June 20, 2007
STATE OF NEW JERSEY (COUNTY OF BERGEN), PLAINTIFF-RESPONDENT,
NAZARIO VENTURA, DEFENDANT, AND SAFETY NATIONAL CASUALTY CORPORATION, AS SURETY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2007
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. at 101-03. We remanded the matter for further development of the record and a full exploration of all of the relevant factors bearing on the surety's entitlement to any remission. Id. at 103.
In particular, we directed the trial court on remand to consider whether the State would have sought to prosecute defendant had he been returned; whether, if the State still sought to prosecute any co-defendants, the extent of any prejudice the State would have suffered by reason of the defendant's non-appearance at any trial; the efforts of the surety to return him to New Jersey; whether the defendant chose not to strenuously oppose his deportation, or decline to appeal the order of the immigration judge, in order to avoid returning to New Jersey and face the prospect of possible incarceration; and whether the surety sought to delay the immigration proceedings until after disposition of the New Jersey criminal charges. Id. at 101-02.
The State, in turn, urges us to affirm the Law Division and relies on our decision in State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003), where we held that "where defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate." Id. at 255 (emphasis added).
In Harmon, we exercised our original jurisdiction to review sixteen bail forfeiture proceedings in the Law Division in which a surety's motion for remission had been denied. Id. at 253. We held that the trial court correctly refused to consider any remission of bail posted for two defendants who remained fugitives. Id. at 255. Before we addressed the common elements in fourteen of those cases, we dealt with the cases of the two defendants who remained fugitives, and concluded that because both remained fugitives at the time the remission motion was made, "the motion for remission was denied in full, and we affirm." Ibid. We noted, however, that if either of those defendants were to be recaptured within four years of the date of his original non-appearance, the surety was entitled to renew its motion for remission and/or exoneration. Id. at 255-56.
Our decisions in Poon and Harmon are in considerable conflict. Poon has never been overruled, nor has its holding ever been applied in any subsequent published decision. The holding in Harmon, which did not discuss Poon, and which disallowed any remission where the defendant is a fugitive, would appear to impliedly disapprove the holding of Poon.
Less than one year after Harmon was decided, the Administrative Director of the Courts issued Directive #13-04 concerning bail and bail forfeiture. See Directive #13-04, Revision to Forms and Procedures Governing Bails and Bail Forfeitures (November 17, 2004) http://www.judiciary.state.nj. us/directive/criminal/dir_13_04.pdf (Directive). The Guidelines contained in the Directive were promulgated in order to achieve uniformity in bail remission decisions and to provide "a starting point when determining whether to grant a remission and, if so, the amount to remit." Directive #13-04, Attachment F at 2. See also State v. Harris, 382 N.J. Super. 67, 71-72 n.5 (App. Div. 2005) (indicating that the Guidelines are only a starting point for evaluating remission applications and should be applied in light of subsequent case law and all factors relevant to the particular case), certif. denied, 186 N.J. 365 (2006).
Even though the Guidelines are only a "starting point," its provisions nonetheless make it abundantly clear that "Where Defendant Is A Fugitive When Remission Motion Is Made," there shall be "No Remission." Directive #13-04, Attachment F at 2. Immediately following the words "No Remission," the Guidelines quote approvingly from Harmon, supra, by adopting its holding and specifying that "'[w]here [the] defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate.'" Directive #13-04, Attachment F at 2 (quoting Harmon, supra, 361 N.J. Super. at 255).
Here, the motion judge declined to consider any of the eight factors that the Directive specifies should be weighed in determining whether to remit bail.*fn2 In Toscano, supra, we described the policy considerations underlying the Directive, 389 N.J. Super. at 371, the methods to be used in determining which of the three separate schedules of the Guidelines should be utilized in a particular case, id. at 372-75, and reiterated the Directive's eight factors to be weighed in determining the amount of any remissions, Id. at 372.
Of particular importance here is the discussion in Toscano of which of the three schedules a court shall apply. Ibid. We explained that there are three schedules that the Guidelines denominate as follows:
1. WHERE DEFENDANT IS A FUGITIVE WHEN REMISSION MOTION IS MADE
2. WHERE DEFENDANT IS NOT A FUGITIVE WHEN REMISSION MOTION IS MADE AND DEFENDANT DID NOT COMMIT A NEW CRIME WHILE A FUGITIVE
3. WHERE DEFENDANT NOT A FUGITIVE WHEN REMISSION MOTION MADE AND DEFENDANT DID COMMIT A NEW CRIME WHILE A FUGITIVE
[Directive #13-04, supra, Attachment F at 2-4.]
Significantly, we noted in Toscano that the selection of the appropriate schedule of the Guidelines is to be determined by "the defendant's status as a fugitive and his or her new criminal conduct while at large." 389 N.J. Super. at 372. As we explained, the "second and third schedules provide different 'starting points' for remission in each category based upon whether the defendant committed a new crime while at large." Id. at 372-73 n.2. No remission "starting points" are established for the first category because as the Directive pointedly observes, "WHERE DEFENDANT IS A FUGITIVE WHEN REMISSION MOTION IS MADE," there is to be "No Remission." Directive #13-04, supra, Attachment F at 2.
We remain mindful that the decision in Poon, supra, is in conflict with both the decision in Harmon, supra, and the provisions of Directive #13-04, Attachment F at 2. The trial judge did not refer to any of these three in declining to consider Safety's motion. In light of the conclusion in Harmon, supra, that the denial of a motion for any remission is proper when the defendant remains a fugitive at the time the motion is filed, 361 N.J. Super. at 255; the Guidelines' approval of that conclusion in Attachment F of the Directive; and the adoption in Toscano, supra, of the Guidelines' treatment of that issue, 389 N.J. Super. at 372, we conclude that when a defendant remains a fugitive at the time the remission motion is made, the essential undertaking of the surety remains unsatisfied. Accordingly, the denial of any remission here was appropriate.