                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-5076-14T1

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

MIGUEL Y. TINEO-PAULINO,

        Defendant,

and

FIRST INDEMNITY OF AMERICA
INSURANCE COMPANY,

        Surety-Respondent,

and

BLAZE BAIL BONDS, INC.,

        Bondsman.


              Argued March 16, 2017 – Decided June 14, 2017

              Before Judges Alvarez and Manahan.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 09-01-0178.

              Malcolm V.       Carton    argued    the    cause    for
              appellant.
          Samuel M. Silver     argued     the   cause   for
          respondent.

PER CURIAM

     On March 6, 2015, a Law Division judge ordered the return of

$75,000 of a $100,000 bond to Blaze Bail Bonds, Inc. (Blaze).      The

bond was posted on behalf of defendant Miguel Tineo-Paulino.       The

judge also "denied without prejudice" the State's motion for a

writ of execution on the previously entered default judgment on

the full amount of the bond.     The State sought reconsideration,

which was denied on May 29, 2015.     This appeal followed.    We now

reverse and remand as to the judge's calculations under Remittitur

Guidelines Schedule 3, but affirm his ruling regarding counsel

fees and the application of the statute of limitation found in

N.J.S.A. 2A:162-8.

     The matter has a convoluted procedural history.     Blaze posted

the bond for defendant on December 7, 2008, securing his release.

Defendant has not returned to court since.      As we stated in our

prior decision regarding this matter, "[n]o contacts with, or

supervision of, defendant took place between [December 7, 2008]

and defendant's failure to appear at a status conference seven

months later, on July 7, 2009.       Bail was then forfeited, and a

bench warrant issued."    State v. Tineo-Paulino, No. A-2547-12

(App. Div. Apr. 2, 2014) (slip op. at 2).


                                 2                            A-5076-14T1
     On October 9, 2009, a default judgment issued against the

surety for $100,000.            Id. at 2.      Thereafter, Blaze filed an

application    to    vacate     the   forfeiture,    for    exoneration,       and

discharge,    producing     a    death   certificate     from    the   Dominican

Republic along with an apostille certifying to the document's

veracity.     Id. at 2-3.       The judge vacated the prior judgment and

related orders.      Id. at 3.

     County counsel later learned that not only was defendant

alive, he had actually been arrested on new charges by the United

States Drug Enforcement Administration (DEA).               Id. at 3-4.          On

November 14, 2012, the judge again forfeited bail because Blaze

never produced defendant in court, defendant was charged with a

new offense, and was clearly still alive.            Id. at 4-6.       The judge

also ruled that Blaze was not entitled to any further relief until

such time as defendant was produced.            Id. at 6.       Blaze appealed,

and we affirmed on April 2, 2014.            Id. at 2.

     On April 14, 2014, the surety filed a second motion in the

trial court to vacate the judgment, exonerate bail, and discharge

the bail bond.       The State sent the surety a Rule 1:4-8 letter on

May 7, 2014, requesting that the motion be withdrawn as frivolous

and putting Blaze on notice that it would seek counsel fees if the

application    was    not   withdrawn.        See   R.   1:4-8.        After   its



                                         3                                A-5076-14T1
application was denied, the surety filed a second notice of appeal,

withdrawn three months later.

      The State then filed an unsuccessful motion for counsel fees.

A week after that decision, the criminal charges pending against

defendant were dismissed on October 31, 2014.           The dismissal was

entered by a different judge who was completely unaware of the

matter's prior history.     County counsel's office, representing the

State only as to the bail litigation, was not informed of the

dismissal until after Blaze's counsel was advised in the ordinary

course of the discharge.    The Monmouth County assistant prosecutor

who dismissed the indictment, and discharged the bail, explained

the dismissal as the result of defendant pending a federal sentence

in   the   Eastern   District   of   New   York.   He   said,   "[f]urther

prosecution of these charges would serve no purpose."

      The State's subsequent December 16, 2014 motion for a writ

of execution and counsel fees was based on the entry of the prior

order of default.       The State also contended that the surety's

second application to vacate the judgment, in light of the prior

failure to appear and the outcome of the appeal, had no basis in

law or fact.

      On March 6, 2015, the judge issued a written opinion denying

the State's motions for a writ of execution and counsel fees.           The

basis for denial was that the State failed to notify the surety

                                      4                            A-5076-14T1
in the frivolous litigation letter that it had twenty-eight days

in which to withdraw its April 14, 2014 motion.

