State of New Hampshire v. James Castine

This issue is preserved by the June 1, 2017 show cause hearing regarding bail forfeiture and in the trial court’s Order Regarding Bail Forfeiture (July 5, 2017) found at A.3. |

This issue is preserved in Surety’s Motion to Reconsider (July 31, 2017) found at

A.14-A.16.

RSA § 597:31 Declaration of Forfeiture

If any party recognized to appear makes default, the recognizance shall be declared forfeited, and the state may cause proceedings to be had immediately for the recovery of such forfeiture.

RSA § 597:33 Judgment The superior court may render judgment for the whole amount of any forfeited recognizance and

interest and costs, or for such part thereof as, after hearing counsel, the court may think proper, according to any special circumstances in evidence affecting the case or the party liable.

The Defendant in this matter, James Castine, has been charged with three counts of sale of heroin. On April 6, 2017, 2"! Chance Bail Bonds, the Appellant, posted a $10, 000 bond and the Defendant was released from jail. On April 24, 2017, the Court (Delker, J.) revoked the Defendant’s bail and scheduled a show cause hearing regarding forfeiture of the bail.

Said show cause hearing was held on June 1, 2017. The Appellant argued that it had only agreed to an appearance bond and that the Defendant had not failed to appear. The Court (Delker, J.), on July 5, 2017 ordered forfeiture of the full $10, 000 bond. The Appellant retained counsel and filed a Motion to Extend Time Limit on July 17, 2017. Said Motion was granted by the Court (Delker, J.). On July 31, 2017, the Appellant filed a Motion to Reconsider, which was denied by the Court (Delker, J.) on August 30, 2017. The Appellant commenced this appeal by Rule 7 Notice of Mandatory Appeal dated September 25, 2017. Finally, the Appellant filed a Motion to Stay Show Cause Hearing on September 27, 2017 while this appeal is pending. This

Motion was granted by the Court (Delker, J.) on October 17, 2017.

2" Chance Bail Bonds is a commercial bail bondsman located in Londonderry, New Hampshire. On April 6, 2017, it posted a $10, 000 bond for the Defendant, James Castine, who was subsequently released from jail (A.2). As part of the bond agreement, it is stated that “[a]uthority of such Attorney-in-Fact is limited to appearance bonds” and that “[t]he named agent is appointed only to execute the bond consistent with the terms of this power of attorney.” Said agreement is provided by American Surety Company, a national property & casualty company specializing in the writing of bail bonds through independent licensed bail bond agents.

The Defendant’s bail conditions, in addition to the standard conditions imposed on a criminal defendant, included that he not commit any new crimes while on release; that he notify the court immediately of any change in address, that he appear at all proceedings, that he live at a specific address in Epping, NH, and that he refrain from any use of alcohol and the use of controlled drugs (A.7).

On April 18, 2017, the Rockingham County Attorney’s Office filed a Motion to Issue Arrest Warrant based on the Defendant’s alleged violation of his bail conditions. The Defendant and his girlfriend were discovered passed out in a vehicle in a Wal-Mart parking lot in Sturbridge, Massachusetts by police. EMTs were called, who administered several doses of Narcan and were able to revive the Defendant and his girlfriend (A.2-A.3). The Defendant allegedly told the police that they were moving to the Carolinas from New Hampshire (A.3). Police searched the vehicle and discovered drugs (A.3). As such, the Defendant was arrested and later released by Massachusetts (A.3).

The Court, on April 19, 2017, granted the State’s Motion and a warrant was issued for the

Defendant’s arrest (A.3). The Defendant voluntarily turned himself in and was arrested on April

21, 2017 and appeared before the Court on April 24, 2017 where the Court revoked the Defendant’s bail (A.3). A show cause hearing regarding bail forfeiture was then held on June 1, 2017 (A.3). There, the pro se surety argued that, like the thousands of prior bond cases, it had only agreed to an appearance bond and that the Defendant had not failed to appear (A.3). The surety further argued that it had no real means to supervise other conditions, such as the Defendant’s use of illegal drugs, and should not be required to monitor such conditions (A.3).

