May 12, 2008
STATE OF NEW JERSEY COUNTY OF BERGEN, PLAINTIFF-RESPONDENT,
ANTONIO DOS SANTOS, DEFENDANT, AND SIRIUS AMERICA INS. CO., SURETY, DEFENDANT-APPELLANT.
On appeal from the Superior Court Of New Jersey, Law Division, Bergen County, Indictment No. 02-07-01674-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2008
Before Judges Stern and A.A. Rodríguez.
On this appeal from an order of April 19, 2007 denying its motion "for remittitur," the surety argues:
THE DETERMINATION OF THE TRIAL COURT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHERE, AS HERE, THE SURETY PRESENTED CREDIBLE EVIDENCE TO SUPPORT ITS CONTENTION THAT DEFENDANT IS DEAD, WHICH EVIDENCE WAS NOT REFUTED BY ANY CREDIBLE EVIDENCE FROM ANY OTHER PARTY.
BASED ON THE CIRCUMSTANCES OF THIS CASE, AND THE INFORMATION PRESENTED BY THE SURETY, IT IS APPROPRIATE FOR THE COURT TO REMIT SOME PORTION OF THE PREVIOUSLY FORFEITED FUNDS TO THE SURETY.
IT WAS APPROPRIATE FOR THE COURT TO ADDRESS THE QUESTION OF DEFENDANT'S DEATH, AND THE IMPACT OF OF HIS DEATH ON THE REMISSION OF FUNDS TO THE SURETY.
We reject the contentions, and affirm the order.
We have previously affirmed the denial of the surety's application for vacation of judgment and partial remission. See State v. Ramirez, 378 N.J. Super. 355, 371 (App. Div. 2005), which sets out the standards governing vacation of judgment and the granting of a partial remission in this case. Id. at 362-69. We note, among other things, that the death certificate most recently submitted to the Law Division was accompanied by a certification of our Vice Consul in Brazil who attested that the translation of the death certificate was by a "sworn public translator," but not that the death certificate was genuine.
Nor did the affidavits of Gustavo Rugani do Couto e Silva, dated August 15, 2006 and December 20, 2006, satisfy N.J.R.E. 902.
We agree with the surety that a post-judgment remission can be awarded when the facts and equities require same, and that the amount should turn on the factors embodied in case law. See, e.g., State v. Ramirez, supra, 378 N.J. Super. at 363-69. That is so even if defendant is located outside the country.
See State v. Poon, 244 N.J. Super. 86, 97-103 (App. Div. 1990) (defendant had been deported). However, here the judge noted "there is nothing to link . . . the fugitive defendant to the deceased in Brazil," that there were inconsistencies in the death certificates submitted to him, that in the latest submission the Vice Counsel attested "to the signature of the translation, not to the signature and official position of the foreign official on the death certificate," and that the surety did not satisfy its burden of convincing the court "by a preponderance of the evidence, that Antonio Dos Santos is deceased," or was the "person who died in Brazil on April 4, 2003."
There is nothing in the record to suggest that the motion judge precluded a post-judgment remission or consideration of the application now before us based on our prior opinion or merely because defendant died in a foreign country after he became a fugitive. In fact, the judge's decision of March 28, 2007 reflects that he recognized our prior opinion suggested that "should the surety unearth new information then they may resubmit its motion for the Court to decide," and that he dealt "with the evidence presented." The decision before us is one based on the proofs presented, and we cannot conclude that the judge abused his judicial discretion in denying the application. See State v. Ramirez, supra, at 364; see also, e.g., State v. Peace, 63 N.J. 127, 129 (1973); State v. de la Hoya, 359 N.J. Super. 194, 198-99 (App. Div. 2005); State v. Poon, supra.
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