STATE OF NEW JERSEY v. JOSE BORBON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1199-07T11199-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE BORBON,

Defendant,

and

ACCREDITED SURETY &

CASUALTY COMPANY,

Defendant-Appellant.

________________________________________________________________

 

Argued November 18, 2008 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-06-00093.

Samuel M. Silver argued the cause for appellant.

Mitzy Galis-Menendez argued the cause for respondent County of Hudson (Chasan Leyner & Lamparello, attorneys; Ms. Menendez, on the brief).

PER CURIAM

Accredited Surety & Casualty Co. (Surety) appeals from an order entered on October 27, 2007 denying its motion to vacate forfeiture of the $50,000 bail bond it had posted for defendant Jose Borbon. We reverse and remand.

When Borbon failed to appear on March 15, 2006, a notice of bail forfeiture was sent to Surety. On May 28, 2006, Surety moved to extend the time to produce defendant. On June 12, 2006, however, the trial court entered a default against Surety forfeiting the bail.

More than three months later, Surety again moved to extend the time to produce defendant. Surety claims that in the interim, it contacted the county on December 13, 2006, and informed the county that defendant was in the Dominican Republic. Subsequent investigations by Surety in January and July 2007 revealed the exact address and telephone number for defendant in the Dominican Republic. On August 1, 2007, Surety filed a supplemental affidavit regarding defendant's whereabouts. Based on Surety's supplemental affidavit, the county filed a "Red Notice" extradition application with INTERPOL on August 13, 2007.

A hearing was held on September 19, 2007, at which time the county argued that it was Surety's obligation to return defendant to the jurisdiction. The trial court agreed with the county and rendered its decision on the record. In its decision, the trial court stated that Surety "didn't do what ultimately [it was] supposed to do which is produce [defendant]." On October 29, 2007, the trial court entered an order denying Surety's motion to vacate the default.

The county acknowledges that Surety located defendant and provided his address in the Dominican Republic, where he had fled pending prosecution. The county represents that the State filed the appropriate applications with INTERPOL and that defendant could be returned to the county on that basis. Both parties argue that State v. Poon, 244 N.J. Super. 86 (App. Div. 1990), applies. In Poon, we held that bail could not be forfeited when the defendant, who had been deported, could not be returned to New Jersey. Id. at 101. The county argues that since defendant was not deported, Surety was not relieved of its obligation to return him to New Jersey. Surety, however, argues that the trial court did not consider all of the factors necessary for forfeiting bail.

In rendering its decision, the trial court gave a brief statement of reasons:

I understand you can't go and get him and - and the prosecutor may be able to get him. However, this is a lot different than a recent case where even though he was still a fugitive he was in some other state's jail.

Here, it's another country, a foreign jurisdiction and treaties aside we know of many situations where it becomes difficult to get people back from other countries and there's no guarantee that this individual will be brought back from another country. Therefore, your motion . . . is denied.

In this appeal, Surety argues that the trial court erred in (1) forfeiting the entire amount of bail; and (2) failing to articulate its consideration of the required factors on the record.

A party seeking to set aside a bail forfeiture bears the burden of proving that "it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000) (quoting State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)). There are "over-arching" policy concerns to be considered in determining whether to set aside a forfeiture. State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). They include (1) the necessity of providing an incentive for the surety to take active and reasonable steps to recapture the defendant; and (2) the avoidance of unreasonably forfeited bail, which may render overcautious sureties unwilling to post bail to the detriment of a defendant's constitutional rights. Ibid.

The following factors must be weighed within the framework of the policy concerns in determining whether bail should be forfeited:

1. Whether the surety has made reasonable efforts under the circumstances to effect the capture of the defendant. State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003); Mercado, supra, 329 N.J. Super. at 271.

2. Whether the applicant is a commercial bondsman. State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).

3. The degree of the surety's supervision of defendant while he or she was released on bail. State v. Ramirez, 378 N.J. Super. 355, 364 (App. Div. 2005); Harmon, supra, 361 N.J. Super. at 255; Hyers, supra, 122 N.J. Super. at 180.

4. The length of time the defendant is a fugitive. Harmon, supra, 361 N.J. Super. at 255; Hyers, supra, 122 N.J. Super. at 180.

5. The prejudice to the State and the expense incurred by the State as a result of the fugitive's non-appearance, recapture and enforcement of the forfeiture. Harmon, supra, 361 N.J. Super. at 255; Hyers, supra, 122 N.J. Super. at 180.

6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. Harmon, supra, 361 N.J. Super. at 255.

7. The defendant's commission of another crime while a fugitive. Ramirez, supra, 378 N.J. Super. at 365; de la Hoya, supra, 359 N.J. Super. at 200; Harmon, supra, 361 N.J. Super. at 255.

8. The amount of the posted bail. de la Hoya, supra, 359 N.J. Super. at 199.

Where the defendant remains a fugitive, "the essential undertaking of the surety remains unsatisfied, and the denial of remission is entirely appropriate." Harmon, supra, 361 N.J. Super. at 255. Where the defendant has been located out-of-state and cannot be returned by the surety, the court may remit the bail or await the defendant's return to New Jersey. State v. Wilson, 395 N.J. Super. 221, 229 (App. Div. 2007).

Here, the trial court did not weigh any of the factors or the policy concerns involved in its determination to forfeit bail. From the record presented, we are persuaded that the factors balance in Surety's favor. Surety cannot arrest and extradite defendant from the Dominican Republic. The record indicates that defendant was supervised by Surety and that he checked in regularly between September 2005, when bail was posted, and March 15, 2006, when bail was forfeited. Surety is a commercial bonding company, which posted a substantial bond of $50,000. Moreover, Surety was responsible for locating defendant and providing that information to the State, which in turn provided the information to INTERPOL. There is no indication what expenses the State will incur to have defendant returned to the jurisdiction. That issue should be decided in the remand hearing.

While in Poon, supra, 244 N.J. Super. at 101, we addressed the impossibility of returning a deported defendant to the jurisdiction, we find the circumstances in the present case similar, in that Surety cannot go to the Dominican Republic to arrest and extradite defendant. Thus, it is impossible for Surety to produce defendant on its own without the intervention of law enforcement to which Surety has provided defendant's location.

In short, we find that the trial court abused its discretion in denying Surety's motion to vacate forfeiture of the $50,000 bond it posted for defendant. Accordingly, we reverse and remand the matter to the trial court for a determination of what reasonable amount of expenses the State anticipates it will incur in returning defendant to the jurisdiction if, in fact, the State elects to do so. The amount of those anticipated expenses should be deducted from the bail and paid to the State. The remainder of the bail should be returned to Surety. The remand hearing is not dependent upon defendant's actual return to Hudson County but should be conducted expeditiously.

Reversed and remanded. We do not retain jurisdiction.

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A-1199-07T1

March 11, 2009