     The judge wrote:

          Here, once the State requested dismissal of
          all charges against the defendant, his
          presence in court was no longer required once
          the judgment of dismissal was entered on
          October 31, 2014. There was no reason to
          continue defendant's bail after his charges
          were dismissed. For this reason, the bail was
          returned to the surety, yet the surety is not
          entitled   to   complete    exoneration   and
          remission. If the surety fails to pay the
          amount of remission, at that point the State
          would be entitled to execute on that amount.

     The judge then analyzed the factors provided in State v.

Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973) regarding the

efforts Blaze undertook to recapture defendant.

     The judge acknowledged that Blaze engaged in no supervision,

and that defendant was able to flee to the Dominican Republic

(factor three).   After defendant's nonappearance, Blaze hired a

private investigator (factor one) who reached out to persons in

the Dominican Republic.    Defendant was a fugitive for over five

years until he was taken into federal custody, at which point the

surety "lost any and all ability to produce defendant in this

[c]ourt" (factor four).   The State incurred significant legal fees

but will suffer no prejudice because defendant's charges were

ultimately   dismissed    (factor       five).   Regarding   whether


                                    5                        A-5076-14T1
reimbursement of the State's expenses would adequately satisfy the

interest of justice, the court opined that since defendant fled

and never appeared in this court, the "intangible element of injury

weighs heavily against allowing the surety complete remission and

exoneration" (factor six), and defendant committed other crimes

while he was a fugitive (factor seven).     Factor two was undisputed

and of no effect in the calculation since the surety was a

commercial bondsman.

     Having reviewed the factors, the judge applied Remission

Schedule 3 under the Remittitur Guidelines (the Guidelines).        See

Administrative   Directive   No.   13-04,   Revision   to   Forms   and

Procedures Governing Bail and Bail Forfeitures1 (Nov. 17, 2014),

http://www.judiciary.state.nj.us/directive/criminal/dir_13_04.pdf.

He said:

           In this case, the "special reason" is that the
           surety spent a considerable effort to "prove"
           that defendant was dead.        In fact, the
           defendant was alive and committing serious
           crimes which resulted in a guilty plea in
           federal court in the Eastern District of New
           York. The surety should not, in equity, be
           rewarded by such conduct. Nor has the surety
           offered any evidence to explain how it
           obtained and filed a false death certificate
           and even worse, a false "apostille" which
           purported to authenticate defendant's demise.
           These documents induced this [c]ourt to grant

1
  See also Revised Bail Remittitur Guidelines, Supplement to
Directive No. 13-04 (Oct. 9, 2007), http://www.judiciary.state.nj.
us/directive/criminal/supp_dir_13_04.pdf.

                                   6                           A-5076-14T1
          full exoneration to the surety in December
          2010.   The surety was not entitled to that
          relief as defendant was alive.       Remission
          schedule 3 suggests that between 0 and 10
          percent should be remitted.         Here, the
          defendant was apprehended and in the custody
          of the federal authorities, but had committed
          other offenses while on bail. The State chose
          not to lodge a detainer but instead requested
          these charges be dismissed so the surety will
          never be called upon to produce the defendant.
          Thus, the surety must remit 25% or $25,000.00.

     In support of its application for reconsideration, the State

contended that Remission Schedule 3 was inapplicable.      Even if

applicable, the remission table pursuant to Schedule 3 allowed

only zero to ten percent to be paid to the bond company, because

it did not supervise, failed to engage in immediate efforts to

recapture, and the time defendant was at large was more than twelve

months.

     Finding the State had not identified law or facts which the

court had overlooked or about which the court was mistaken pursuant

to Rule 4:49-2, the application was denied.     The court for the

first time ruled on the State's new argument that the surety was

out of time to apply for the return of its bond under N.J.S.A.

2A:162-8 because:

          under these circumstances there is a doctrine
          of equitable tolling because remission of bail
          is an equitable proceeding and first of all
          the statute was not raised during the various
          voluminous motions. But even if it were, the


                                 7                          A-5076-14T1
          provisions   of   equitable   tolling   apply   in
          this case.

As to counsel fees, the judge reiterated that Rule 1:4-8(b)(1)

required that the moving party advise of the twenty-eight day time

period in which the motion can be withdrawn, and that the State

failed to do so.   This appeal follows.

