July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HALLAN ARCEO-REYES, DEFENDANT, AND FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012 --
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 passport for travel. A.J. Bail Bonds did not request to see the Mexican passport nor did they inquire with the federal authorities regarding the defendant's status in the country.
Although the bondsman maintained telephone contact with the defendant, there was only one instance where the defendant appeared in person to sign the bondsman's log book. These measures proved inadequate to actually monitor the defendant's whereabouts because it was unclear as to whether the defendant was using a cell phone or a home phone to call the bondsman, and as a result, could have been lying about his location.
The bondsman's reliance on the Bergen County Sheriff's Office website was inadequate to confirm the defendant's resident status. As per the testimony of Sgt. Russo, when the jail books an inmate, they rely on information provided by the inmate. As a result, the defendant in this case could have provided false information to the jail. The bondsman should have required that the defendant provide documentation to prove his resident status and monitored him closely prior to flight. Furthermore, the defendant continues to be a fugitive and the surety has failed to discharge its essential responsibilities to assure defendant's presence at trial. A.J.
Bail Bonds has also failed to prove that it has exhausted all efforts with the Mexican authorities to apprehend the defendant in Mexico. This information is not clear because Mr. Chavez did not testify and his efforts to apprehend the defendant in Mexico were not proven.
On appeal, First Indemnity argues that the court erred in not remitting funds to the surety by failing to consider the fact that the State's information about defendant was mistaken and the State denied assistance in the surety's recovery efforts. We disagree.
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 however.
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 has developed Guidelines to assist in bail remission proceedings. 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. Those Guidelines review the relevant case law and provide the trial court with starting points for an appropriate analysis. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007). The Guidelines state:
The following are a broad set of guidelines that have been developed to provide judges with a starting point when determining whether to grant remission, and if so, the amount to remit. Obviously, the particular facts in an individual case will determine whether the amount to remit is increased or decreased. The genesis for developing some of the guidelines was derived from recent Appellate Division decisions. [Directive #13-04, supra, at 4.]
Under the first starting point, the Guidelines presume that no remission is appropriate: "'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 (quoting State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003)).
In State v. Ventura, 196 N.J. 203 (2008), although addressing remission in the context of defendants who had been deported while on bail, the Court emphasized that remission was not appropriate when the defendant was a fugitive before deportation and remained outside the United States. Id. at 219. In its ruling, the Court echoed the broader principles articulated previously in State v. Poon, 244 N.J. Super. 86, 101 (App. Div. 1990), and stated that "[a] surety's essential responsibility is to guarantee not only the defendant's appearance at the scheduled court proceedings, but if the defendant is deported to make every effort to re-apprehend the defendant." Id. at 221 (citing Mercado, supra, 329 N.J. Super. at 271).
Here, as the trial judge noted, First Indemnity's efforts to monitor and supervise defendant prior to his flight were inadequate, lacking verification and reliability. Given the information available to the surety at the time, more in the way of due diligence investigation was indicated, particularly on the issue of defendant's possible dual citizenship. In this regard, and contrary to the surety's representation, there is no evidence that information in the law enforcement database was erroneous, but even if it were, the surety did not rely exclusively thereon and would have been woefully deficient if it had.
Likewise, the surety is not entitled to remission simply because the State decided not to presently pursue extradition of defendant from Mexico. First Indemnity offers no legal support that lack of affirmative governmental action operates to excuse the surety of performance and exonerates the bond. Here, First Indemnity determined it was an acceptable risk to bail out a drug dealer with Mexican ties, and therefore, cannot now be heard to complain about the lack of State initiative, especially when the surety itself has failed to exert sufficient recovery efforts due to fear of repercussions from defendant or his associates. To argue otherwise would be to frustrate the primary purpose of bail and relieve the surety of the consequences of its own deficient efforts and bad judgment.
For these reasons, we find no mistaken exercise of the court's discretion in denying First Indemnity's motion to vacate forfeiture.
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