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State v. Fajardo-Santos

July 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MANUEL A. FAJARDO-SANTOS, DEFENDANT-RESPONDENT.



On appeal from 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).

In this appeal, the Court addresses the issue of a court's authority to modify bail after federal authorities lodge a detainer against an undocumented immigrant in a criminal case.

Defendant Manuel Fajardo-Santos, a thirty-year-old native of Honduras, was arrested and charged with first-degree aggravated sexual assault and third-degree endangering the welfare of a child. On the face of the complaint/warrant, bail was set at $75,000, "no 10%." The complaint also stated that there was reason to believe defendant was an "illegal immigrant." Defendant was committed to the Morris County Correctional Facility in lieu of bail on August 26, 2008. At a mandatory bail review hearing the next day, the Hon. John B. Dangler, J.S.C., reviewed and maintained defendant's bail, pursuant to Rule 3:26-2(c). Defendant remained in jail afterward.

Pursuant to a directive from the Attorney General, county officials notified U.S. Immigration and Customs Enforcement (ICE) about defendant's arrest and immigration status some time after his arrest. On December 9, 2008, defendant was indicted on first-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of a child. Defendant faces a possible sentence of up to twenty years on the first-degree charge, and up to ten years on the second-degree violations. The sexual assault charges are subject to the No Early Release Act, which would require defendant to serve eighty-five percent of his sentence before being eligible for parole.

On December 18, 2008, nearly four months after defendant's arrest, ICE lodged a detainer against him at the Morris County Correctional Facility. Defendant was arraigned and posted bail on the Morris County charges on January 7, 2009. He used a professional surety to post a $75,000 bond. Defendant was released from state custody on January 12, 2009, and, pursuant to the detainer, was turned over to ICE. ICE, in turn, placed him in federal custody pending removal proceedings. An ICE assistant field office director informed a captain at the Prosecutor's Office that defendant's removal from the United States seemed "likely."

On January 13, 2009, the State moved to increase defendant's bail, arguing that the detainer increased the risk of non-appearance. Judge Dangler agreed and, over defendant's objection, exonerated the original bail and set bail anew at $300,000, cash only. ICE then honored an order to produce, issued by the trial court, and returned defendant to state custody.

On January 20, 2009, defendant filed an emergent application for leave to appeal. The Appellate Division granted the application and ruled in defendant's favor one week later, concluding that the lodging of the detainer in this case was not a changed circumstance because the Prosecutor was aware of this possibility. The panel therefore summarily reversed and reinstated the initial $75,000 bail.

The Appellate Division's order was stayed, first by the Appellate Division and then by this Court. On February 24, 2009, the Supreme Court granted the State's motion for leave to appeal. The Court also granted amicus curiae status to the Attorney General of New Jersey and the County Prosecutor's Association.

Held: Federal authorities exercised their discretion in lodging a detainer against defendant. That increased the risk that he would not appear at trial. The trial judge then properly responded to a change in circumstances by increasing defendant's bail.

1. When New Jersey law enforcement officials arrest someone for an indictable offense and have reason to believe the person is an undocumented immigrant, they must notify ICE. ICE then determines on its own if the arrestee is subject to removal from the United States and may then issue a detainer. Ultimately, an immigration judge conducts proceedings and decides whether the alien is removable. If the immigration judge enters an order of removal, the Attorney General "shall remove" the alien promptly. Notwithstanding defendant's argument that 8 C.F.R. §§ 215.2 and.3 provide a mechanism for state prosecutors to delay removal of defendants with pending criminal charges, the possibility of a future conviction on pending state charges is not a reason to delay removal. Those provisions focus on aliens seeking to depart the United States voluntarily, and not deportation or removal cases. Defendant's reading of sections 215.2 and.3 conflicts with the statutory obligation imposed on the executive branch in removal cases. However, no conflict is present when the regulations are applied to aliens who are free to depart the United States rather than illegal aliens being removed by ICE. (Pp. 8-13)

