State v. Ventura

• Court: New Jersey Supreme Court
• Writing for the Court: Wallace, Jr.
• Citation: State v. Ventura, 952 A.2d 1049, 196 N.J. 203 (N.J. 2008)
• Decision Date: 05 August 2008
• Docket Number: A-45 September Term 2007,A-74 September Term 2007
• Parties: STATE of New Jersey (County of Bergen), Plaintiff-Respondent, v. Nazario VENTURA, Defendant, and Safety National Casualty Corporation, as Surety, Defendant-Appellant. State of New Jersey (County of Middlesex), Plaintiff-Respondent, v. Leidy Granados, Defendant, and Lexington National Insurance Corp., (Surety), Defendant-Appellant.

952 A.2d 1049

196 N.J. 203

STATE of New Jersey (County of Bergen), Plaintiff-Respondent, v. Nazario VENTURA, Defendant, and Safety National Casualty Corporation, as Surety, Defendant-Appellant.

State of New Jersey (County of Middlesex), Plaintiff-Respondent, v. Leidy Granados, Defendant, and Lexington National Insurance Corp., (Surety), Defendant-Appellant.

A-45 September Term 2007

A-74 September Term 2007

Supreme Court of New Jersey.

Argued May 6, 2008.

Decided August 5, 2008.

Samuel M. Silver argued the cause for appellant Safety National Casualty Corporation.

Richard P. Blender, Paterson, argued the cause for appellant Lexington National Insurance Corp.

Christopher J. Kane argued the cause for respondent State of New Jersey (County of Bergen) (Law Offices of David S. Lafferty, attorneys).

Niki Athanasopoulos, Deputy County Counsel, argued the cause for respondent State of New Jersey (County of Middlesex) (Thomas F. Kelso, Middlesex County Counsel, attorney).

Justice WALLACE, JR., delivered the opinion of the Court.

We consolidate these companion cases for the purpose of this opinion and address whether it was error to deny the motion of the respective sureties to remit the forfeited bail. In both cases, a corporate surety posted bail to secure the pretrial release of a defendant who, upon being released from jail, failed to appear at a scheduled court proceeding. A bench warrant was issued for each defendant, and the bails were deemed forfeited. Upon learning of the forfeiture, the surety in one case discovered that the defendant was incarcerated in Canada, and the surety in the other case discovered that the defendant was incarcerated in North Carolina. Despite New Jersey authorities placing a detainer on each defendant, the defendants were deported. In each case, the trial court denied the surety's motion to remit the forfeited bail, and the Appellate Division affirmed. We granted certification and now affirm.

We hold that a motion for remission of forfeited bail is assessed in a fact-sensitive manner, weighing a multitude of factors outlined in State v. Hyers, 122 N.J.Super. 177, 180, 299 A.2d 748 (App.Div.1973), and its progeny. A crucial factor in every bail remission case is whether the defendant remains a fugitive. In the cases before us, we find no abuse of discretion in the denial of the separate motions to remit the forfeited bail.

I.

A. State v. Ventura

In 2005, Nazario Ventura was arrested in Bergen County on weapons and narcotics charges. Safety National Casualty Corporation (Safety), a corporate surety authorized to underwrite bail bonds, posted a $150,000.00 bond for Ventura's release. An indictment was subsequently returned against Ventura. The Criminal Division Manager's Office notified Ventura that he was required to appear in court on June 13, 2005. When Ventura failed to appear on the scheduled court date, the trial court issued a bench warrant for his arrest and declared the bail forfeited. On June 15, 2005, the trial court sent Safety a notice of bail forfeiture and instructed Safety that it had seventy-five days to move to set aside the bail forfeiture or suffer a default judgment in the full amount of the bail. On November 15, 2005, the court notified Safety that if the judgment was not satisfied, Safety would be precluded from writing any more bail in the State. In a letter dated December 7, 2005, Safety responded that it would pay the judgment by December 20, 2005.

Meanwhile, Safety assigned the matter to a recovery agent to locate Ventura. During the investigation, Safety learned that Ventura had fled to Canada to be with his wife. The agent provided the address of defendant's wife, who was living in Montreal at the time, to the Bergen County Prosecutor's Office-Fugitive Unit (Bergen County). On December 13, 2005, the recovery agent reported that Ventura was incarcerated in Montreal on immigration violations and had been incarcerated there since August 2005. A detainer was placed on defendant by Bergen County.