     The State raises the following points for our consideration:

          POINT I
          REMISSION OF BAIL IS INAPPROPRIATE WHERE THE
          FUNDAMENTAL CONDITION OF BAIL, PRODUCTION OF
          THE DEFENDANT, WAS NEVER MET AND THERE IS
          NOTHING IN THE RECORD TO INDICATE THAT THE
          DEFENDANT WAS IN CUSTODY OR WAS IN CUSTODY
          ANYWHERE OR AT ANY TIME AND A JUDGMENT OF
          FORFEITURE HAS NEVER BEEN VACATED.

          POINT II
          EVEN UNDER BAIL REMISSION SCHEDULE 3, NOTHING
          POINTS TO A REMISSION OF OVER 60% OF BAIL AND
          CERTAINLY NOT THE 75% ORDERED BY THE COURT
          BELOW.

          POINT III
          THE INTANGIBLE HARM TO THE COMMUNITY INFLICTED
          BECAUSE OF THE DEFENDANT'S FAILURE TO APPEAR
          FURTHER WARRANTS FORFEITURE OF THE BAIL AND
          DENIAL OF REMISSION.

          POINT IV
          THE SURETY IS OUT OF TIME TO APPLY FOR A RETURN
          ON MONIES AS APP[LIC]ATIONS FOR A RETURN OF
          MONIES PAID SHALL BE MADE TO THE COURT
          WITHIN[] FOUR YEARS AFTER THE RECOGNIZANCE
          SHALL HAVE BEEN DECLARED FORFEITED, N.J.S.A.
          2A:162-8.

          POINT V
          THE DECISION TO DENY COUNSEL FEES WAS BASED
          ON A DE MINIMUS AND TECHNICAL VIOLATION AND

                                  8                            A-5076-14T1
            IN LIGHT OF THE ONGOING EFFORTS OF THE STATE
            TO COLLECT THE BAIL MONEY, IT SHOULD BE
            AWARDED COUNSEL FEES.

                                   I.

     "The    matter   of   remission       lies   essentially   in   judicial

discretion."    State v. Peace, 63 N.J. 127, 129 (1973).             We focus

our discussion on Bail Remission Schedule 3, the reason Blaze is

not out of time to seek remission, and the reason the State is not

entitled to counsel fees under Rule 1:4-8(b)(1).

                                   II.

     If a person admitted to bail fails to appear in court, "the

court on its own motion shall order forfeiture of the bail[.]"               R.

3:26-6.     However, "[t]he court may, either before or after the

entry of judgment, direct that an order of forfeiture or judgment

be set aside, in whole or in part, if its enforcement is not

required in the interest of justice . . . ."            R. 3:26-6(b).     Once

the forfeiture has been set aside or remission ordered, "the court

shall exonerate the obligors and release any bail."             R. 3:26-7.

     Bail was forfeited and a default judgment entered in favor

of the State once defendant failed to appear and Blaze failed to

produce him in 2009.       Since that time, Blaze has not produced

defendant, and once he was in federal custody, Blaze could not

produce him.



                                       9                              A-5076-14T1
     To   further   complicate   the   analysis,   the   indictment   was

dismissed, and that judge, unaware of this history, in accord with

routine standard protocol, discharged the bail bond.        Afterwards,

the State moved for a writ of execution on the default judgment

which predated the dismissal and discharge of the bail, arguing

that it remained unaffected.     The court disagreed, ordering a more

substantial remission than permitted under Schedule 3.

     "[A] motion for remission of forfeited bail is assessed in a

fact-sensitive manner, weighing a multitude of factors outlined

in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and

its progeny."   State v. Ventura, 196 N.J. 203, 206 (2008).           The

Hyers factors include the following:

           (a) whether the applicant is a commercial
           bondsman; (b) the bondsman's supervision, if
           any, of defendant during the time of his
           release; (c) the bondsman's efforts to insure
           the return of the fugitive; (d) the time
           elapsed between the date ordered for the
           appearance of defendant and his return to
           court; (e) the prejudice, if any, to the State
           because of the absence of defendant; (f) the
           expenses incurred by the State by reason of
           the default in appearance, the recapture of
           the fugitive and the enforcement of the
           forfeiture; [and] (g) whether reimbursement of
           the expenses incurred in (f) will adequately
           satisfy the interests of justice.

           [Ventura, supra, 196 N.J. at 213 (quoting
           Hyers, supra, 122 N.J. Super. at 180).]