The Court issued an order regarding bail forfeiture on June 30, 2017 and ordered that the entire $10, 000 bond be forfeited to the State (A.8). The Court found that the surety “took no steps whatsoever to supervise the defendant’s compliance with conditions” (A.4). In support of this finding, the Court performed a totality of the circumstances test (A.6). The Court stated that the surety signed the bond form which states that bail may be forfeited if the Defendant fails to comply with any conditions and that the bond was to secure compliance with all conditions (A.6).

The Court found that the Defendant expressly violated the conditions that he live at a specific address, refrain from using any controlled drugs, and commit no crimes while released (A.7). The pro se surety stated that it took no steps to monitor the Defendant’s drug use or require him to seek treatment because it had no power to force the Defendant to comply (A.7). The Court held that the surety has the power to surrender the Defendant to the Court if he failed to comply with the terms of the bail and rejected the surety’s argument (A.5). The Court further held that the surety had the power to require the Defendant to engage in specific activities to

ensure compliance but failed to do so (A.7-A.8).

The surety presents two arguments for the Court’s consideration. Initially, the surety argues that the Superior Court was incorrect when it found that the surety had agreed to monitor the Defendant’s compliance with all conditions of bail. The surety believed, based on normal and customary procedures, that it was only required to post an appearance bond and thus its duty was solely to monitor the Defendant’s compliance with respect to his appearance at all court dates. In this matter, the Defendant never failed to appear. Thus, the appearance bond cannot be forfeited While it is true that the surety did sign an agreement with the Court regarding all conditions, it has always been the practice that a surety is responsible for the Defendant’s appearance and the Court accepted the surety’s own form stating that it was responsible solely for appearance conditions.

The surety also asserts that forfeiture of the entire $10, 000 bond was excessive. The Superior Court has the ability to reduce the amount of forfeiture and is not required to order forfeiture of the entire bond. The amount forfeited does not bear any reasonable relation to the cost and inconvenience to the State. Forfeiture should not be used as a punitive tool and the amount forfeited in this matter was clearly used to punish the surety for its failure to ensure compliance with non-appearance conditions. Here the cost and inconvenience to the State was the drafting and execution of a warrant for the Defendant’s arrest. The Defendant voluntarily turned himself in once notified of the warrant. No state resources were expended and the Defendant missed no hearings.

The court, in determining the amount of forfeiture, utilized a non-exclusive and non- binding 9 factor test laid out by the New Jersey Supreme Court. As an initial matter, this has

never been the law of New Hampshire. No one, including the surety, has been put on notice that

they would be strictly liable for all of a defendant’s conduct. In utilizing this test, the Court placed too much focus on the fact that it found the surety did not take enough steps to ensure compliance and allegedly failed to earn its fee. The Court only had a short window of time to determine the surety’s efforts and gave no deference to what the surety would do throughout the pendency of the entire case to earn its fee. The remaining factors are not as determinative and tend to favor no forfeiture or a significantly reduced forfeiture. The New Jersey Supreme Court was clear that the factors it gave were not exclusive and the Court could consider other relevant factors. Here, the Court should have also considered the lack of notice to the parties as this test had no precedence. The Court should also have considered the chilling effect it would have on

sureties should they be strictly liable for any violation of a defendant’s bail conditions.

The Surety Agreed Solely to an Appearance Bond and the Defendant Did Not Fail to Appear

It is undisputed that the surety signed the bond form provided by the Superior Court. However, it has generally been the practice in New Hampshire courts that the surety is responsible for the Defendant’s appearance. The surety reasonable relied on the prior custom and practices. The surety also filed a bond agreement, signed by the Defendant, with the Court stating that it was ensuring solely the Defendant’s appearance. The Court accepted this agreement and never required a general bond. Less than three weeks later, the Defendant turned himself in on a warrant and bail was revoked. At this point, the surety lost the ability to supervise him and enforce compliance. Despite there being no appearances for the Defendant to miss, the entire appearance bond was forfeited and the surety ordered to pay.

