STATE OF NEW JERSEY v. ANGEL PARADA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5523-07T45523-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL PARADA,

Defendant.

_______________________________________

 

Submitted April 21, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-03-0143.

Wronko & Loewen, attorneys for appellants Carmen Palaquibay and Thomas A. Pavlinic (James R. Wronko, on the brief).

Thomas C. Miller, Somerset County Counsel, attorney for respondent.

PER CURIAM

This is an appeal by Carmen Palaquibay (Palaquibay) and Thomas A. Pavlinic (Pavlinic) from an order entered in the trial court on July 8, 2008, denying a motion to set aside a bail forfeiture. For the reasons that follow, we modify the order to state that denial of the motion is without prejudice and, as so modified, we affirm.

The following facts are relevant to our decision. In March 2006, defendant Angel Parada was charged under a Somerset County indictment with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a; and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. On April 8, 2006, Palaquibay, who is defendant's mother, posted $75,000 as bail for defendant.

In March 2007, Palaquibay assigned her interest in the bail to Pavlinic in order to have Pavlinic and co-counsel, James Wronko (Wronko), represent defendant in the matter. Palaquibay's assignment authorized the court to release the bail monies to Pavlinic, with the understanding that he would disburse the funds in accordance with a retainer agreement executed by defendant, Palaquibay and Pavlinic.

It appears that at the time he was indicted, defendant was a member of the armed forces of the United States. Defendant apparently was dishonorably discharged as a result of the charges in this matter. Defendant had no income and resided with his mother and step-father. Although defendant was eligible for the services of the Public Defender, he elected to retain Pavlinic and Wronko as his attorneys. The retainer agreement executed by defendant, Palaquibay and Pavlinic provided that, upon release, the bail monies would be distributed as follows: $37,000 to Palaquibay; $20,000 to Pavlinic as a fee for the trial; $15,000 to Wronko as a fee for the trial; and $3,000 to Pavlinic for expenses.

The matter was tried in January 2008. Defendant appeared and remained for the presentation of evidence, the summations by the attorneys and the jury instructions. The jury began its deliberations on January 24, 2008. Defendant did not appear in court on that date. The jury returned its verdict on January 25, 2008, finding defendant guilty. The court entered an order dated January 30, 2008, for defendant's arrest and the forfeiture of bail.

According to Pavlinic, Palaquibay and her family have not heard from defendant since he disappeared during the trial. Pavlinic says that Palaquibay and defendant's other family members contacted their known relatives in Ecuador where defendant was born. They also have contacted friends and associates in this area. Defendant has not been located and Palaquibay informed Pavlinic that she has no idea where defendant is. It appears that, when defendant absconded, he left behind his car, passport and his personal belongings.

On March 11, 2008, Palaquibay and Pavlinic filed a motion to set aside the bail forfeiture. The motion was heard on June 19, 2008, and the court placed its decision on the record on that date. The court stated that the motion would be denied because defendant remained a fugitive. The court agreed that Palaquibay and Pavlinic could renew their motion in the event defendant is found and returned to our judicial system for further proceedings. The court entered an order dated July 8, 2008, denying the motion. This appeal followed.

Appellants argue that the trial court erred by refusing to set aside the bail forfeiture. They contend that remission of bail is appropriate under the circumstances because the State has a strong interest in ensuring that indigent defendants have representation and in having family members pay the legal costs instead of the Office of Public Defender. Appellants further maintain that, if Palaquibay had not assigned her rights to the bail to Pavlinic, defendant would have been unable to retain private counsel and the Public Defender would have been required to bear the cost of the trial.

Rule 3:26-4(a) provides that a defendant who is admitted to bail, and the person or entity acting as his or her surety, must execute a recognizance that is "conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." If the defendant violates a condition of bail, the court may order the forfeiture of the bail. R. 3:26-6(a).

A bail forfeiture may be vacated "in whole or in part, if its enforcement is not required in the interest of justice[.]" R. 3:26-6(b). The party who seeks to set aside the forfeiture "bears the burden of proving that remission is justified." State v. Ventura, 196 N.J. 203, 213 (2008).

A decision to remit forfeited bail and the amount of any remission is committed to the sound discretion of the trial court. Ibid. (citing State v. Peace, 63 N.J. 127, 129 (1973)). In considering whether to set aside a bail forfeiture and the amount, if any, of the bail that should be remitted, the court should consider the following factors:

"(a) whether the applicant is a commercial bondsman; (b) the bondsman's supervision, if any, of defendant during the time of his release; (c) the bondsman's efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for the appearance of defendant and his return to court; (e) the prejudice, if any, to the State because of the absence of defendant; (f) the expenses incurred by the State by reason of the default in appearance, the recapture of the fugitive and the enforcement of the forfeiture; [and] (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice."

[Ibid. (quoting State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973)).]

The court may also consider "whether the surety's efforts helped to secure the defendant's return." Id. at 214 (citing State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000)). In addition, the court may consider whether remission of bail in whole or in part will provide "'incentive to the surety to take active and reasonable steps to recapture a fugitive defendant.'" Ibid. (quoting State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003)).

We are convinced from our review of the record that the trial court did not abuse its discretion by denying appellants' motion to set aside the bail forfeiture. It is undisputed that, when the motion was made, defendant remained a fugitive. "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." State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003).

Notwithstanding appellants' arguments to the contrary, the interests of justice do not warrant the remission of the forfeited bail at this time. In its decision on the record on June 19, 2008, the court aptly noted that, "[i]f a surety for whatever reason could successfully obtain the return of bail moneys posted while the defendant is still a fugitive from justice, the purpose of bail would be negated."

We note that Palaquibay and defendant's other family members did not file a certification setting forth the actions they have taken to find defendant and bring about his return to our judicial system. Although Pavlinic stated in his certification that Palaquibay and defendant's other family members made certain inquiries regarding defendant's whereabouts, the steps they have taken appear to have been minimal. Clearly, if the bail is remitted at this time, either in whole or in part, Palaquibay would be less inclined to locate defendant so that he may be taken into custody.

We recognize that Pavlinic and Wronko have an interest in being paid for the services they provided to defendant for his trial. We note, however, that the trial court's July 8, 2008 order does not preclude counsel from ever being paid. In its decision from the bench on June 19, 2008, the court stated that "in the event that the defendant is eventually apprehended, the surety can make an appropriate application to the [c]ourt seeking a return of some of the bail moneys that were posted here . . . by his mother." The court commented that it could then "take into account any efforts made by the surety" to bring about defendant's return to the court system.

Because the trial court's order did not expressly state that denial of the motion for remission of the forfeited bail was without prejudice, we modify the order to provide that appellants may renew their motion if defendant returns to New Jersey for further proceedings in this case.

As modified, the order of July 8, 2008 is affirmed.

 

Angel Parada was incorrectly identified as appellant in the notice of appeal and the brief filed by appellants.

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A-5523-07T4

June 1, 2009