STATE OF NEW JERSEY v. FRANCO LOPEZ

(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NOT FOR PUBLICATION WITHOUT THE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-5724-07T15724-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCO LOPEZ,

Defendant

and

LEXINGTON NATIONAL

INSURANCE CORPORATION,

Surety-Appellant.

__________________________________

 

Submitted May 11, 2009 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-04-00574-I.

Richard P. Blender, attorney for appellant.

Thomas F. Kelso, Middlesex County Counsel, attorney for respondent (Niki Athanasopoulos, Deputy County Counsel, on the brief).

PER CURIAM

Lexington National Insurance Corp., appeals from a July 25, 2008 order denying its motion to vacate a February 26, 2008 default judgment. The February 26 judgment forfeited a $35,000 bail bond Lexington had issued to ensure the appearance of defendant Franco Lopez. We affirm, substantially for the reasons stated by Judge Venezia in her oral opinion placed on the record on July 10, 2008.

These are the most pertinent facts. Lopez was admitted to the Pre-trial Intervention Program (PTI) on July 20, 2007. However, in September 2007, after his probation officer attempted to visit Lopez at his New Brunswick address and was unable to find him, the State sought to terminate Lopez from PTI. The probation officer reported that someone had told him that Lopez had returned to his native Honduras. On November 14, 2007, Lopez failed to appear at a hearing to terminate him from the program, resulting in the issuance of a bench warrant and issuance of a November 30, 2007 notice to Lexington that the State intended to forfeit the bail. After Lexington failed to respond to the notice, an order was entered on February 26, 2008, forfeiting the bail.

Lexington moved to set aside the forfeiture. However, at the time the motion was heard, Lopez was still a fugitive. Moreover, Lexington did not produce any evidence that it had either supervised Lopez while he was free on bail or that its agents had made any effort to locate him at any point in time. Nor did Lexington produce any legally competent evidence that Lopez had fled the country.

In denying Lexington's motion, Judge Venezia reasoned that defendant's apparent flight, and the State's inability to prosecute him for the underlying offenses, justified forfeiture. She also reasoned that even if, as the surety argued, defendant "cannot be returned from Honduras," the forfeiture nonetheless provided an ongoing incentive to the surety "to take active and reasonable steps to recapture the fugitive defendant." Further, she noted that "the surety could always, hereafter, bring a remission application, were the defendant to be apprehended, and returned to court." Accordingly, she confirmed that the motion to vacate the forfeiture was denied without prejudice.

On this appeal, Lexington argues that forfeiture of the entire bail amount is "inequitable and not in the interests of justice" even though defendant is still a fugitive. The surety also contends that the later setting of a lower bail, albeit with no ten-percent option, is evidence that the original bail was too high. These arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comment.

There is no evidence in this record that Lexington made the slightest effort to fulfill its responsibilities as a surety. Lexington offered no proof that it made any attempt to supervise the defendant, or that it tried to locate him after he failed to appear for the PTI termination hearing. Moreover, there is no competent evidence in the record as to defendant's current whereabouts. The only evidence offered is hearsay in the form of what some "unknown female" told Lopez's probation officer over the phone. For all this record reveals, defendant could still be living in New Brunswick, at a different address. In light of these facts, Lopez's continuing status as a fugitive justified the denial of Lexington's motion. See State v. Harmon, 361 N.J. Super. 250, 254-55 (App. Div. 2003); Bail Remission Guidelines, Directive # 13-04 (November 17, 2004); Supplement to Directive # 13-04, Remission Schedule 1 (November 12, 2008).

Affirmed.

 

Judge Nieves, who issued the bench warrant, set a new bail requirement of $20,000 with no ten-percent option.

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A-5724-07T1

June 3, 2009