In a rare case regarding bail forfeiture, the New Hampshire Supreme Court recognized that there is a distinction between performance and appearance bonds when it found that “the court's order makes clear that it forfeited the bonds because the defendant failed to appear, not because of his criminal activity. The bonds guaranteed the defendant's appearance, so this forfeiture was entirely appropriate.” State v. McGurk, 163 N.H. 584, 587 (2012). Further, New Hampshire RSA 597:31 provides that “[i]f any party reeognized to appear makes default, the recognizance shall be declared forfeited, and the state may cause proceedings to be had immediately for the recovery of such forfeiture.” (emphasis added). The statute makes no mention of non-appearance conditions. It is clear that the primary purpose is to ensure appearance. This is true in other jurisdictions as well. Although the rule adopted in New Jersey

allows for the imposition of conditions other than appearance, appearance conditions remain the

primary emphasis of the bail system. State v. Korecky, 777 A.2d 927, 929 (N.J. 2001). “The primary purpose of bail in a criminal case is not to increase the revenue of the state or to punish the surety but to insure the prompt and orderly administration of justice without unduly denying liberty to the accused whose guilt has not been proved.” Jn Re App., Shetsky For Return, Bail Mny, 239 Minn. 463, 471 (Minn. 1953). Similarly, Arizona Courts have held that “the commission of other crimes while released justified revocation of release but not forfeiture of the bond.” State v. Surety Ins. Co, 127 Ariz. 493, 496 (Ariz. Ct. App. 1981).

Here the Defendant never failed to appear. A warrant was issued and he turned himself in promptly. It cannot be said that the surety failed so as to order the forfeiture of the appearance bond.

Forfeiture of the Entire Bond is Excessive

In New Hampshire, the Superior Court has the authority upon default to remit, reduce, or change the forfeiture. 1-16 NH Practice Series: Criminal Practice & Procedure § 16.24 (2016). This is seen in New Hampshire RSA 597:33 where it is stated that the “court may render judgment for the whole amount of any forfeited recognizance and interest and costs, or for such part thereof as, after hearing counsel, the court may think proper.” Here the Superior Court ordered the entire $10, 000 appearance bond be forfeited to the State. In doing so, it utilized a non-binding and non-exclusive 9 factor list outlined by the New Jersey Supreme Court. Initially, this has never been the standard in New Hampshire and the surety was never on notice that it would be held to this standard. Nor was the surety aware that it could be held strictly liable for the Defendant’s actions. For the following reasons, forfeiture of the entire bond is excessive and

does not deter the Defendant’s actions.

Federal Courts have held “that forfeiture ought to bear some reasonable relation to the cost and inconvenience to the government of regaining custody and again preparing to go to trial.” United States v. Kirkman, 426 F 2d 747, 752 (4th Cir. N.C. May 26, 1970). Other jurisdictions also support this notion. Two of the nine factors considered by the Superior Court when analyzing whether to order forfeiture were “the appropriateness of the amount of the recognizance of bail” and “the cost, inconvenience, prejudice, or potential prejudice suffered by the State as a result of the breach.” Korecky, 777 A.2d at 934-35, The Vermont Supreme Court has stated that the “factors can be used only to determine the amount of forfeiture of bail, if any, appropriate to ensure that bail-bond sureties uphold their duties in good faith, and not as a punitive tool.” State v. Mottolese, 199 Vt. 470, 478 (Vt. June 12, 2015).

