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State v. Faswala


January 15, 2008


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 06-03-00310.

Per curiam.


Submitted December 17, 2007

Before Judges Lintner and Alvarez.

This is a bail forfeiture appeal in which Allegheny Casualty Company (Surety) appeals from an order denying the revocation of bail, and vacation of default judgment. We remand for further proceedings in accordance with this opinion.

The facts may be briefly recited. On February 16, 2005, the Surety posted a $50,000 bail bond to secure the release of a criminal defendant, Dr. Munir Faswala, who was arrested on multiple charges of unlawful dispensation of drugs, N.J.S.A. 2C:35-10.5. According to the Surety's agent Richard Sparano, the owner of AA Bail Bonds, Faswala did not report to Sparano's office as he was required to do, and he successfully avoided all efforts at contact. On March 12, 2005, Sparano received information that Faswala, who was born and raised in Pakistan, had been detained at the Canadian border in Buffalo, New York, while attempting to flee the United States. Sparano asserted in a certification that, as a result, his office contacted the Cumberland County Prosecutor's Office with the information. The prosecutor's office, however, refused to take any action to detain Faswala. Consequently, on the advice of counsel, Sparano filed a motion, returnable April 15, 2005, in the Law Division to vacate the bond and issue a warrant for Faswala's arrest.

Noting that there was no motion from the State to increase bail and Faswala had not yet missed a court date, the judge determined that he had no basis to issue a warrant for Faswala's arrest. At the motion hearing, the judge advised the representative from the prosecutor's office that if he wanted to help counsel for the Surety agent, then "do it."

According to the Surety, the prosecutor's office did nothing to intercede and, on April 11, 2006, Faswala's first scheduled court date, he failed to appear, thus resulting in the issuance of a bench warrant. Thereafter, the Surety received notice of bail forfeiture and default judgment. On October 17, 2006, the Surety filed its motion to vacate bail forfeiture and default judgment. At oral argument on the motion, the Surety argued that the border police contacted the prosecutor's office and the prosecutor's office failed to take any action to seek a warrant or revoke bail. As a result, according to the Surety, Faswala was released, permitting him to leave the jurisdiction and, ultimately, return to Pakistan.

The State argued that the Surety had not submitted a certification regarding its assertion that the prosecutor's office did nothing and did not appeal the prior order denying its motion to vacate bail and issue a warrant for Faswala.

The judge denied the Surety's motion, indicating that there was nothing before him to indicate that Faswala was in custody of the Surety when it moved earlier to vacate the bail.

On November 17, 2004, Administrative Directive #13-04, entitled "Revision to Forms and Procedures Governing Bail and Bail Forfeitures," was promulgated, containing Attachment F, remission guidelines (Guidelines). State v. Ramirez, 378 N.J. Super. 355, 366 (App. Div. 2005). The Guidelines provided for no remission where a defendant is a fugitive when a remission motion is made. Id. at 367; see also State v. Harmon, 361 N.J. Super. 250, 255-56 (App. Div. 2003) ("[W]here 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" and "if [a] defendant . . . is recaptured within four years of the date of his original non-appearance . . . the surety may renew its motion . . .

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

In State v. Weissenberger, 189 N.J. Super. 172, 176-77 (App. Div. 1983), we held that a bail bond surety is released from its undertaking, as a matter of law, if without notice to the surety and its agreement, the State creates an increased risk of non-appearance by modifying the surety's understanding with the defendant. See also State v. Vendrell, 197 N.J. Super. 232, 237 (App. Div. 1984). Here, the Surety essentially contends that the failure of the prosecutor's office to act, after being advised that defendant had absconded, is tantamount to just such an agreement.

It should be noted that under the guidelines minimal remission is afforded "'[w]here the surety provided minimal or no supervision while the defendant was out on bail and failed to engage in immediate substantial efforts to recapture the defendant.'" Ramirez, supra, 378 N.J. Super. at 367 (quoting Guidelines). We cannot tell from the record supplied what steps, if any, were taken by the Surety to recapture Faswala after it learned that he was detained by the border authorities. Likewise, the record does not provide any information as to whether the prosecutor's office, if notified as alleged by the Surety, increased the likelihood that Faswala would not appear by allowing the border authorities to release him. If the prosecutor's office allowed the border authorities to release Faswala by advising that it would not seek his return, such action could be construed as increasing the risk of Faswala's non-appearance, which would support revoking bail. Otherwise, it can be assumed that Faswala's non-appearance resulted from the Surety's failure to take appropriate steps to recapture Faswala, after learning of his detention, in which case the bail should not be revoked.

Accordingly, we are satisfied that a remand is in order to afford the Surety an opportunity to establish, by way of a plenary hearing if necessary, that Faswala was released by the border authorities as a result of either an expressed or implied agreement on the part of the prosecutor's officer that it would not seek his return. We do not retain jurisdiction.



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