NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-04-0697, and 10-10-1808.
Richard P. Blender, attorney for appellant.
Chasan Leyner & Lamparello, PC, attorneys for respondent County of Hudson (Mitzy Galis-Menendez, of counsel and on the brief; Maria P. Vallejo, on the brief).
Before Judges Fisher and Alvarez.
International Fidelity Insurance Company (International Fidelity) appeals from a March 27, 2012 order partially granting its motion for remission of forfeiture of defendant Jimmy Morillo's bail. Remission was granted in the amount of $15, 000, but a judgment in the amount of $60, 000 was entered against the corporate surety. On this appeal, International Fidelity contends that by virtue of the parties' mutual mistake with regard to a particular warrant for Morillo's arrest, that the corporate surety should be entitled to relief from the bail forfeiture order. We affirm.
The material facts are as follows. A $75, 000 bail was posted on December 28, 2009, by the surety agent securing Morillo's release on charges of eluding a law enforcement officer, N.J.S.A. 2C:29-2(b), possession of burglary tools, N.J.S.A. 2C:5-5, and receiving stolen property, N.J.S.A. 2C:20-7(a). At that time, Morillo had an outstanding open warrant in Somerset County dating back to May 8, 2003. Through some administrative oversight, this information was not available to either counsel or the court when the bail was set.
The surety agent, counsel, and the court were aware, however, that Morillo was a fugitive who had two other warrants outstanding for failure to appear: on charges of forgery in 2008and assault in 2009 from Bergen County, and of an offense designated as "permit purchase-fire" in 2004 and obstruction in 2009from Essex County. In fact, Morillo was transported to Essex County on January 8, 2010, to address the outstanding charges there for which he had previously failed to appear.
Morillo failed to appear for a pre-arraignment interview five months after bail was posted in these matters. His bail was forfeited on May 3, 2010.
On May 7, 2010, notice of bail forfeiture was served on the surety agent and on July 26, 2010, a default judgment was entered. On May 3, 2011, Octavia Bail Bonds and International Fidelity filed a motion to extend the time in which to surrender Morillo. The proceedings were stayed, initially, to May 18, 2011. Thereafter, they were stayed again on June 3, 2011, June 17, 2011, August 2, 2011, and August 24, 2011.
In the intervening months, it was learned Morillo had the 2003 outstanding open warrant from Somerset. The surety agent did not engage in any monitoring efforts whatsoever. It was aware that Morillo had a court appearance scheduled for February 19, 2010, and logged entries regarding Morillo's continued fugitive status.
The court ordered a twenty percent remission after hearing oral argument on February 29, 2012. A written decision was ...