Kentucky Courts have held that “[a]lthough our statutes and rules permit forfeiture for breach of a nonappearance condition, the trial court's discretion is not unfettered and must be exercised by applying various factors.” Coomer v. Commonwealth, 2013 Ky. App. LEXIS 73 (Ky. Ct. App. May 3, 2013). This was seen where the 8" Circuit held that while there was “evidence the breach was willful, the expense, inconvenience and delay to the Government were minimal” such that “justice does not require forfeiture of $25, 000, and that all but $1, 000 should be remitted.” Appearance Bond Surety v. United States, 622 F.2d 334, 336 (3 Cir. 1980).

Here the decision to forfeit the entire $10, 000 bond bears no reasonable relation to the cost and inconvenience to the State. The Defendant was arrested in Massachusetts in April of 2017. The State applied for a warrant for the Defendant’s arrest, which was granted on April 21, 2017. The Defendant was in custody at his appearance before the Superior Court on April 24, 2017. While there is a cost and inconvenience to drafting and executing a warrant, it is certainly

not close to $10, 000. The decision of the Superior Court is punitive for the alleged “total and utter lack of effort” on the part of the surety and is excessive based on the facts of this case, especially in light of no prior precedence or warnings.

Further, when examining the amount forfeited under the other factors outlined by the New Jersey Supreme Court, it is clear that the decision to forfeit the entire bond is excessive. The New Jersey Supreme Court states:

“In cases involving a condition other than appearance, courts should consider (1) whether the applicant is a commercial bondsman; (2) the extent of the bondsman’s supervision of the defendant; (3) whether the defendant’s breach of the recognizance of bail conditions was willful; (4) any explanation or mitigating factors presented by the defendant; (5) the deterrence value of forfeiture; (6) the seriousness of the condition violated; (7) whether forfeiture will vindicate the “injury to public interest” suffered as a result of the breach; (8) the appropriateness of the amount of the recognizance of bail; (9) the cost, inconvenience, prejudice or potential prejudice suffered by the State as a result of the breach.” Korecky, 777 A.2d 934-35 (citations omitted).

The Court found it clear that the Defendant violated conditions that he live at a specific address, refrain from the use of controlled drugs, and not commit any new crimes while on release. The Court paid particular attention to the extent of supervision as it held that “Second Chance “made no effort to supervise defendant to ensure that he would comply with the [bail] provision” (A.21). The Court further held that there was “no evidence that Second Chance took any steps to evaluate the defendant’s risk level when it made the decision not to provide any supervision of him” (A.23).

The Court placed too much focus on the surety’s alleged lack of supervision and rendered a punitive decision. The Court only had the period from April 6, 2017 to April 18, 2017 to

evaluate this factor. It did not consider what the surety would have done to ensure the Defendant appeared for all hearings. The fee charged by the surety was based on supervision the surety was to perform for the life of the case and not a 12-day period. This is a significant mitigating factor that the Court overlooked.

The Court also put too much weight on the argument that forfeiture of the bond deters the conduct the Defendant is accused of. The Court did not explain why this factor weighed in favor of forfeiture of the entire bond. In its Order on the Surety’s Motion to Reconsider, it specifically stated that “it is unlikely that forfeiture of the bail will deter the defendant from continuing to use drugs, ” but that forfeiture would deter his attempts to move out of state (A.24). The Court further stated that “the issue in this case, is protection of both the defendant and the public” (A.24). However, it is the arrest and incarceration of the Defendant as a result of revocation that deters him from attempting to move out of state and would protect the defendant and the public (not forfeiture). Forfeiture has virtually no e effect on the Defendant’s conduct. Forfeiture also has a minimal effect on vindicating the injury to the public interest. The injury to the public interest is low in this case It is revocation of one’s bail leaving them locked up in a cage with no chance of release pre-trial while still cloaked in the presumption of innocence that vindicates any injuries to the public.

Ultimately, the cost, inconvenience, prejudice or potential prejudice suffered by the State is not commensurate with forfeiture of the entire bond. The State made a Motion for a warrant on April 18, 2017 that was granted the following day. The Defendant turned himself in and was arrested on April 21, 2017. He was in custody when he appeared in front of the Court on April 24, 2017. The Court, in its Order, concedes that the State suffered very little (A.24).

