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State v. Ventura

August 5, 2008

STATE OF NEW JERSEY (COUNTY OF BERGEN), PLAINTIFF-RESPONDENT,
v.
NAZARIO VENTURA, DEFENDANT, AND SAFETY NATIONAL CASUALTY CORPORATION, AS SURETY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY (COUNTY OF MIDDLESEX), PLAINTIFF-RESPONDENT,
v.
LEIDY GRANADOS, DEFENDANT, AND LEXINGTON NATIONAL INSURANCE CORP., (SURETY), DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

For the purposes of this opinion, the Court consolidates these companion cases and addresses whether it was error to deny the motion of the respective sureties to remit the forfeited bail.

State v. Ventura

In 2005, Nazario Ventura was arrested in Bergen County on weapons and narcotics charges. Safety National Casualty Corporation (Safety), a corporate surety authorized to underwrite bail bonds, posted a $150,000 bond for Ventura's pre-trial release. After Ventura failed to appear for a scheduled court date, the trial court issued a bench warrant for his arrest and declared the bail forfeited. On June 15, 2005, the trial court sent Safety a notice of bail forfeiture and instructed Safety that it had seventy-five days to move to set aside the bail forfeiture or suffer a default judgment in the full amount of the bail. In a letter dated December 7, 2005, Safety responded that it would pay the judgment by December 20, 2005. Safety assigned the matter to a recovery agent to recover Ventura. The investigation revealed that Ventura had fled to Canada to be with his wife. On December 13, 2005, the recovery agent reported to the Bergen County Prosecutor's Office Fugitive Unit that Ventura was incarcerated in Montreal on immigration violations and had been incarcerated there since August 2005. A detainer was placed on Ventura by Bergen County.

On December 19, 2005, Safety filed a Motion to Stay the Entry of Judgment and to Vacate the Forfeiture and/or Judgment, Exonerate the Surety, and Discharge the Bond. The motion included a letter from the recovery agent confirming Ventura's incarceration in Montreal on immigration violations. The letter further stated that Bergen County holds a warrant for detainer and that Ventura would be extradited back to Bergen County within a few months. On February 23, 2006, the trial court denied the motion without prejudice, expressly providing in the order that Safety could renew its motion on Ventura's return to the United States.

On June 30, 2006, after learning that Ventura had been deported to the Dominican Republic, Safety filed a second motion for bail remission. The motion included a letter from the recovery agent explaining that he had received information from Bergen County that Ventura had been deported to the Dominican Republic. In a follow-up letter, the recovery agent explained that the Canadian Marshals Service had notified Bergen County authorities that it had deported Ventura to the Dominican Republic; that the U.S. Marshals Service had advised Bergen County officials that Bergen County could bring Ventura back to the United States; and that Bergen County had stated that it would commence the process of securing Ventura's return.

On August 2, 2006, the trial court heard and denied Safety's motion, concluding that Ventura remained in the Dominican Republic, and that Safety failed to produce him in court. On appeal, the Appellate Division affirmed, concluding that the denial of remission was appropriate because Ventura remained a fugitive. The panel also noted that its conclusion was consistent with Directive #13-04: Revision to Forms and Procedures Governing Bail and Bail Forfeitures (hereinafter Guidelines) issued by the Administrative Director of the Courts concerning bail and bail forfeiture.

State v. Granados

On October 4, 2004, Leidy Granados was arrested in Middlesex County for possession of stolen goods. Lexington National Insurance Company (Lexington) posted a $40,000 bond to secure her pretrial release. Lexington supervised Granados via telephone calls, mail correspondence, and personal visitations. When Granados failed to appear at the surety's office for a regularly scheduled visit, Lexington began an investigation to locate her. Granados could not be found and she missed a status conference on December 10, 2004. The trial court issued a bench warrant for her arrest and ordered the bail forfeited.

It was learned by the Middlesex County Prosecutor's Office -- Fugitive Task Force Unit (Middlesex County) that Granados had been arrested and was being held at the Randolph County Jail in Asheboro, North Carolina. That same day, Middlesex County faxed a copy of the bench warrant to the Randolph County Jail asking that it be given the same effect as a detainer. Several weeks later, Middlesex County lodged a formal detainer with the Randolph County Jail. On January 6, 2005, Lexington filed a motion to vacate the bail forfeiture. As part of its motion, counsel certified that Granados was incarcerated in North Carolina and that Middlesex County had lodged a detainer. Shortly thereafter, Middlesex County received notice that Granados was transferred to the custody of the U.S. Marshals Service and lodged a detainer with that office. On June 2, 2005, the trial court heard and denied Lexington's motion, finding Lexington liable for the full amount of the bond.