2. Article I, paragraph 11 of the State Constitution guarantees that "[a]ll persons shall, before conviction, be bailable by sufficient sureties." In setting the proper amount of bail, courts seek to ensure the presence of the accused at trial. Just as a defendant has a right to a reasonable bail, the public and victims of crime in particular have an interest in a fair and meaningful trial, with the defendant present in the courtroom. Judges engage in fact-sensitive analysis in setting bail. If those facts change, in light of relevant new evidence or changed circumstances, judges may entertain requests to modify bail. The amount of bail can then be increased, reduced, or left alone, consistent with the overriding aim of ensuring a defendant's presence at trial. When bail is set, it is entirely appropriate to consider a defendant's immigration status in evaluating the risk of flight or non-appearance. The filing of a detainer signifies ICE's commitment to remove an alien. As a result, a detainer places the custodial agency and the defendant on notice that what was once a theoretical possibility of deportation has become a concerted effort by the federal government to achieve that outcome. The lodging of a detainer, thus, marks a change in circumstances that can affect whether a defendant will fail to appear. Judges may therefore consider that development in deciding whether to modify bail. The Appellate Division, responding to an emergent appeal without full briefing, mistakenly assumed that the lodging of a detainer is readily predictable whenever county officials make a referral to ICE. That is not the case. ICE's decision to lodge a detainer is discretionary, and is not subject to judicial review. ICE's exercise of discretion lends further support to treating a detainer as a new consideration in the bail analysis. (Pp. 13-17)

3. Prosecutors, however, must make timely applications to increase bail once a detainer is lodged. Otherwise, defendants may suffer a monetary loss that can and should be avoided. There may be exceptional circumstances in which ICE lodges a detainer, the defendant posts bail, and prosecutors then seek an increase in bail. In those situations, prosecutors should provide reasons for the delay. (Pp. 17-18)

4. The Court sees no reason to disturb the trial court's judgment. The court responded reasonably to the detainer lodged and the increased risk of non-appearance it presented. The Court also finds no evidence of bad faith in the manner the case was handled by the prosecutor's office, which moved to increase bail one day after it was posted when the office learned from ICE that defendant's removal seemed "likely." (Pp. 18-20)

The judgment of the Appellate Division is REVERSED and bail is REINSTATED at $300,000.

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

The opinion of the court was delivered by: Chief Justice Rabner

Argued April 28, 2009

The primary purpose in setting bail is to ensure a defendant's presence at trial. With that in mind, judges consider various factors before fixing a specific amount of bail. If the circumstances underlying that decision change, an increase or reduction in bail may be appropriate.

In this case, after bail was set for an undocumented immigrant in a criminal case, federal authorities lodged a detainer against him. That set in motion a process that was expected to lead to defendant's removal from the United States before trial. Next, after defendant had already posted a bond, the prosecutor successfully sought an increase in bail by arguing there was an increased risk defendant would not appear at future court proceedings.

On an emergent appeal, the Appellate Division reinstated the initial, lower bail. The panel reasoned that because defendant's immigration status was known at the start of the case, and his possible removal was foreseeable, there was no change in circumstances justifying an increase in bail.

We disagree. Federal authorities exercised their discretion in lodging a detainer against defendant. That increased the risk that he would not appear at trial. The trial judge then properly responded to a change in circumstances by increasing defendant's bail.

In the future, if prosecutors intend to move for higher bail after a detainer is lodged, they should not wait until after a defendant posts bail. Because there was no evidence of bad faith in the timing of the request in this case, we reverse and reinstate the higher bail.

I.

On or about August 24, 2008, defendant Manuel FajardoSantos, a thirty-year-old native of Honduras, spent the night at his girlfriend's home. While there, he allegedly sexually molested his girlfriend's nine-year-old sister. The following day, the local police charged defendant with first-degree aggravated sexual assault and third-degree endangering the welfare of a child. On the face of the complaint/warrant, bail was set at $75,000, "no 10%," -- that is, defendant was required to secure the full ...


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