On December 19, 2005, Safety filed a Motion to Stay the Entry of the Judgment and to Vacate the Forfeiture and/or Judgment, Exonerate the Surety, and Discharge the Bond. The motion included a letter from the recovery agent dated December 13 2005, confirming Ventura's incarceration in Montreal on immigration violations. The letter further stated that "Ventura also has the Bergen County Warrant as a detainer hold, [and] Ventura will be extradited back to Bergen County within a few months." The trial court denied the motion without prejudice on February 23, 2006. The court expressly provided in the order that Safety could renew its motion upon defendant's return to the United States.

On June 30, 2006, after learning that Ventura had been deported to the Dominican Republic, Safety filed a second motion for remission. The motion included a letter from the recovery agent explaining that he had received information from Bergen County that Ventura had been deported to the Dominican Republic. In a follow-up letter, the recovery agent explained that the Canadian Marshals Service had notified Bergen County authorities that it had deported Ventura to the Dominican Republic; that the U.S. Marshals Service had advised Bergen County officials that Bergen County could bring Ventura back to the United States; and that Bergen County had stated that it would commence the process of securing Ventura's return.

A hearing on Safety's motion was held on August 2, 2006. Other than the agent's letter, Safety did not submit any evidence or call any witnesses at the hearing. The trial court noted that Ventura remained in the Dominican Republic, and that Safety had not produced him before the court. Accordingly, the trial court denied the motion.

Safety sought a stay of the judgment and filed a notice of appeal. In January 2007, a stay was granted, conditioned upon the filing of a supersedeas bond. The Appellate Division affirmed. In concluding that denial of remission was appropriate, the panel stated that "when a defendant remains a fugitive at the time the remission motion is made, the essential undertaking of the surety remains unsatisfied." The panel also noted that its conclusion was consistent with Directive # 13-04: Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F: Remittitur Guidelines, at 1-4 (Nov. 17 2004), available at http://www judiciary.state.nj.us/directive/criminal/dir1304.pdf [hereinafter Guidelines] issued by the Administrative Director of the Courts concerning bail and bail forfeiture. Ibid. We granted Safety's petition for certification. 192 N.J. 480, 932 A.2d 31 (2007).

B. State v. Granados

On October 4, 2004, Leidy Granados was arrested in Middlesex County for possession of stolen goods. Lexington National Insurance Company (Lexington) posted a $40,000.00 bond to secure her pretrial release. Lexington supervised Granados via telephone calls, mail correspondence, and personal visitations. When Granados failed to appear at the surety's office for a regularly scheduled visit, Lexington commenced an investigation to find her. The surety contacted family and friends of Granados and hired a professional investigator to assist in locating her. Nevertheless, Granados could not be found and she missed her status conference on December 10, 2004. The trial court issued a bench warrant for her arrest and ordered the bail forfeited.

Although the record is not clear regarding the details, it appears that on December 23, 2004, the Middlesex County Prosecutor's Office — Fugitive Task Force Unit (Middlesex County) learned through the National Crime Information Center that Granados had been arrested and was being held at the Randolph County Jail in Asheboro, North Carolina. That same day, Middlesex County faxed a copy of the bench warrant to the Randolph County Jail, requesting that the warrant be given the same effect as a detainer. Several weeks later, Middlesex County lodged a formal detainer with the Randolph County Jail.

Meanwhile, on January 6, 2005, Lexington filed a motion to vacate the bail forfeiture. As part of its motion, counsel certified that Granados was incarcerated in North Carolina and that Middlesex County had lodged a detainer. Shortly thereafter, Middlesex County received notice that Granados was transferred to the custody of the U.S. Marshals Service. Middlesex County then lodged a detainer with that office. On June 2, 2005, the trial court heard and denied Lexington's motion, finding the surety liable for the full amount of the bond.

On June 8, 2005, the U.S. Marshals Service informed Middlesex County that it could not locate Granados. Middlesex County then contacted a United States Immigration and Customs Enforcement (ICE) field office in New Jersey. Further investigation revealed that Granados had been deported to Colombia on June 23, 2005.

After learning of Granados's deportation, Lexington filed a second motion to vacate the bail forfeiture. Lexington submitted a certification that described what occurred. The certification noted that Granados was also known as Carmen Rugu-Martinez and included a copy of a letter from the Deportation Officer of Homeland Security stating that "Carmen Rugu-Martinez was removed from the United States to Colombia on June 23, 2005 by United States Immigration and Customs Enforcement."

In opposition to the motion, Middlesex County submitted the certification of Sergeant David Jackson, who stated that once Granados was located in a North Carolina jail, a detainer was lodged there. Further, Jackson noted that on June 8, 2005, the U.S. Marshals Service advised Middlesex County that Granados could not be located, and eventually ICE confirmed that Granados had been deported to Colombia on June 23, 2005.

The trial court acknowledged that Lexington supervised Granados while on bail and attempted to locate her after she failed to appear. However, the trial court found that Lexington...