Finally, the Korecky court was clear that the factors outlined are not an exclusive list.

“The wholesale imposition of conditions regulating defendants' behavior could result in a dramatic increase in the cost of surety bonds. That in turn may impair the ability of defendants, particularly defendants without significant financial resources, to obtain bonds. Such a result would not only defeat the purpose of the bail bond, but would result in gross unfairness.” Korecky, 777 A.2d at 939. The Court should have also considered the precedence set by its order to forfeit the entire bond. If bail bondsmen were required to supervise defendants as stringently as the Court would require them to under its order, it is unlikely they would be able to stay in business. It is entirely possible that countless defendants would be instantly surrendered to the Court and subsequently sent to jail. With many defendants, it is simply too risky a gamble for bail bondsmen to be confident said defendants will comply with non-appearance conditions. While bail bondsmen have specific powers to help ensure compliance, those powers are not

unfettered and it is not cost-effective to have to constantly monitor each and every defendant.

Based on the foregoing, the Appellant, 2" Chance Bail Bonds, respectfully requests that this Honorable Court:

The Appellant requests no more than five (5) minutes for oral argument with a 3JX panel

to be presented by Joseph Prieto, Esq.

Undersigned counsel hereby certifies that the appealed decision is in writing, a copy of

which is appended to this brief.

I hereby certify that two (2) true and accurate copies of the foregoing Brief of Surety, 2"

Chance Bail Bonds, and Appendix thereto, have been forwarded by First Class United States

Mail to:

Officer of the Attorney General 33 Capitol Street Concord, NH 03301

Neal J. Reardon, Esq. Za ee Ee oe

Joseph Prieto

BRIEF APPENDIX TABLE OF CONTENTS Page

July 5, 2017 Order Regarding Bail Forfeiture................ ccc ecceeec nsec eens eters eteee eens Al-A8 July 17, 2017 Surety’s Motion to Extend Time Limit.............cecceeeeceeeeeeeen eee es A9-All July 31, 2017 Surety’s Motion to Reconsider...............cceceeec cece en eeesee ee eaeeeenes Al2-A17 August 3, 2017 Order on Motion to Extend Time Limit................cceeeeeeeeeneeeeees Al8 August 30, 2017 Order on Motion to Reconsider............ 00. cee ceee ee ee eect eee enenenens A19-A25 September 27, 2017 Surety’s Motion to Stay Show Cause Hearing................:0::05 A26-A27 October 17, 2017 Order on Motion to Stay Show Cause Hearing................:eeeeees A28

Rockingham Superior Court Telephone: 1-855-212-1234 Rockingham Cty Courthouse/PO Box 1258 TTY/TDD Relay: (800) 735-2964 Kingston NH 03848-1258. http:/Avww.courts.state.nh.us

File Copy Case Name: State v. James Castine

~"Case Number: 218-2017-CR-00308 435-2017-CR-00385

Enclosed please find a copy of the court’s order of June 30, 2017 relative to:

Order Regarding Bail Forfeiture

July 05, 2017 Maureen F. O'Neil Clerk of Court

(273) C: Rockingham County Attomey; Neil J. Reardon, ESQ; 2nd Chance Bail Bonds

Al

The State of Netw Hampshire Superior Court

Vv.

* . No. 218-2017-CR-0308

. The defendant was charged with three counts of Sale of Heroin in Circuit Court.

= The out eo | the amount of $10, 000 cash or corporate surety and

is: caring before bail was posted. After the matter was bound he defendant fi fi led. a request for.a source of funds hearing. The pri 6, 2017. At that hearing, this Court modified the

te ‘the requirement for a source of furids hearing before the

ng other conditions, the Court also required the

defendant tot ive ink pping, New Hampshire, notify the court of any change of address,

and to refrain from t the use of controlled drugs.

