On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-06-01075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
First Indemnity of America Insurance Company (First Indemnity) appeals from an order of the Law Division denying its motion to vacate the forfeiture, exonerate the surety, and discharge the bond. We affirm.
Defendant Hallan Arceo-Reyes was arrested on October 14, 2009, for his alleged involvement in a drug distribution operation with several others. During his processing following the arrest, defendant provided pedigree information about himself and his family, including that he was born in Mexico, but was a United States citizen. This information was imputed into the jailhouse management program, which interfaces with a law enforcement website.
On October 23, 2009, bail was reduced from $350,000 to $150,000, conditioned on defendant surrendering his passport, obtaining gainful employment, and residing in New Jersey. On November 17, 2009, First Indemnity, through its agent A.J.'s Bail Bonds, posted a bond in the amount of $150,000 as security to insure defendant's presence in court. The next day, defendant was released from jail after surrendering his Mexican passport and, as a condition of bail, was not allowed to apply for the issuance of another passport.
Seven months later, on June 17, 2010, defendant was indicted, along with six other co-defendants, for possession of twenty-five pounds or more of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), and the transportation of property, specifically United States currency in an amount over $126,000, which a reasonable person would believe to be derived from criminal activity, N.J.S.A. 2C:21-25a. When he failed to appear at his arraignment on August 16, 2010, a bench warrant issued for his arrest. Four days later, a bail forfeiture notice was sent to all interested parties, and on September 22, 2010, First Indemnity filed a motion to vacate the forfeiture.
The hearing on the motion continued for three days over an extended period of time, during which it was revealed that defendant had fled to Mexico and was living in a hotel under armed guard protection of the Lopez drug cartel. Abraham Bashner, A.J.'s Bail Bonds case monitoring supervisor, was provided this information from Gregory Chavez, the recovery agent hired by the firm on December 15, 2010, to effectuate defendant's return from Mexico. According to Chavez, who did not testify, defendant's ties to the Lopez cartel complicated his apprehension from Mexico and, to date, defendant remains a fugitive, still residing in that country and involved with the Lopez drug network. According to Bashner, the Bergen County Prosecutor's Office refused to approve funding to assist in defendant's apprehension because defendant's identity had not been confirmed and there had been no determination as to the feasibility of the recovery operation.
Bashner also testified to the due diligence procedures the firm employs in determining whether to post bail for a defendant. In this particular case, Bashner ran credit searches on both the family members who were posting the bond and the defendant himself to verify his address. Bashner also met with defendant's wife and daughter, both United States citizens, who relinquished their passports upon the posting of the bond, and who confirmed that defendant was a United States citizen, married and with children. Bashner, however, never checked defendant's marriage certificate.
Bashner also used the Bergen County Sheriff's website to confirm defendant's background information, even though the source of this information was defendant himself. Apparently, according to the website, defendant is listed as a United States citizen, who was born in Mexico. Relying exclusively on the website, Bashner never confirmed defendant's citizenship with federal authorities despite the fact that the charges against him involved drug trafficking and money laundering. And although Bashner was present and observed defendant turn over his passport to the court, he never viewed the passport itself. Moreover, although he knew defendant was born in Mexico, Bashner never confirmed whether defendant ever relinquished his Mexican citizenship, or conversely, whether he enjoyed dual citizenship.
From the time of his release from the Bergen County jail on November 18, 2009, to the time the bench warrant was issued on August 16, 2010, Bashner was in contact with defendant telephonically on a weekly basis and defendant appeared once in person in A.J.'s Bail Bonds' office to sign a log sheet. Bashner, however, never produced this log sheet. Furthermore, Bashner did not confirm the location from where defendant was calling and never verified defendant's compliance with the residency and employment conditions of his bail.
At the conclusion of the hearing, Judge Deavila-Silebi denied the surety's motion to vacate the forfeiture, but stayed its judgment for sixty days to allow the surety more time to complete its exoneration of defendant. In an amplified written decision of August 30, 2011, Rule 2:5-1(b), the court found:
In this case, the defendant had ties to Mexico, a neighboring country and did not provide any written proof of monitoring with log sheets as testified to by Mr. Bashner. Unlike ties to a European country or other continent, Mexico borders the United States and can be reached by land. The bondsman failed to verify the defendant's marital status and familial ties by requesting a marriage certificate. Although the bondsman did take the passports of the mother and child, he did not establish the defendant's country or countries of citizenship, which as a result, allowed for the defendant to submit his Mexican passport to the court, while perhaps keeping his United States ...