August 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEIDY GRANADOS, DEFENDANT, AND LEXINGTON NATIONAL INSURANCE CO., (SURETY), DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-05-006421-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Gilroy and Lihotz.
Lexington National Insurance Co. (the Surety) appeals from the October 18, 2006, order of the Law Division that denied its motion to vacate the order of bail forfeiture of December 10, 2004, and to exonerate and discharge itself from all liability. We affirm.
On July 16, 2004, the Surety posted a $40,000 bail bond for defendant Leidy Granados. After defendant's release on bail, the Surety monitored and supervised defendant, requiring her to report to the Surety's office each week. Defendant complied with her reporting requirements until October 2004. When defendant failed to report, the Surety attempted to locate her by sending investigators to her last known address and by making inquiry of her family and friends. On December 10, 2004, defendant failed to appear for a court status conference. Defendant's bail was forfeited, and a bench warrant was issued for her arrest. On November 18, 2004, notice of bail forfeiture was sent to the Surety, R. 3:26-6(a). On December 23, 2004, the Middlesex County Prosecutor's Office - Fugitive Task Force (MCPO-FTF) ascertained that defendant was in the custody of the Randolph County Sheriff, Ashborough, North Carolina, on local theft charges. On that date, the MCPO-FTF forwarded a telefaxed transmission to the Randolph County Jail, together with a copy of the bench warrant, requesting that the warrant be considered as a detainer on defendant, pending the issuance of a formal detainer. On December 28, 2004, the Surety, having learned of defendant's whereabouts on December 22, 2004, made inquiry by telefax of the Randolph County Jail, requesting that it confirm defendant's incarceration at that institution. The jail confirmed defendant's confinement, stating that defendant had been incarcerated since October 4, 2004. On January 11, 2005, the MCPO-FTF lodged a formal detainer with the Randolph County Jail.
In the interim, on or about January 6, 2005, the Surety filed a motion to vacate the bail forfeiture, asserting that defendant was incarcerated in the Randolph County Jail and that the MCPO-FTF had filed a detainer with that authority. On January 19, 2005, the MCPO-FTF was notified that defendant was in the custody of the U.S. Marshall's Office, and a second detainer was lodged with that office. On June 8, 2005, the U.S. Marshall's Office contacted the MCPO-FTF, advising that defendant could not be located in any of its correctional facilities. Thereafter, the MCPO-FTF contacted the Immigration and Naturalization Service, Northfield Office, and was informed that defendant had been deported to Colombia on June 23, 2005.
On June 2, 2006, the Surety's motion to vacate the order of forfeiture was denied, and it was directed to pay over the full amount of the bail, $40,000.*fn1 A confirming order was entered on July 11, 2006.
On or about July 21, 2006, the Surety filed a second motion, seeking to vacate the bail forfeiture asserting that defendant had been deported on June 23, 2005. On September 15, 2006, the judge denied the motion, determining that the Surety was not entitled to relief because defendant remained in fugitive status as of the time of the hearing. The judge determined that the Surety had "engage[d] in an adequate level of monitoring and supervision of this defendant prior to the [non-]appearance" and had commenced searching for defendant after defendant failed to comply with her weekly reporting obligation, in the latter part of October. However, the judge also determined that the Surety had failed to prove that it would be inequitable to insist upon a total bail forfeiture because the Surety had not provided any indication that it, or anyone on its behalf, had attempted "to intervene or impact upon the [United States Department of Home Land Security, Bureau of Immigration and Customs Enforcement] . . . deportation proceedings against this defendant." The judge concluded that "based upon the various factors that the Surety [had] not made reasonable efforts under the circumstances to effect the recapture of defendant." A confirming order was entered on October 18, 2006.
On appeal, the Surety argues "a bail forfeiture should be set aside when a defendant is deported to another country and cannot be returned to court." We disagree.
The Surety contends that the trial judge erred by denying its motion solely because defendant remained a fugitive. The Surety asserts that it is not required to make an actual apprehension in order to receive a substantial remission, but only to undertake immediate, active, and reasonable steps to recapture the defendant. The Surety also argues that denial of the motion for remission of bail, because a defendant has been deported will: 1) have a chilling effect on sureties who seek to release defendants on bail, causing significant impact on defendants' constitutional rights; and 2) cause hardship to family or friends of defendants who agree to act as indemnitors and collateralize the bond. The State counters that the judge did not apply a per se rule in denying the motion, but carefully balanced the equities and determined that the Surety had failed to sustain its burden that it would be inequitable to insist upon the forfeiture, or that the forfeiture was not required in the public interest. The State contends that the denial of the motion did not result in a chilling effect on sureties, or hardships on families and friends, because their undertakings were voluntary and made with the understanding of their responsibilities, duties, and liabilities.