                                  10                             A-5076-14T1
Other factors have been considered such as whether the surety's

efforts helped secure the defendant, State v. Mercado, 329 N.J.

Super. 265, 271 (App. Div. 2000), the surety's steps in recapturing

the defendant, and the amount of the bail, State v. de la Hoya,

359 N.J. Super. 194, 199 (App. Div. 1999).           Ventura, supra, 196

N.J. at 213-14.

            However, the court's primary focus, especially
            when the defendant has remained a fugitive for
            a significant period of time, should be upon
            the surety's efforts to secure the defendant's
            return, rather than upon the expenses incurred
            by the State as a result of the defendant's
            failure to appear or the prejudice to the
            State's case caused by the defendant's
            absence.

            [Mercado, supra, 329 N.J. Super. at 271.]

Moreover, "[a] 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.'"     Id. at 269-70 (quoting State v. Childs, 208 N.J.

Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)).

"A crucial factor in every bail remission case is whether the

defendant remains a fugitive."      Ventura, supra, 196 N.J. at 206.

      In this case, Blaze did not supervise defendant whatsoever,

he was able to flee to a foreign country, and while there committed

a   new   offense.   It   would   therefore   seem   that   the   "minimal

remission," not the "substantial remission" tables applied because

                                   11                              A-5076-14T1
"the surety provided minimal or no supervision . . . and failed

to   engage   in    immediate    substantial    efforts    to   recapture       the

defendant."        Even if Blaze was duped by persons unknown into

believing defendant had died while in the Dominican Republic, and

Blaze was not implicated in the deception, Blaze did not engage

in immediate substantial efforts to recapture defendant.

      Careful balancing is necessary to offset the harm to the

public resulting from defendant's failure to appear against the

State's    unexplained    decision     to   merely   dismiss     the   charges.

Regardless of these equitable considerations, it appears on this

record that only minimal remission is appropriate. It is difficult

to   equate    "immediate       substantial    efforts    to    recapture       the

defendant" with efforts to prove he was dead.             Therefore, even the

"Partial Remission" portion of Schedule 3 does not seem to us

applicable.     Certainly the "Substantial Remission" section is not

applicable since Blaze did not supervise defendant once he was

released on bail and he was able to flee the country.

      Factor six requires assessment of whether reimbursement of

the State's expenses will adequately satisfy the interests of

justice.      State v. Harmon, 361 N.J. Super. 250, 255 (App. Div.

2003).    However, "[t]he detriment to the State also includes . . .

an   unquantified     'intangible    element    of   injury     to   the    public

interest in almost any case where a defendant deliberatively fails

                                      12                                   A-5076-14T1
to make an appearance in a criminal case.'"                Id. at 255 (quoting

Peace, supra, 63 N.J. at 129).               After considering defendant's

flight from this jurisdiction, the judge properly found that

"[t]his     intangible     element    of    injury   weighs    heavily    against

allowing the surety complete remission and exoneration."                        The

judge weighed factor seven against the surety in similar fashion,

as defendant had additional charges brought against him while he

was a fugitive.

       The "immediacy of the surety's efforts should ordinarily be

measured     from    the    time     the    surety    is    informed      of    the

warrant/forfeiture, without reference to when it would or should

have learned of that fact if there had been proper supervision."

State v. Toscano, 389 N.J. Super. 366, 374 (App. Div. 2007)

(quoting State v. Ruccatano, 388 N.J. Super. 620, 626 (App. Div.

2006)). In order for the efforts to be "substantial," "the efforts

must   be   reasonable     under     the   circumstances      of   the   case   and

'effective.'"       Ibid. (quoting Ruccatano, supra, 388 N.J. Super.

at 627-29).     The surety made limited efforts —— succeeding only

in producing a fictional death certificate.

       We therefore reverse the trial court's calculation of the

appropriate remission as it exceeds the maximum under Schedule 3,

and does not adequately address the surety's complete failure to

supervise or engage in any efforts to return defendant to this

                                       13                                  A-5076-14T1
jurisdiction.      It is clear the judge's factual findings were

correct, and his assessment of each factor was also correct.                But

his   ultimate   decision   regarding       remission    calculated    by   the

schedule he applied appears to be a mistake of law, not a mistaken

exercise of discretion.

                                     III.

