On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-09-1905.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Baxter.
Defendant Safety National Casualty Corporation (Safety) appeals from an August 2, 2006 order denying its motion to vacate a bail forfeiture and discharge its obligation on a bail bond it had posted in the amount of $150,000 for Nazario Ventura. Safety argued before the Law Division, and argues before us on appeal, that the motion judge committed reversible error when he declined to consider Safety's motion for exoneration solely because Ventura remained a fugitive. We disagree and affirm.
Ventura was arrested on weapons and narcotic charges.*fn1 On March 10, 2005, Safety posted a bail recognizance bond on Ventura's behalf, whereupon Ventura was released from the Bergen County Correctional Facility. In due course, an indictment was returned against Ventura, and the Criminal Division Manager's Office notified Ventura that he was required to attend a court proceeding on June 13, 2005. When he failed to appear, a warrant was issued for his arrest and the Law Division declared the bail posted by Safety forfeited. Upon receipt of the forfeiture notice, Safety directed one of its recovery agents to attempt to locate Ventura so that it could surrender him to the court on the outstanding warrant. That investigation revealed that defendant had fled to Canada, where his wife lived. Safety notified the Bergen County Prosecutor's Office of Ventura's address in Montreal.
On October 5, 2005, a judgment in the amount of $150,000 was entered in favor of the State of New Jersey, County of Bergen and against Safety on the bond it had posted on March 10, 2005. Safety continued its investigation, and ultimately learned that defendant had been incarcerated since August 2005 in the Riviere Des Prairies Detention Facility in Montreal. Again, Safety notified the Prosecutor's Office of Ventura's whereabouts and the Prosecutor's Office lodged a detainer.
On December 19, 2005, because of Ventura's incarceration in Canada, Safety filed its motion to vacate the October 5, 2005 judgment. The court denied that motion on February 23, 2006, without prejudice, stating that Safety could renew its motion if Ventura were returned to the United States.
Continuing its investigation, Safety learned on June 29, 2006, that Ventura had been deported from Canada to the Dominican Republic. Armed with that new information, Safety filed a second motion to vacate the judgment. Its motion was heard and denied by the Law Division on August 2, 2006, again because Ventura remained a fugitive. The court explained its reasons for denying the motion, stating "[o]bviously, he has a choice, and [if] he wanted to come and respond to the charges, he could have told them he wanted to come back. I'm going to deny the motion because he hasn't been produced and he has not been in the United States."
We review Safety's claims in accordance with our standard of review. "'[T]he decision to remit bail and the amount of remission are matters within the sound discretion of the trial court.'" State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007) (quoting State v. Clayton, 361 N.J. Super. 388, 392-93 (App. Div. 2003)). The exercise of that discretion is not unbounded, and must be guided by the "factors and policies that are relevant to the equitable exercise of [that] discretion." Ibid.
On appeal, Safety argues that the court erred when it relied on the failure to have produced Ventura as a basis for considering any remission. In particular, Safety argues that unlike a defendant whose whereabouts are unknown, here Safety's investigation ascertained the whereabouts of Ventura, but Safety, through no fault of its owns, lacks the ability to produce him in court. It argues that under such circumstances, it should not be penalized, and the motion judge's refusal to consider the factors and criteria set forth in the Remittitur Guidelines issued by the Administrative Director of the Court constitutes reversible error of law.
In support of that argument, Safety relies on our decision in State v. Poon, 244 N.J. Super. 86 (App. Div. 1990). In Poon, we held that where a defendant has been deported, a per se rule prohibiting any remission is inappropriate. Id. at 101. There, after the defendant was released on bail, he was deported because he had entered the United States illegally. Id. at 93. At the hearing before a United States Immigration Judge in San Francisco, defendant Poon pled "no contest" to the immigration complaint. Id. at 92. We held that in light of the surety's inability to produce the defendant, either by extradition or under the Interstate Agreement on Detainers, the court had erred when it declined to consider the equities of the surety's position. Id. ...