“That same day Second Chance Bail Bond posted a $10, 000 bond. The defendant was released from jail. Less than two weeks later the State filed an expedited mation for’ a ‘wairant based on the defendant's alleged breach of bail conditions. The

. police found the. defendant and his girlfriend passed out in a vehicle in the parking lot of . WalMart paring in Y Sturbridge, Massachusetts. The police believed that they were

‘overdosing so EMTS 1 were called. The medical personnel administered several doses of

. Narcan. ‘Both individuals were eventually revived. The defendant told the officer he and his giririend were ‘moving ‘rom New Hampshire to the Carolinas. The police observed that the bed of the defendant's truck was filled with suitcases and other belongings. A subsequent search of the’ vehicle revealed drugs and drug paraphemalia. The defendant and his girtiiend were arrested and released after booking. After their release, the police leamed that the defendant's girlfriend texted her sister that she was

now living i in ‘South: Carolina. The text message further Stated, “Don't give [the address]

to anyone!”

nformation, th this Court issued a warrant for the defendant's arrest ns, The w warrant required that the bail be forfeited but gave the io bic caciad why the bail should not be forfeited for the

l eonditions "The defendant was arrested and appeared

2 17. The Court revoked the defendant's bail based on the violations of ba bail conditions. A show cause heating regarding the bail forfeiture was

held on June’ 1 2107..

‘Second Change Bail B Bond appeared through Julie Carkhuff (the “Surety’). She argued that the Court should not forfeit the bail because the Surety had only agreed to an ‘appearance bond!” aia the defendant had not missed any court dates. She asserted that the Surety should not be required to monitor compliance with other bail conditions. ‘The Surety asserted it had no means to supervise the defendant's drug use or other conduct. For the following reasons, the Court finds that the Surety is incorrect

asa matter of law. “Moreover, based on n the circumstances the Court finds that the

Ad

Surety took no steps whatsoever to supervise the defendant's compliance with bail conditions. [Accordingly, the bond shall be forfeited.

In State Vv. Laniefsky, Rock. Cnty. Super. Ct., No. 218-2012-CR-0813, 2012 WL | 6813519 (Dec. 18, 2012) (Order, Delker, J.)s this Court issued a detailed order ruling that Gash bail can be set to ensure a defendant's compliance with bail conditions other than the defendant's appearance in court. The analysis of this order is incorporated fully herein. ‘The question presently before this Court is whether the corporate surety can be held responsible fot the defendant's failure to comply with conditions of bail other than appearance in court.

“Historically, the release ofa criminal defendant on:a bail bond had the effect of transferring custody to the. surety.” State v. Moccia, 120 N:H. 298, 302 (1980) (citing | Restatement (First) of. Security (1941)). As such, the surety i is responsible for the defendant's compliance with bail. conditions: upon release. The Restatement (First) of

Security: provides the folowing explanation a of f the connection between bail bonds, performance bonds, and recognizance: | |

: The Chapter: ‘ices ‘not contain any special treatment of surety obligations

~ on recognizance. as: distinguished from bail bonds, since the rules in

_ Tespect of sureties on bail bonds and recognizance are substantially the -Same‘even ina jurisdiction | in which both bail-bonds and recognizance are both used..:

reco nizanice | is. an ol bli ation in a penal sum of record, entered into

form: therein. A recognizance resembles a bail. bond and.is usually required for the same purpose, although: occasionally a recognizance is required in other than criminal - Cases: and for purposes having: hothing to:do with the appearance of a defendant. The recognizance is a conditional judgment. It acknowledges an existing debt and is entered on the court records, but is suspended so long as the principal does or does not do certain acts in accordance with

the orders of the court. The recognizance is usually by both. principal and

AY

si urety, if the court finds that the condition of ther recognizance is not _ fulfilled, since the recognizance is.a judgment the property of the “recognizor is subject to:levy without further action. A fecognizance, unlike a bail-bond, which is always taken pending adjudication of a case, may be _ taken at any time, even after final process. Instances of recognizances, other than to secure the appearance of. defendants i in criminal trials, include. those offered i in place of bonds to procure attachment.and of bonds to keep the | peace.

