177, 180 (App. Div. 1973). “Final determination”
releasing surety of contractual obligation to state does not
occur until dismissal on merits, acquittal, or sentence
after conviction. R. 3:26-4(a); State v. Ryu, 259 N.J.
Super. 87 (Law Div. 1992)
2. Burden of Proof
“The party seeking to set aside or remit a forfeiture
bears the burden of proving that ‘it would be inequitable
to insist upon forfeiture and that forfeiture is not required
in the public interest.’” State v. Mercado, 329 N.J. Super.
265, 269-70 (App. Div. 2000) (quoting State v. Childs,
208 N.J. Super. 61 (App. Div.), certif. denied. 104 N.J.
430 (1986)).
3. Standard of Review
The determination whether to relieve a bond obligor
of a forfeiture lies within the sound discretion of the trial
court.
Peace, 63 N.J. at 129; Mercado, 329 N.J. Super. at
270; State v. Poon, 244 N.J. Super. 86, 97 (App. Div.
1990); R. 3:26-6.
In State v. Childs, 208 N.J. Super. 61 (App. Div.
1986), certif. denied, 104 N.J. 430 (1986), defendant,
although having failed to appear for trial on several
designated occasions, appealed from the trial court’s
denial of his motion to vacate the forfeiture of $15,000
bail posted by his mother to secure his release pending
trial. In affirming the trial court’s denial, the Appellate
Division after weighing the factors set forth in State v.
Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), held
“[t]hat defendant’s mother was not a commercial
bondsman did not relieve her of her supervisory
responsibility over defendant during his release or her
obligation to have aided the police in his apprehension
and return to custody.” Based upon a consideration of
the Hyers factors, as well as the intangible element of
injury to the public interest, the trial court was justified
in concluding that enforcement of forfeiture was required
in the interest of justice.
II. BAIL PENDING APPEAL
A. Rules of Court Governing
1. Procedure To Be Followed
The procedure to be followed for bail pending appeal
is governed by R. 2:5-1(a) which provides in pertinent
part: “In criminal matters when bail pending appeal is
sought, the party seeking bail shall present to the
sentencing judge a copy of the notice of appeal with a
certification thereon that the original has been filed with
the appellate court.”2. Standards To Be Followed
The standard to be applied in an Application for Bail
Pending Appeal is set forth in R. 2:9-4 which provides in
pertinent part: “the defendant in criminal actions shall be
admitted to bail... only if it appears that the case involves
a substantial question that should be determined by the
appellate court, and that the safety of any person or of the
community will not be seriously threatened if the
defendant remains on bail and that there is no significant
risk of defendant’s flight.”In no cases, however, shall a defendant who received
a death sentence be admitted bail. R. 2:9-4.3. Burden of Proof
R. 2:9-4 expressly places the burden on defendant to
demonstrate that the case involves a substantial question
and that safety of the community or any person will not
be seriously threatened. In Re Manna, 124 N.J. Super.
428, 434 (App. Div.), certif. denied, 64 N.J. 158 (1973).
See Truong Dinh Hung v. United States, 439 U.S. 1326,
99 S.Ct. 16, 58 L.Ed.2d 33 (1978).4. Stay of Sentence
R. 2:9-3(b) provides that a sentence of imprisonment
“shall not be stayed by the taking of an appeal or by the
filing of a notice of petition for certification, but the
defendant may be admitted to bail as provided in R. 2:9-
4.”In State v. Sanders, 107 N.J. 609 (1987), the Court,
reversing 212 N.J. Super. 599 (App. Div. 1986), held
that the right of appeal provided to the State by N.J.S.A.
2C:44-1f(2) does not violate the Fifth Amendment’s
Double Jeopardy clause, despite the fact that a defendant
may remain incarcerated for up to ten days while the State