a contract, and where executed by a surety amounts to a contract between that surety and the State. State v. Gonzalez, 69 N.J. Super. 283, 291 (App. Div. 1961); 8 Am. Jur.2d, Bail & Recognizance, § 59. As such, the traditional rules of contract law are applicable. The recognizance must be construed according to its express terms. The plain meaning may not be modified where no ambiguity exists. 8 Am. Jur.2d, Bail & Recognizance, § 59; 8 C.J.S. Bail § 62; Cf. Midland Carpet Corp. v. Franklin Assoc. Prop., 90 N.J. Super. 42, 46 (App. Div. 1966); U.S. Pipe & Foundry Co. v. American Arbitration Ass‘n, 67 N.J. Super. 384, 393 (App. Div. 1961); Commonwealth v. Hill, 180 Pa. Super. 430, 119 A.2d 572, 573 (Super. Ct. 1956).
In the instant case, upon the initial arrest of Rice for a violation of the Controlled Dangerous Substances Act, the bail, International Fidelity Insurancе Company, removed “custody” of the accused from the State upon a promise that it would secure his appearance “at all stages of the proceedings until final determination” of that charge and in default thereof pay the acknowledged sum of $500 to the State.
Thus viewed the issue is simрly a construction of the explicit phrase, “until final determination,” contained in the recognizance of bail.
There are conflicting views in the various jurisdictions, of what constitutes such a “final determination” in a criminal matter, some turning upon the particular terminology employed in the written obligation, others upоn relevant
Plainly, where the criminal charge is finally determined by an acquittal and the defendant necessarily discharged, the surety is exonerated. Where the criminal cause is subject to a dismissal or order quashing the indictment, the authorities are not in agreement, and again the particular language of the bail document under review is often determinative. 8 Am. Jur.2d, Bail & Recognizance, § 137; 8 C.J.S. Bail § 79 at 218-219. Compare the cases cited in Annotation, “Dismissal or vacation of indictment as terminаting liability or obligation of surety on bail bond,” 18 A.L.R.3d 1354 (1968).
This jurisdiction has, in the past, demonstrated a tendency to hold a cognizor to his obligation until all likelihood of further prosecution has passed.2 Hence, in State v. Hancock, 54 N.J.L. 393 (Sup. Ct. 1892), the court refused to discharge the surety where the original indictment was quashed and another indictment was returned charging а similar offense based upon the facts underlying the first indictment. That court held that “final determination” in a recognizance was not reached when the indictment had been quashed but rather that such a provision requires an ultimate disposal of the entire controversy originally at issue.
* * * the cessation of the criminal proceeding in a certain form leaving a potentiality of its further prosecution in a different method does not ipso facto discharge a defendant from the obligation of his recognizance. [at 431; emphasis supplied]
Supervisory treatment under the C.D.S. Act, not unlike a diversionary program (
Delays in dispositions of criminal cases are not uncommon, especially in recent years. A surety is or should be aware that his obligation on the recognizance will remain active during the entire time period required to finally dispose of a charge against the principal. The mandated form of recognizance expressly so provides without any suggestion of a time limitation, and the absence of ambiguity permits of no judicial construction to suggest such. Nevertheless, the surety is not without available relief. If, after entering into the contract of recognizance, a surety desires to terminate or limit the obligation, both the rules of cоurt and the terms of the recognizance provide that a surety may apply to the court for such an order or tender a timely surrender of the defendant into custody. Upon such application a court may entertain and resolve whether to exonerate the surety and, if so, upon what terms or conditions, if any. R.
Generally, where a defendant pleads guilty or is convicted, a recognizance conditioned upon his appearance until final determination is uniformly construed to remаin in effect at least until he is sentenced and custody of the accused actually passes to a proper officer of the law. 8 Am. Jur.2d, Bail & Recognizance, § 105; 8 C.J.S. Bail § 82c(6) at 233. These authorities reason that the initial consideration of transfer of custody to the surety has now been removed and thus discharges the surety. Id.; cf. State v. Gonzalez, 69 N.J. Super. 283, 288 (App. Div. 1961).
In light of this settled viеw and its relationship to the concept of pretrial diversionary programs, it becomes apparent that any such proceeding short of the conviction or acquittal stage does not operate to discharge a surety, absent a specific order of the court or a proper surrender of the defendant into custody.
Not at issuе here is whether after conviction, imposition of a suspended sentence, suspension of execution of a sentence or a term of probation would operate to discharge a surety. Moreover, the question of whether a new recognizance is required pending appeal of a final judgment of conviction and sentence is not here considered.
We are cognizant that there is authority to support an argument that any action by the court or the State which increases the risk of the surety will result in an exoneration. See 8 C.J.S. Bail § 78 at 214. This position can be sustained by the basic theory that where such action extends the time for “final determination” indefinitely, it unilaterally
In light of the foregoing, the motion for discharge or exoneration is denied. Further, since the principal has not yet been apprehended, the court is unable to fairly determine at this time whether any remission of the forfeiture is warranted pursuant to