On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-00-5397.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2012
Before Judges Sabatino and Ashrafi.
Appellant Allegheny Casualty Company, which issued a bail bond to secure the release of defendant Luz Osorio from custody on State charges, appeals from a January 31, 2011 order of the Law Division denying its motion to vacate or remit forfeiture of the bail. Allegheny contends on appeal that the Law Division failed to consider and apply binding Supreme Court authority, State v. Ventura, 196 N.J. 203 (2008).
We agree that Ventura is controlling law in the factual circumstances of this case. However, the record in the Law Division contains no indication that Allegheny cited the case or brought it to the court's attention in support of its motion to vacate or remit bail forfeiture. Despite Allegheny's failure to make the argument it now raises for the first time on appeal, we are constrained to reverse the order denying remission and remand to the Law Division to reconsider Allegheny's application.
Defendant Osorio was arrested on November 9, 2009, and charged with State crimes involving false identification documents. On the same date, Immigration and Customs Enforcement (ICE), an agency of the United States Department of Homeland Security, placed a detainer against her release with the Atlantic County Sheriff's Department. On November 21, 2009, apparently unaware of the ICE detainer, Allegheny issued a bail bond for $15,000 to secure Osorio's release on the State charges.
Osorio was released on bail on November 24, 2009, but she was immediately taken into custody by ICE. The federal government deported her to Colombia on December 9, 2009. As a result, she failed to attend court on the Atlantic County charges on March 1, 2010. The court issued a warrant for her arrest and forfeited the bail.
Allegheny moved to vacate or remit the bail forfeiture, stating in a certification of the bail bondsman that Osorio had been deported. The court denied Allegheny's motion and, later, its motion for reconsideration. The court commented that it could not "legally help" Allegheny because Osorio was still a fugitive and had not been recaptured or returned to Atlantic County for proceedings on the State charges.
Bail forfeitures and remissions are governed by N.J.S.A. 2A:162-8 and Rule 3:26-6. The statute and the rule permit the court to set aside a forfeiture in whole or in part. State v. Ramirez, 378 N.J. Super. 355, 364 (App. Div. 2005); State v. de la Hoya, 359 N.J. Super. 194, 198 (App. Div. 2003). "The matter of remission lies essentially in judicial discretion." State v. Peace, 63 N.J. 127, 129 (1973).
In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we listed factors relevant to the court's exercise of that discretion, and in Peace, supra, 63 N.J. at 129, the Supreme Court approved consideration of those factors. At a later time, and after development of additional precedents on the issue of bail remission, the Administrative Office of the Courts issued guidelines to assist trial courts in determining the amount of forfeited bail that should be remitted. See Supplement to Directive #13-04, (issued Nov. 12, 2008), available at www.judiciary.state.nj.us/directive/2008/dir_13-04_ Supplement_11_12_08.pdf.
Citing case law, the administrative directive outlines policy concerns, in particular, providing an incentive for a surety to recapture a fugitive and avoiding commercial sureties from being overly cautious in issuing bail bonds. Id. at 1. The directive lists the relevant factors a trial court should weigh when deciding a remission request and provides guidance in balancing those factors.*fn1 Id. at 1-4. The directive includes three remission schedules that courts should use as "a starting point when determining whether to grant a remission . . . and . . . the amount to remit." Id. at 4-8. Remission Schedule 1 states: "Where the defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate." Id. at 6 (citing State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003)). The directive recognizes, however, that there may be exceptions to denial of remission even where a defendant is still a fugitive. Ibid.
In Ventura, supra, 196 N.J. at 216, the Supreme Court established such an exception in factual circumstances where a defendant is deported after being released on bail. The Court stated:
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 a defendant is unable to attend court, a crucial factor that the trial court should consider is whether the defendant was a fugitive from New Jersey at the time of deportation. That is, whether the defendant while compliant with the terms of his or her release, voluntarily attended a deportation hearing or was brought there by the authorities and thereafter was deported; or, whether the defendant was a fugitive when captured and then ...