NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-05-0979.
Joseph G. Monaghan argued the cause for appellants.
Christopher J. Kane argued the cause for respondent.
Before Judges Messano and Kennedy.
Seneca Insurance Co. (Seneca), Callahan Bail Bond Agency (Bail Bonds), and James Reap (collectively, the Surety), appeal from the April 10, 2012, order of the Law Division, entering judgment in favor of the State of New Jersey in the amount of $150, 000, together with interest and costs. We discern the following facts from the record.
Defendant Zerui Huang, a nineteen-year-old Chinese national in the United States on a student visa, was enrolled as a student at Fairleigh Dickinson University. On February 20, 2011, Huang was arrested on a complaint-warrant issued from the Fort Lee municipal court charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1). Bail was initially set by a Superior Court judge at $300, 000 bond only, with additional conditions that Huang have no contact with the alleged victim and surrender his Chinese passport. On March 2, in response to a bail reduction motion, the same Superior Court judge modified the bail to $150, 000 bond only, and maintained the other conditions. Bail Bonds posted a surety bond issued by Seneca.
On March 3, the court's assistant finance division manager sent the United States Immigrations and Customs Enforcement a notice advising that the court had custody of Huang's Chinese passport, together with instructions that Huang was "not permitted to apply for the issuance of any passport during the pendency of [the] action." However, on March 21, Huang's attorney, Matthew Jeon, and the assistant prosecutor assigned to the matter at the time executed a consent order that was entered by the judge. There is no dispute that the consent order was entered without notice to the Surety.
Pursuant to the consent order, Huang's passport was to be released to Jeon or his legal assistant, Sarah Hur for the purpose of renewing [Huang]'s driver's license." The order provided that the passport was to remain in Jeon's or Hur's custody at all times, and it be returned to the Bail Unit within forty-eight hours of release. The record contains a signed receipt for the passport, dated March 22, and a signed receipt that it was returned on March 24.
On or about May 18, 2011, the Bergen County grand jury indicted Huang in a single count charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1). Huang's failure to appear in court on June 2 resulted in the issuance of a warrant for his arrest and forfeiture of the bail. On June 10, Seneca was notified of the forfeiture.
On September 27, the Surety moved to vacate the forfeiture and for other relief. In support of the motion, Callahan provided an affidavit setting forth his efforts to monitor Huang's presence in the jurisdiction, which included meeting with Huang on March 7, visiting his residence on April 13 and speaking to his roommate, who confirmed Huang's residence. Callahan further stated that on June 1, he was unable to contact Huang and the co-signor on the surety; Huang's roommate told Callahan that Huang had returned to China. Callahan called Jeon who advised him that Huang had left the United States. Callahan stated that the prosecutor's office was aware that Huang left the country on May 17 on a flight from Kennedy Airport.
After considering oral argument on January 31, 2012, the judge concluded Callahan's affidavit was "very sparse" regarding "his involvement and his monitoring" of Huang. The judge further determined that "at this point, there's no causation; there's no breach of obligation; there's nothing that rises to the level that by releasing this passport it somehow allowed and permitted [Huang] to flee." She denied the Surety's motion without prejudice.
In February 2012, the Surety moved for reconsideration. The motion was supported by Jeon's affidavit, in which he claimed that Huang contacted him in early March 2011 and inquired about obtaining his passport to renew his driver's license. Jeon contacted the assistant prosecutor, and, pursuant to a ...