On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-00084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Defendants Damian Garcia and Baltazar Constantino failed to appear for a scheduled court appearance one year after posting bail. Following forfeiture of each bail, the surety, Safety National Casualty Corporation (Safety National), moved for remission of bail. Safety National appeals from the orders denying its motions for remission of forfeiture. We affirm.*fn1
Damian Garcia posted $200,000 bail and was released from jail on August 23, 2007. Baltazar Constantino posted $225,000 bail and was released from jail on July 14, 2007. Garcia and Constantino had been charged with possession of more than 50 grams of marijuana, in violation of N.J.S.A. 2C:35-10a(3); manufacturing, distributing or dispensing marijuana in a quantity of twenty-five pounds or more, in violation of N.J.S.A.
2C:35-5b(10)(a); and conspiracy in violation of N.J.S.A. 2C:5-2a(1), based on their involvement in a marijuana smuggling and distribution operation. One year later, on August 25, 2008, Garcia and Constantino failed to appear at a scheduled court appearance and the court entered an order forfeiting their bail. Safety National received notices of forfeiture of bail. On November 24, 2008, the court entered a "Default Judgment on Forfeited Corporate Ball Bonds and Notice of Removal."
Several months later, Safety National filed a motion to remit the forfeiture. Safety National relied on the September 23, 2009 certification of Said Said, the owner of Fugitive Warrant Enforcement (FWE). Said related that FWE had been retained to locate Garcia and Constantino, the men were father and son, and living in Ranch Laguna Prieta, Mexico. He reported how he obtained this information and provided a telephone number through which his informant had recently attempted to speak to Garcia. After further investigation, Said related that a sister-in-law of Garcia provided him with a specific address where Garcia and Constantino resided and a telephone number at which they could be reached. The telephone number was the same number provided to Said by his initial informant. Said also reported that on September 20, 2009, an agent sent to Mexico by FWE located both men at the address provided in the certification.
By order dated November 30, 2009, Judge Donio extended the arrest warrants for both defendants, and further ordered the State to advise the court by February 15, 2010, whether the State intended to seek extradition of defendants. Judge Donio also stayed forfeiture of the bail posted by each defendant until further of the court. By order dated April 6, 2010, Judge Donio continued the stay and required the State to prepare and submit estimates of the reasonable expenses to return defendants to this State. The State never produced a cost estimate.
Finally, following a further hearing on June 21, 2010, Judge Donio denied Safety National's motion to remit the forfeiture of each bail. In his oral opinion, after appropriately chastising the State for failing to submit a cost estimate as ordered, Judge Donio determined not to remit any portion of the forfeiture. He reasoned that Safety National failed to submit any information about the nature and extent of supervision between the time it posted bail for each man and their non-appearance at a scheduled court event a year later. He also noted that there was some uncertainty concerning the location of defendants and questioned his authority to challenge the State's decision not to dedicate financial and human resources to extradite defendants. Finally, he emphasized that the continuing absence of defendants from the jurisdiction and the inability of the State to resolve the criminal charges against them due to their flight counseled heavily against granting any relief to Safety National.
On appeal, Safety National argues that the decision to deny remission is inequitable due to the State's refusal to make any effort to retrieve defendants from Mexico. It also contends that defendants' fugitive status in Mexico counsels in favor of remission and it should be relieved from the bail forfeiture when its capacity to return defendants is legally impossible. The State emphasized that defendants are fugitives, and their presence in Mexico was the product of flight to avoid prosecution rather than a deportation proceeding.
Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission are matters within the sound discretion of the trial judge. State v. Peace, 63 N.J. 127, 129 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007); State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000). This discretion is not unguided.
In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we observed that the decision to remit bail and the amount of the remission are equitable in nature, and the judge should consider at least eight identified factors. Those factors include the corporate or private status of the surety, the nature and extent of supervision by the surety while the defendant is released on bail, the surety's efforts to return the defendant to custody, the time between the failure to appear and the return to custody, the prejudice to the State attributable to the absence of the defendant, the expense incurred by the State due to the absence of the defendant, and reimbursement of expenses incurred by the State. Ibid. The Supreme Court implicitly approved these factors and further noted that "[t]here is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case." Peace, supra, 63 N.J. at 129.
The Administrative Office of the Courts promulgated Directive #13-03, that includes a set of guidelines (the Guidelines) for the handling of requests for remission from bail forfeiture.*fn2 The initial version of the Directive was issued in December 2003, and reflected the legislation, court rules and case law governing admission to bail, forfeiture of bail, and application for remission of forfeiture. The Guidelines were reissued in Directive #13-04 in November 2004 in the same form. The October 2007 and the November 12, 2008 supplements to Directive #13-04 reflect subsequent rulings, including State v. Ventura, 196 N.J. 203 ...