On June 8, 2006, the U.S. Marshals Service informed Middlesex County that it could not locate Granados. Middlesex County contacted a United States Immigration and Customs Enforcement (ICE) field office in New Jersey. Further investigation revealed that Granados had been deported to Colombia on June 23, 2005. After learning of the deportation, Lexington filed a second motion to vacate the bail forfeiture. Lexington submitted a certification describing what had occurred and a copy of a letter from a deportation officer stating that Granados had been deported to Colombia on June 23, 2005 by ICE. The trial court found that Lexington had failed to intervene in the deportation proceedings against Granados and, in light of her continued absence, denied the remission motion.

Lexington appealed and the Appellate Division affirmed, concluding that the trial court considered the equities of the parties and did not abuse its discretion in denying remission because previous efforts to supervise and recapture were outweighed by Lexington's failure to intervene in Granados' deportation proceedings.

The Supreme Court granted certification in both cases.

HELD: A motion for remission of forfeited bail is assessed in a fact-sensitive manner, weighing a multitude of factors outlined in State v. Hyers and its progeny. A crucial factor in every bail remission case is whether the defendant remains a fugitive. In each of these cases, there was no abuse of discretion in the denial of the separate motions to remit the forfeited bail.

1. Rule 3:26 generally sets forth the guidelines concerning bail. Forfeiture may be vacated, in whole or in part, if its enforcement is not required in the interests of justice on such conditions as the court imposes. A party seeking to set aside the judgment bears the burden of proving that remission is justified. The decision to remit and the amount of remission lies essentially in the discretion of the trial court. (Pp. 9-12)

2. State v. Hyers offered a list of factors the trial court should consider before granting or denying bail remission. Those factors include: whether the applicant is a commercial bondsman; the surety's supervision over the defendant; the surety's efforts to ensure return of the fugitive; the time elapsed between the missed court appearance and the return to court; the prejudice to the State because of the defendant's absence, if any; expenses incurred by the State; and whether reimbursement of expenses would adequately satisfy the interests of justice. In State v. Peace, the Court adopted the Hyers factors as a blueprint to assist courts in deciding bail remission matters. Recently, the Appellate Division has added other relevant factors that a trial court should consider when evaluating a remission motion, including the surety's efforts in securing the return of the defendant. (Pp. 12-15)

3. The Guidelines provide the trial court with starting points for an appropriate analysis in a bail remission proceeding. The first starting point presumes that remission is inappropriate where the defendant remains a fugitive at the time the remission motion is made. The second starting point addresses the situation where the defendant is no longer a fugitive and did not commit a new crime. In those circumstances, the Guidelines envision minimal, partial, or substantial remission depending on the surety's supervision of the defendant while on bail and/or the surety's efforts to recapture the defendant upon non-appearance. The percentage of recovery depends on the actions of the surety in supervision and attempted recapture. Under the third starting point, the Guidelines presume that the defendant is not a fugitive at the time the remission motion is made but has committed a new crime after being deemed a fugitive. In those circumstances, the corresponding percentage ranges are significantly reduced to reflect the public injury caused by the commission of a new crime. (Pp. 15-17)

4. As evidenced by case law and the Guidelines, the decision to remit bail is fact-driven and involves the consideration of a multitude of factors. In most cases, remission of bail will not be appropriate unless the defendant has been returned to the jurisdiction of the court. Nevertheless, when deportation is the sole reason for a defendant's failure to appear, a crucial factor the trial court should consider is whether the defendant was a fugitive from New Jersey at the time of deportation. If the defendant was a fugitive prior to deportation, remission generally should be denied. (Pp. 17-21)

5. The Court is satisfied that the trial court in Ventura did not abuse its discretion in denying Safety's bail remission motion. Pursuant to the Guidelines and Ventura's status as a fugitive at the time of his deportation, denial of the bail remission motion was proper. Likewise, the court in Granados did not abuse its discretion in denying Lexington's motion for remission of bail forfeiture, especially in light of the fact that Lexington failed to intervene in the deportation proceedings against Granados. In addition, Granados was arrested on new charges while released on bail and was a fugitive at the time of deportation. (Pp. 21-25)

The separate judgments of the Appellate Division in State v. Ventura and State v. Granados are AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued May 6, 2008

We consolidate these companion cases for the purpose of this opinion and address whether it was error to deny the motion of the respective sureties to remit the forfeited bail. In both cases, a corporate surety posted bail to secure the pretrial release of a defendant who, upon being released from jail, failed to appear at a scheduled court proceeding. A bench warrant was issued for each defendant, and the bails were deemed forfeited. Upon learning of the forfeiture, the surety in one case discovered that the defendant was incarcerated in Canada, and the surety in the other case discovered that the defendant was incarcerated in North Carolina. Despite New Jersey authorities placing a detainer on each defendant, the ...


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