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State v. Borbon

March 11, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE BORBON, DEFENDANT, AND ACCREDITED SURETY & CASUALTY COMPANY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-06-00093.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Parker and Yannotti.

Accredited Surety & Casualty Co. (Surety) appeals from an order entered on October 27, 2007 denying its motion to vacate forfeiture of the $50,000 bail bond it had posted for defendant Jose Borbon. We reverse and remand.

When Borbon failed to appear on March 15, 2006, a notice of bail forfeiture was sent to Surety. On May 28, 2006, Surety moved to extend the time to produce defendant. On June 12, 2006, however, the trial court entered a default against Surety forfeiting the bail.

More than three months later, Surety again moved to extend the time to produce defendant. Surety claims that in the interim, it contacted the county on December 13, 2006, and informed the county that defendant was in the Dominican Republic. Subsequent investigations by Surety in January and July 2007 revealed the exact address and telephone number for defendant in the Dominican Republic. On August 1, 2007, Surety filed a supplemental affidavit regarding defendant's whereabouts. Based on Surety's supplemental affidavit, the county filed a "Red Notice" extradition application with INTERPOL on August 13, 2007.

A hearing was held on September 19, 2007, at which time the county argued that it was Surety's obligation to return defendant to the jurisdiction. The trial court agreed with the county and rendered its decision on the record. In its decision, the trial court stated that Surety "didn't do what ultimately [it was] supposed to do which is produce [defendant]." On October 29, 2007, the trial court entered an order denying Surety's motion to vacate the default.

The county acknowledges that Surety located defendant and provided his address in the Dominican Republic, where he had fled pending prosecution. The county represents that the State filed the appropriate applications with INTERPOL and that defendant could be returned to the county on that basis. Both parties argue that State v. Poon, 244 N.J. Super. 86 (App. Div. 1990), applies. In Poon, we held that bail could not be forfeited when the defendant, who had been deported, could not be returned to New Jersey. Id. at 101. The county argues that since defendant was not deported, Surety was not relieved of its obligation to return him to New Jersey. Surety, however, argues that the trial court did not consider all of the factors necessary for forfeiting bail.

In rendering its decision, the trial court gave a brief statement of reasons:

I understand you can't go and get him and -- and the prosecutor may be able to get him. However, this is a lot different than a recent case where even though he was still a fugitive he was in some other state's jail.

Here, it's another country, a foreign jurisdiction and treaties aside we know of many situations where it becomes difficult to get people back from other countries and there's no guarantee that this individual will be brought back from another country. Therefore, your motion . . . is denied.

In this appeal, Surety argues that the trial court erred in (1) forfeiting the entire amount of bail; and (2) failing to articulate its consideration of the required factors on the record.

A party seeking to set aside a bail forfeiture bears the burden of proving that "it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000) (quoting State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)). There are "over-arching" policy concerns to be considered in determining whether to set aside a forfeiture. State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). They include (1) the necessity of providing an incentive for the surety to take active and reasonable steps to recapture the defendant; and (2) ...


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