An appellate court's scope of review of a trial court's determination is limited. Factual findings and conclusions of the trial judge are generally given deference, especially "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "[A]n appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (second alteration in original) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, "[a] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
"[T]he decision to remit bail and the amount of remission are matters within the sound discretion of the trial court to be exercised in the public interest." State v. Harmon, 361 N.J. Super. 250, 254 (App. Div. 2003). Bail forfeiture proceedings are governed by Rule 3:26-6 and the Remittitur Guidelines contained in Administrative Directive # 13-04. Before or after the entry of a judgment of bail forfeiture, the court may "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). If the forfeiture is not "set aside or satisfied" within seventy-five days of date of notice, the court shall "summarily enter a judgment of default for any outstanding bail." R. 3:26-6(c). However, if the enforcement of an order of forfeiture of judgment is not required "in the interest of justice," the court, after the entry of the order or judgment, may remit bail "in whole or in part." Ibid. On a motion to set aside an order of forfeiture or judgment, the burden rests upon the moving party. State v. Poon, 244 N.J. Super. 86, 97 (App. Div. 1990).
The Remission Guidelines contained in Directive #13-04 were approved by the Supreme Court after this court's trilogy of cases in 2003 that set parameters for remissions in certain factual contexts. State v. Clayton, 361 N.J. Super. 388 (App. Div. 2003); State v. Dillard, 361 N.J. Super. 184 (App. Div. 2003); and State v. Harmon, 361 N.J. Super. 250 (App. Div. 2003). In determining whether to grant a remission and if so the amount to be remitted, the trial court is required to weigh the following factors:
1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant.
2. Whether the applicant is a commercial bondsman.
3. The surety's supervision of the defendant while he or she was released on bail.
4. The length of time the defendant is a fugitive.
5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's non-appearance, recapture[,] and enforcement of the forfeiture.
6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.
7. The defendant's commission of another crime while a fugitive.
8. The amount of the posted bail. In determining the amount of a partial remission the court should take into account, not only an appropriate percentage of the bail, but also its amount. [Directive #13-04, Attachment F, Remittitur Guidelines (Superior and Municipal Courts), Factors to Weigh in Determining Remission, at 1-2 (internal citations omitted).]
The Guidelines "provide judges with a starting point when determining whether to grant a remission, and, if so, the amount to remit." Id. at 2. Judges are cautioned that "the particular facts in an individual case will determine whether the amount to remit [should be] increased or decreased" from the amounts recommended in the Guidelines. Ibid. The Guidelines suggest:
1) a denial of any remission where the defendant remains a fugitive when the remission motion is filed; and 2) a partial, or substantial remission of bail at certain percentages where the defendant is not a fugitive when the remission motion is filed, depending upon whether the defendant had committed a new crime while a fugitive. Id. at 2-4.
We have considered Surety's arguments in light of the record and applicable law. We are not persuaded by any of them and affirm substantially for the reasons expressed by Judge Venezia in her oral decision of September 15, 2006.
The trial judge did not enact a per se rule in denying the motion, that is, solely because defendant had been deported, State v. Poon, supra, 244 N.J. Super. at 101. Rather, the judge considered the equities under the totality of the circumstances. Id. at 97. Because for all practical purposes, defendant remained a fugitive at the time the motion was filed, the Guidelines recommend "the denial of any remission," citing State v. Harmon, supra, 361 N.J. Super. at 255 (holding "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."). Against this starting point, the judge considered the Surety's monitoring and supervision of defendant prior to her non-appearance after release on bail. However, the judge concluded that such factors were outweighed by the Surety's failure to make any reasonable efforts to effect the recapture or to intervene in the deportation proceeding, State v. Poon, supra, 244 N.J. Super. at 102, and such failure did not warrant the setting aside of the order of forfeiture. Simply stated, the judge concluded that the Surety did not carry its burden on the motion. We discern no reason to interfere with the judge's exercise of discretion in the matter.
In reaching our decision, we considered the recent decision of State v. Wilson, ____ N.J. Super. _______, (App. Div. ______ 2007) (slip op. 10-11), where we held for the purposes of exoneration or remittance of bail, the difference between non-appearing defendants found in custody of out-of-state and in-state correctional institutions has lost its significance, determining that State v. Erickson, 154 N.J. Super. 201 (App. Div. 1977) should no longer be considered a proper expression of the law. Because the consolidated cases in Wilson only involved defendants who had failed to appear for a court proceeding and were later apprehended and confined in another state, but were not deported, Wilson is not applicable.