On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-11-02016 and 03-06-01131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Payne and Sapp-Peterson.
Defendant surety, Harco National Insurance Company, appeals in these consolidated matters from two judgments against it, requiring forfeitures of bail upon the non-appearance of defendant, Pedro Valdez, for sentencing in two cases in which he had entered simultaneous pleas of guilty to drug offenses, for which the imposition of a prison term was mandatory. The surety argues on appeal that bail should have been revoked after entry of the guilty pleas to crimes requiring mandatory imprisonment, because the entry of the pleas resulted in a material increase in the risk, and that as a result, the surety should have been exonerated. We disagree and affirm.
The record establishes that defendant was arrested on April 8, 2003 and later charged in Indictment No. 1131-06-2003 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), third-degree distribution of cocaine to a police officer, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and third-degree distribution of cocaine to a police officer within 1,000 feet of a school, N.J.S.A. 2C:35-7. Following defendant's arrest, he was released from custody after posing a $50,000 surety bond with Harco. On July 18, 2003, defendant was again arrested and later charged in Indictment No. 2016-11-2003 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a, third-degree possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), third-degree possession with the intent to distribute cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-7, second-degree possession with the intent to distribute cocaine within 500 feet of a public building or park, N.J.S.A. 2C:35-7.1, fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3), second-degree possession with the intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(10), and third-degree possession with the intent to distribute marijuana within 1,000 feet of a school, N.J.S.A. 2C:35-7. Defendant posted a $150,000 surety bond with Harco and was again released on bail.
On March 24, 2004, defendant pled guilty to the third-degree school zone charge in Indictment No. 1131-06-2003, as well as the third-degree charge of possession with the intent to distribute marijuana within 1,000 feet of a school and the second-degree charge of possession with intent to distribute marijuana in Indictment No. 2016-11-2003. The prosecutor recommended a custodial sentence of five years, with thirty-six months of parole ineligibility on Indictment No. 1131-06-2003 and a cumulative concurrent custodial sentence of seven years, with forty months of parole ineligibility on Indictment No. 2016-11-03.
Defendant failed to appear for sentencing on March 28, 2004, bench warrants were issued, and bail was forfeited. Notice of the forfeitures was mailed to the surety on June 3, 2004, and on August 31, 2004, default judgments were entered on the forfeited recognizances. A motion to vacate the bail forfeitures and judgments was denied in orders dated January 24, 2007.
The issues raised in these appeals were recently addressed in our opinion in State v. Calcano, 397 N.J. Super. 302 (App. Div. 2007), certif. denied, 2008 N.J. LEXIS 404 (2008). There, we held that a defendant's guilty plea, under circumstances where a sentence of imprisonment was mandatory, did not materially change the surety's risk requiring revocation of bail once the plea was taken. We stated:
A bail recognizance . . . is "conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." R. 3:26-4(a). The "final determination" is the judgment of conviction entered at the time of sentencing. State v. Vendrell, 197 N.J. Super. , 236 [(App. Div. 1984)]. Thus, the Surety undertook an obligation to assure [defendant's] appearance up until the time of his sentencing. Because the Surety's undertaking continues until the defendant's appearance at sentencing, generally a guilty plea or conviction is not an enhanced risk requiring surrender and exoneration. [Id. at 307.]
In the present matter, the surety urges the applicability of State v. Ceylan, 352 N.J. Super. 139, 144 (App. Div.), certif. denied, 174 N.J. 545 (2002), a case in which we held the judge abused his discretion in denying the surety's application to require defendant's surrender and to permit the surety's exoneration on a bond, after defendant had been found guilty of an unrelated eluding charge carrying a mandatory prison term, he had posted a property bond to obtain his release pending sentencing, and then he had sought to adjourn his sentencing on that conviction. However, Ceylan is distinguishable because the increased risk was the result of other charges, and not the charge that was the subject of the bond. Moreover, in Ceylan the surety timely sought exoneration. It did not do so in the present case.
Here, the surety issued bonds to secure defendant's presence in court until final determinations of the charges in both indictments took place. The fortuity that defendant pled guilty to both at the same time upon receipt of a plea offer of concurrent sentencing does not, in our view, constitute a material change in the risk that the surety undertook in affording bail following defendant's two arrests.