       We do not agree with the State that the surety is out of time

in seeking a return of the bail bond.            The State contends that

since the original forfeiture took place on July 7, 2009, and the

default judgment entered on October 9, 2009, N.J.S.A. 2A:162-8

applies, and effectively bars the surety from relief. That statute

reads:

             When any court which has ordered or shall
             order the forfeiture of a recognizance, the
             amount whereof has been or shall be paid into
             the county treasury of any county in
             accordance with law, shall thereafter, in its
             discretion, order the return of the moneys so
             paid upon the forfeited recognizance . . . .
             [a]pplication for a return of moneys so paid
             shall be made to the court within 4 years after
             the recognizance shall have been declared
             forfeited.

             [N.J.S.A. 2A:162-8.]

       "The time limitation [under N.J.S.A. 2A:162-8] is directed

to    the   forfeiture,   not   to   any    judgment    which   a   court   may

subsequently enter."      State v. Singletary, 170 N.J. Super. 454,

460 (Law Div. 1979). The surety's July 2009 forfeiture was vacated

                                     14                                A-5076-14T1
on December 22, 2010.     The forfeiture was then reinstated on

November 14, 2012.    This order was stayed pending appeal, and

later affirmed on April 2, 2014.     Tineo-Paulino, supra, slip op.

at 12.   Thus, the surety was not out of time to receive a return

of its bond as it began to seek the return of the funds two years

after the 2012 forfeiture.

                               IV.

     Finally, the State also contends the trial court erred in

denying the motion for counsel fees.    While conceding it did not

include the twenty-eight-day time frame found in Rule 1:4-8(b)(1),

the State does not agree that omission is consequential.

     The decision to award counsel fees pursuant to the frivolous

litigation statute rests within the sound discretion of the trial

court.   See Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55,

83-84 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005). Under

the frivolous litigation statute:

          A party who prevails in a civil action, either
          as plaintiff or defendant, against any other
          party may be awarded all reasonable litigation
          costs and reasonable attorney fees, if the
          judge finds at any time during the proceedings
          or   upon    judgment    that     a complaint,
          counterclaim, cross-claim or defense of the
          nonprevailing     person      was   frivolous.

          [N.J.S.A.   2A:15-59.1(a)(1).]




                               15                           A-5076-14T1
In order for a motion to be frivolous it must have been made in

"bad   faith,   solely   for   the   purpose   of    harassment,    delay    or

malicious injury" or "without any reasonable basis in law or equity

and could not be supported by a good faith argument for an

extension, modification or reversal of existing law."               N.J.S.A.

2A:15-59.1(b).

       Rule 1:4-8(b)(1) provides:

            An application for sanctions under this rule
            shall be by motion made separately from other
            applications and shall describe the specific
            conduct alleged to have violated this rule.
            No such motion shall be filed unless it
            includes a certification that the applicant
            served written notice and demand pursuant to
            [Rule] 1:5-2 to the attorney or pro se party
            who signed or filed the paper objected to. The
            certification shall have annexed a copy of
            that notice and demand, which shall (i) state
            that the paper is believed to violate the
            provisions of this rule, (ii) set forth the
            basis for that belief with specificity, (iii)
            include a demand that the paper be withdrawn,
            and (iv) give notice, except as otherwise
            provided herein, that an application for
            sanctions will be made within a reasonable
            time thereafter if the offending paper is not
            withdrawn within 28 days of service of the
            written demand.

"Rule 1:4-8(b)(1) requires a 'motion made separately from other

applications' and notice to the adversary of its right to take

action to withdraw the objectionable pleading within a twenty-

eight-day    period.     Strict      compliance     is   a   prerequisite    to



                                      16                              A-5076-14T1
recovery."   State v. Franklin Sav+. Account, 389 N.J. Super. 272,

281 (App. Div. 2006).

     In light of the unusual circumstances and lengthy history of

the dispute, and the fact that the surety's motion was clearly not

made in bad faith or with the purpose to harass or delay, but in

a continuing years-long effort to recover a substantial sum, the

State is not entitled to counsel fees pursuant to the rule.      The

surety had a colorable basis for seeking the return of funds. That

position was bolstered when the indictment was dismissed.     Since

we conclude that the application was not made in bad faith,

although a different reason from the trial judge's for the denial

of the claim, we affirm.   See State v. Jones, 445 N.J. Super. 555,

560 n.4 (App. Div. 2016) (citation omitted) ("[A] correct result

predicated upon an incorrect basis does not preclude an affirmance

of [a] ruling.").

     Reversed and remanded for reconsideration of the remission

amount, otherwise affirmed.




                                17                          A-5076-14T1