In some jurisdictions the distinction between recognizance and bail bonds has ceased fo exist and the terms are used interchangeably.

, Div. Hl, Ch. 9 Intro. ‘Note (1941) (emphasis added). This

passage. makes it: cleat that the bond or recognizance requires compliance with . conditions other than ‘appearance and applies to both the defendant and the surety.

lt the surety cannot fulfill its responsibility to monitor the defendant's compliance

~ vith bail’c co ditions, has the’ aitthority to surrender the defendant to the court or the

al See RSA: 597: 27, RSA 697: 28: see also o Restatement of Security § 204 cmt. b. AD corporate rit undertakes the promise that the defendant will comply with bail conditions i in exchange for the premium bail for the bond. ‘See State v. Korecky, 777

A. 2d 927, 934 w. J. 2001). Thus, “tthe driving force behind a surety’ s provision ofa bond.is the profit motive. " ‘id. if the defendant complies with bail conditions, the bond is released and the surety keeps the premium. Because the surety stands to profit from ‘its undertaking it must also assume the risk and associated liability if the defendant does; not comply with the. conditions of release.

- Under New Hampshire law the Court: may strike off a default of any condition of

| cee “or good cause” or “upon substantial compliance with the condition.”

RSA 597: 32, The Court may /also render judgment against the whole recognizance or

/ may order a lesser forfeiture.” according to any special circumstances in evidence ae |

affecting the case or the party liable.” RSA 597:33. The New Jersey Supreme Court “has outiied a non-exclusive list of factors courts may consider i in determine whether to order forfeiture based on a breach: of a bail condition:

in cases involving a condition other than appearance, ‘courts should consider: (1) whether the applicant is a commercial bondsman; (2) the -extentiof the: bondsman's supervision of the defendant; (3) whether the _ defendant's breach of the recognizance. of bail conditions was willful; (4) any explanation ‘or mitigating factors. presented by the defendant; (5) the deterrence Value of forfeiture: (6) the. ‘seriousness of the condition violated; (7):whether forfeiture will vindicate the “injuty to publi¢ interest” suffered as a result of the breach; (8) the appropriateness of the amount of the recognizance of bail; and (9) the cost, inconvenience, prejudice or ‘potential prejudice suffered by the State as a result of the breach.

Korecky, 7 A, 2d at 934-35. (citations omitted). | Turning to the facts of this case, iti is clear that Second Chance Bail Bond

; assumed responsi to monitor the defendant's bail conditions and not just to secure

; _ the bond form which states j in relevant part:

Corporate Stirety Bail Bond to secure: the defendant's compliance with Conditions of Bail written below...

4, “The defendant shall appear in this court to answer to this charge 8 lor FO BE DETERMINED.: _ 2. The defendant shall appear in any New Hampshire’ Court to answer this chargé when notified to report-to the:court. 3. The defendant immediately shall notify any New Hampshire Court .._ in'which'this ‘case is pending of any change of address. 4. The defendant shall Keep the peace and be of good behavior. 5. Other:.: a

If the defendant coiiplies with the Conditions « of Bail, this obligation shail be null and: void on final disposition of this: charge.

ith any condition(s) Cash Bail shall be forfeited to:the:State and execution may issue against the defendant for

Personal Recognizance. and against the corporate surety or surety. In addition, the court may order the arrest of the defendant.

