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State v. Calcano

December 20, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIS CALCANO, DEFENDANT, AND LEXINGTON NATIONAL INSURANCE COMPANY, SURETY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Ind. No. 02-01-00063.

The opinion of the court was delivered by: Chambers, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 27, 2007

Before Judges Coburn,*fn1 Fuentes and Chambers.

Appellant, Lexington National Insurance Company (the "Surety"), appeals from the order of February 2, 2007, denying its motion to vacate a bail forfeiture. The Surety contends that bail should have been revoked when defendant Kelvis Calcano failed to keep in contact with the Surety, a condition of his bail, and that bail also should have been revoked when Calcano pled guilty to the offense and faced a mandatory prison sentence. We find no abuse of discretion in the continuation of bail under the circumstances present and affirm.

On August 23, 2001, the Surety posted a bail bond in the sum of $50,000 for Calcano, who was charged with certain drug offenses. By the end of November 2001, Calcano stopped keeping in touch with the Surety as required in the conditions of his bail. As a result, the court issued a bench warrant on December 20, 2001, for his failure to comply with bail conditions. The Surety was able to locate Calcano who was brought before the court on January 29, 2002, for a bail revocation hearing. Since Calcano had not missed a court date and a change in his residence appeared to have contributed to the problem, the court declined to revoke bail, despite objections of the Surety. The court advised Calcano that if he failed to report to the Surety as required, another bench warrant would be issued and bail would then be revoked.

On April 26, 2002, Calcano pled guilty to first-degree possession of a controlled dangerous substance with intent to distribute. He faced a sentence that would include a mandatory two-year period of parole ineligibility. The plea document he signed indicated that the prosecutor would recommend a sentence of ten years with the two years of parole ineligibility. After the plea was taken, neither the State nor the Surety moved to revoke bail.

Calcano failed to appear for his sentencing scheduled for September 13, 2002, and his bail was forfeited on that same day. The Surety was given the requisite notice of the bail forfeiture pursuant to Rule 3:26-6(a), and a default judgment on the forfeiture was entered against Calcano and the Surety for the sum of $50,000. The Surety's motion to vacate the bail forfeiture and judgment was denied by order dated February 2, 2007. Calcano still remains at large.

On appeal, the Surety contends that the trial court should have revoked Calcano's bail at the hearing on January 29, 2002, after Calcano had lost contact with the Surety. The Surety further argues that Calcano's bail should have been revoked on April 26, 2002, when he pled guilty to the charges and faced mandatory imprisonment. We reject these arguments.

A bail bond is essentially a surety agreement in which the defendant is the principal and the State is the creditor; the agreement is subject to the same legal principles applicable to the construction and consequences of surety agreements in general. State v. Weissenburger, 189 N.J. Super. 172, 176 (App. Div. 1983). A surety is bound "according to the strict terms of its undertaking," and "its obligation cannot be extended or altered beyond the terms of its agreement." State v. Clayton, 361 N.J. Super. 388, 395 (App. Div. 2003).

The surety will be discharged as a matter of law where the agreement has been modified without notice and consent and where the modification "materially increases his risk." State v. Vendrell, 197 N.J. Super. 232, 237 (App. Div. 1984); State v. Weissenburger, supra, 189 N.J. Super. at 176 (discharging surety due to a material change in the risk created by an agreement between prosecutor and defendant requiring defendant to participate in an undercover operation and allowing defendant to flee the jurisdiction if an emergent threat to his life were present). Modifications that do not materially change the risk are permissible. See State v. Tuthill, 389 N.J. Super. 144, 149-50 (App. Div. 2006), certif. denied, 192 N.J. 69 (2007) (citing a collection of out-of-state cases where the modification did not substantially increase the risk of defendant's nonappearance and so the surety's obligations under the bail bonds were not discharged).

The Surety maintains that the trial court should not have continued Calcano's bail at the hearing on January 29, 2002. At that hearing, Calcano had been brought before the court because he had failed to keep in contact with the Surety, in breach of a condition of his bail bond. At that point, however, Calcano had not missed a court appearance. While forfeiture of bail may be appropriate for breach of a nonappearance condition of a bail bond, the primary purpose of bail is to secure defendant's appearance at court. State v. Korecky, 169 N.J. 364, 375-76 (2001). The trial court must therefore "weigh carefully the totality of the circumstances," when imposing nonappearance conditions, and it should "exercise the authority to forfeit a bond for a breach of such a condition sparingly." Id. at 384 (emphasis added) (allowing forfeiture where defendant twice threatened adverse witnesses in contravention to condition of bail prohibiting contact with these witnesses).

Under the present circumstances, where Calcano had kept in touch with the Surety for a lengthy period of time before losing contact and where Calcano had not missed any court appearances, the judge was well within her discretion to continue bail for him. The circumstances did not amount to a material change in ...


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