State v. Rice
| Decision Date | 24 November 1975 |
| Citation | 137 N.J.Super. 593,350 A.2d 95 |
| Parties | STATE of New Jersey, Plaintiff, v. Lumas A. RICE, Defendant. (Criminal), New Jersey |
| Court | New Jersey County Court |
Jack Gold, East Orange, for movant International Fidelity Ins. Co. (Gold & Macri, East Orange, attorneys).
Richard Cignarella, East Orange, for the County of Essex (Francis P. McQuade, Essex County Counsel, Maplewood, attorney).
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, 305 A.2d 410 (1973).
The facts are not in dispute. Lumas Rice was arrested and charged with violation of the Controlled Dangerous Substance Act, N.J.S.A. 24:21--20, on December 3, 1971. Pursuant to R. 3:26--4(a) Rice was admitted to bail in the amount of $500 upon a recognizance with Rice as principal and movant International Fidelity Insurance Company as surety. On June 12, 1972 an indictment was returned against Rice and after entry of a plea of 'not guilty' the bail previously posted was continued.
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 exceed three years' pursuant to N.J.S.A. 24:21--27(a).
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 violated 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 N.J.S.A. 24:21--27(b). Bail was ordered forfeited when Rice failed to appear for the trial. R. 3:26--6(a). Rice has not yet been apprehended.
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 by the court (popularly known as 'first offender' treatment) under the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21--1 Et seq., , N.J.S.A. 24:21--27, thus entitling it to a discharge or an exoneration.
The County of Essex opposes 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. R. 3:26--6(a).
Bail proceedings in this State are regulated primarily by the New Jersey rules of court. R. 3:26--4(a) requires that * * *' (Emphasis supplied). Paragraph (e) of R. 3:26--4 suggests that 'any recognizance shall be discharged by court order upon proof of compliance with the conditions thereof or by reason of the judgment in any matter.' Finally, R. 3:26--7 provides for exoneration of obligors and a release of bail 'where the condition of the recognizance has been satisfied,' or 'by a timely surrender of the defendant into custody.'
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 of 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 period 'not to exceed three years' constituted such a 'final determination' of the cause or matter, entitling the surety to exoneration under R. 3:26--7 or a discharge pursuant to R. 3:26--4(e).
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 proceedings 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. N.J.S.A. 24:21--27(b). Hence, successful completion of supervisory treatment further requires a formal 'dismissal' of the still pending criminal proceeding, while violation thereof requires the court to 'resume proceedings' from the point of suspension. Id.
In this State a person admitted to bail must, together with his surety, execute a 'recognizance,' R. 3:26--4(a), or 'recognizance of bail,' N.J.S.A. 2A:162--1 Et seq., in the amount set as bail. 1 The recognizance is the basic obligation of record required as a condition of allowing the posting of bail. R. 3:26--4(a). In criminal proceedings such a recognizance of bail is an obligation of record entered into before a person authorized to take bail, conditioned upon the appearance of the accused at all stages of the proceedings until final determination of the matter. R. 3:26--4(a); 8 Am.Jur.2d, Bail and Recognizance, § 2 at 782; 8 C.J.S. Bail §§ 2c at 6; 29c at 55. The term 'bail bond' and 'surety bond' are often erroneously used interchangeably to describe a 'recognizance of bail.' Cf. R. 1:13--3. The actual differences in these instruments may become important in some circumstances. 8 Am.Jur.2d, Bail and Recognizance, § 2 at 782--783; 8 C.J.S. Bail § 29d at 55--56.
The recognizance posted in satisfaction of the amount of bail required may take several forms but must contain certain specific provisions. R. 1:13--3(b); R. 3:26--4(a). If 'no security need be required,' the accused may, by execution of a recognizance, simply obligate himself to pay the set amount upon default. R. 3:26--1(a). This procedure is commonly referred to as 'R.O.R.' or 'Released on Own Recognizance.' The recognizance may be executed by the accused jointly with another individual or individuals, with the latters acting as surety-obligors. R. 3:26--4(a).
Cash or real estate may be tendered as security for the amount required, with the owner thereof as surety and the accused jointly executing the recognizance. N.J.S.A. 2A:162--1; R. 1:13--3(c), 3:26--4, 5. Both the New Jersey statutes, N.J.S.A. 2A:162--1, Et seq. and N.J.S.A. 47:1--1, and the New Jersey rules of court, R. 3:26--4(c), (f), specify procedures for posting this type of security.
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. N.J.S.A. 1:1--2.2; R. 3:26--4(a). Strict limitations are imposed on sureties other than 'approved corporate sureties.' R. 3:26--4, 5.
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, 164 A.2d 740 (1960); State v. Tucker, 101 N.J.Super. 380, 382, 244 A.2d 353 (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 same time keep the accused constructively in the custody of the court while the charge is pending. 8 Am.Jur.2d, Bail & Recognizance, § 4; 8 C.J.S. Bail § 31.
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, 174 A.2d 209 (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, 216 A.2d 231 (App.Div.1966); U.S. Pipe & Foundry Co. v. American Arbitration Ass'n, 67 N.J.Super. 384, 393, 170 A.2d 505 (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 Insurance 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 simply a construction of the explicit phrase, 'until final determination,' contained in the recognizance of bail. R. 3:26--4(a). If the suspension of proceedings under the Controlled Dangerous Substances Act does constitute a 'final...
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