4. Cash Deposit, R. 3:26-4(f ).
State v. Recanati, 318 N.J. Super. 569 (App. Div.
1999) (discussing request for remission of cash bail
deposit to person other than defendant when terms of
recognizance have been fulfilled); State v. Giordano, 283
N.J. Super. 323, 328-29 (App. Div. 1995) (unless bail
agreement states otherwise, bail cannot be used to satisfy
a defendant’s restitution obligation without consent of
third party who posted bail).
E. Crimes Punishable By Death. R. 3:26-1(a).
1. Prior Case Law
The New Jersey Constitution authorizes denial of
bail in murder cases where proof is evident or the
presumption great. This is satisfied where the
application discloses a fair likelihood that the defendant
is in danger of a first degree murder verdict. State v.
Konigsberg, 33 N.J. 367 (1960), modified as to the
admissibility of hearsay evidence in capital bail hearing,
State v. Engel, 99 N.J. 453 (1985). At a capital bail
hearing the burden is on the State to demonstrate that
there is a fair likelihood that the defendant is in danger of
a first degree murder verdict, but that does not mean that
the issue before the court is guilt or innocence. State v.
Obstein, 52 N.J. 516, 521-522 (1968), modified as to
the admissibility of hearsay in a capital bail hearing, State
v. Engel, 99 N.J. 453 (1985).
2. Title 2A Death Penalty Overturned
In State v. Funicello, 60 N.J. 60 (1972), cert. denied,
408 U.S. 942, 98 S.Ct. 2849, 33 L.Ed.2d 766 (1972),
the New Jersey Supreme Court declared the death
penalty unconstitutional for first degree murder in
N.J.S.A. 2A:113-1, thus making it no longer a capital
offense. With elimination of death penalty, first degree
murder was no longer a capital offense, and a defendant
indicated for murder was entitled to bail on the same
terms as any other defendant. State v. Johnson, 61 N.J.
351 (1972).
3. Legislative Re-enactment of the Death Penalty in Title 2C.
In 1982, the death penalty was reinstated by the
Legislature. N.J.S.A. 2C:11-3c(1). R. 3:26-1(a) also was
amended on September 28, 1982, to substitute the
phrase “capital offenses” with “crimes punishable by
death” to comply with State v. Johnson, supra. Currently,
a person charged with a crime punishable by death is not
entitled to bail where the “prosecutor presents proof that
there is a likelihood of conviction and reasonable grounds
to believe that the death penalty may be imposed.” R.
3:26-1(a).4. Evidence Admissible at Capital Bail Hearing
In a bail hearing in a case of capital murder, hearsay
evidence, in the form of a codefendant’s confession, may
be considered in determining whether the State has met
its burden to demonstrate that the defendant should be
denied bail. State v. Engel, 99 N.J. 453 (1985). The State
is required to show that a codefendant’s confession is the
most probative evidence available and that it is
sufficiently trustworthy. The prosecutor must also
demonstrate that the substance of the codefendant’s
confession will be admissible at trial. Id.F. Detention Without Bail for Persons Under Probation
or Suspended Sentence for Another Offense.1. N.J.S.A. 2C:45-3a(3) provides:
a. At any time before the discharge of the defendant
or the termination of the period of suspension or
probation:....(3) The court, if there is probable cause to believe
that defendant has committed another offense or if he has
been held to answer therefor, may commit him without
bail, pending a determination of the charge by the court
having jurisdiction thereof.2. Standard
The constitutional provision for bail explicitly
applies only to bail “before conviction.” N.J.S.A. 2C:45-
3a(3) is not mandatory but permits a court, in its
discretion, to withhold bail. State v. Garcia, 193 N.J.
Super. 334, 339 (App. Div. 1984).G. Forfeiture of Bail
1. R. 3:26-6(b) provides
that “[t]he court may direct that a forfeiture be set
aside if its enforcement is not required in the interest of
justice upon such conditions as it imposes.” See State v.
Peace, 63 N.J. 127 (1973); State v. Mieles, 199 N.J. Super.
29, 41-42 (App. Div.), certif. denied, 101 N.J. 265
(1985). The factors for the trial court to consider in
determining whether forfeiture should be remitted in
whole or in part are listed in State v. Hyers, 122 N.J. Super.