(Doe. #5 (emphasis added), Thus, the express terms of the bond made it clear that breach of" any condition(s)" could result in proceedings against the corporate surety for forfeiture of the bord. At a minimum, Second Chance Bail Bond assumed responsibility to ensure that the. defendant to: not commit. any new crimes and notified the court inimediately of any change of address. _. | _ There appears to’be no dispute that the defendant failed to comply with at least two categories of bail conditions. With respect to his appearance for proceedings, the _ bail order required the defendant to live at a specific address in Epping, New Hampshire. He was s also required to immediately notify the court if he changed his address. There Ist no dispute that the defendant was headed to South Carolina to live with his mother. His truck was packed for the trip. This v was a plain violation of the bail condition that he remain living j in Epping.

“ Second, and more importantly, the bail order prohibited the defendant from using coritrolled drugs and required that he not commit any new crimes while on release. In the context of this case, these conditions were designed to protect the safety of the defendant. The defendant overdosed on drugs i ina Parking lot in Massachusetts. The EMTs had to use several doses of Narcan to revive him. Second Chance Bail Bond conceded that it took. no steps to monitor the defendant's drug use. it did not require him to seek éubstance abuse treatment. The Surety presented no evidence that it even informally supervised the defendant. | The Surety claimed it did ‘not have the power to force the defendant to.comply 7 with bail conditions. That claim is somewhat dubious because the Surety has the

statutory power to surrender: a defendant to a for failure to comply: with the terms of AT

~ bail. RSA 597: 38. tr may do: so in order to avoid liability on the bond if it is concerned about the defendant's compliance with bail conditions. See id. id. Even without police powers, as a matter of contract law the Surety has the ability to require the defendant to engage in. certain actions to monitor his compliance with bail conditions. For example, asa condition of posting the bail bond, the Sutety ould require the defendant to attend treatment, take drug tests, or submit to tiome visits. if the defendant refused or failed to comply with these terms, the Surety could request that it be released from its bond. Here, : Second Chance Bail Bond did nothing to supervise the defendant. As a-result,

: “Secoid ance & Bail Bond failed to fulfill its role as surety. ‘Accordingly, the $10, 000 bond shal be be Torfeited to the state,

sO ORDERED. Oe

Hele cme tt DATE Doe -.. -N. William Delker

Rockingham, ss. Superior Court

. v.

218-2017-CR-00308

NOW COMES the Surety, 2"! Chance Bail Bonds, by and through counsel, Joseph J. Prieto, and respectfully requests that this Honorable Court extend the time period which the Surety has to respond to the Court’s order dated July 5, 2017. In support thereof, the following is stated:

1. The Defendant has been charged with three counts of sale of heroin.

2. On April 6, 2017, 2™ Chance Bail Bonds posted a $10, 000 bond and the Defendant was released from jail.

3. On April 24, 2017, the Court revoked the Defendant’s bail. A show cause hearing regarding the bail forfeiture was held on June 1, 2017.

4. Julie Carkhuff appeared for 2 Chance Bail Bonds and argued that she had only agreed to an appearance bond and the Defendant had not missed any court dates.

5. The Court disagreed and found that 2™ Chance Bail Bonds “took no steps whatsoever to supervise the Defendant’s compliance with bail conditions.” The Court further found that 2™ Chance Bail Bonds “assumed responsibility to monitor the defendant’s bail conditions and not to just secure his appearance in court.” Due to this, the Court ordered that the bond be forfeited by order dated July 5, 2017.

AA

6. Superior Court Rule 12(e) provides that a Motion for Reconsideration or other post- decision relief shall be filed within 10 days of the date on the written Notice of the order or decision.

7. 2"™ Chance Bail Bonds had previously appeared pro so, but has now hired counsel to assist in this matter and wishes to file a Motion to Reconsider. As the Court’s order is dated July 5, 2017, today’s date (July 17, 2017) is the final day to file said Motion.

8. Contemporaneous with this filing is counsel’s Appearance in this matter.

9. It is therefore requested that this Court afford 2“! Chance Bail Bonds an additional 14 days in order to meaningful respond to the Court’s order.

WHEREFORE, the Defendant respectfully requests that this Court: