STATE OF NEW JERSEY v. DAMIAN GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5921-09T1

A-5922-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DAMIAN GARCIA, AKA DAMAR GARCIA,

Defendant,

and

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BALTAZAR CONSTANTINO,

Defendant,

and

SAFETY NATIONAL CASUALTY CORPORATION,

Defendant-Appellant.

-

Argued:June 2, 2011 - Decided: June 24, 2011

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-05-00084.

Richard P. Blender, argued the cause for appellant.

Donna M. Taylor, Assistant County Counsel, argued the cause for respondent (Atlantic County Department of Law, attorneys; Ms. Taylor, on the brief).

PER CURIAM

Defendants Damian Garcia and Baltazar Constantino failed to appear for a scheduled court appearance one year after posting bail. Following forfeiture of each bail, the surety, Safety National Casualty Corporation (Safety National), moved for remission of bail. Safety National appeals from the orders denying its motions for remission of forfeiture. We affirm.1

Damian Garcia posted $200,000 bail and was released from jail on August 23, 2007. Baltazar Constantino posted $225,000 bail and was released from jail on July 14, 2007. Garcia and Constantino had been charged with possession of more than 50 grams of marijuana, in violation of N.J.S.A. 2C:35-10a(3); manufacturing, distributing or dispensing marijuana in a quantity of twenty-five pounds or more, in violation of N.J.S.A. 2C:35-5b(10)(a); and conspiracy in violation of N.J.S.A. 2C:5-2a(1), based on their involvement in a marijuana smuggling and distribution operation. One year later, on August 25, 2008, Garcia and Constantino failed to appear at a scheduled court appearance and the court entered an order forfeiting their bail. Safety National received notices of forfeiture of bail. On November 24, 2008, the court entered a "Default Judgment on Forfeited Corporate Ball Bonds and Notice of Removal."

Several months later, Safety National filed a motion to remit the forfeiture. Safety National relied on the September 23, 2009 certification of Said Said, the owner of Fugitive Warrant Enforcement (FWE). Said related that FWE had been retained to locate Garcia and Constantino, the men were father and son, and living in Ranch Laguna Prieta, Mexico. He reported how he obtained this information and provided a telephone number through which his informant had recently attempted to speak to Garcia. After further investigation, Said related that a sister-in-law of Garcia provided him with a specific address where Garcia and Constantino resided and a telephone number at which they could be reached. The telephone number was the same number provided to Said by his initial informant. Said also reported that on September 20, 2009, an agent sent to Mexico by FWE located both men at the address provided in the certification.

By order dated November 30, 2009, Judge Donio extended the arrest warrants for both defendants, and further ordered the State to advise the court by February 15, 2010, whether the State intended to seek extradition of defendants. Judge Donio also stayed forfeiture of the bail posted by each defendant until further of the court. By order dated April 6, 2010, Judge Donio continued the stay and required the State to prepare and submit estimates of the reasonable expenses to return defendants to this State. The State never produced a cost estimate.

Finally, following a further hearing on June 21, 2010, Judge Donio denied Safety National's motion to remit the forfeiture of each bail. In his oral opinion, after appropriately chastising the State for failing to submit a cost estimate as ordered, Judge Donio determined not to remit any portion of the forfeiture. He reasoned that Safety National failed to submit any information about the nature and extent of supervision between the time it posted bail for each man and their non-appearance at a scheduled court event a year later. He also noted that there was some uncertainty concerning the location of defendants and questioned his authority to challenge the State's decision not to dedicate financial and human resources to extradite defendants. Finally, he emphasized that the continuing absence of defendants from the jurisdiction and the inability of the State to resolve the criminal charges against them due to their flight counseled heavily against granting any relief to Safety National.

On appeal, Safety National argues that the decision to deny remission is inequitable due to the State's refusal to make any effort to retrieve defendants from Mexico. It also contends that defendants' fugitive status in Mexico counsels in favor of remission and it should be relieved from the bail forfeiture when its capacity to return defendants is legally impossible. The State emphasized that defendants are fugitives, and their presence in Mexico was the product of flight to avoid prosecution rather than a deportation proceeding.

Rule 3:26-6 governs the remission of bail forfeitures. The decision to remit a bail forfeiture and the amount of the remission are matters within the sound discretion of the trial judge. State v. Peace, 63 N.J. 127, 129 (1973); State v. Wilson, 395 N.J. Super. 221, 226 (App. Div. 2007); State v. Mercado, 329 N.J. Super. 265, 270 (App. Div. 2000). This discretion is not unguided.

In State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), we observed that the decision to remit bail and the amount of the remission are equitable in nature, and the judge should consider at least eight identified factors. Those factors include the corporate or private status of the surety, the nature and extent of supervision by the surety while the defendant is released on bail, the surety's efforts to return the defendant to custody, the time between the failure to appear and the return to custody, the prejudice to the State attributable to the absence of the defendant, the expense incurred by the State due to the absence of the defendant, and reimbursement of expenses incurred by the State. Ibid. The Supreme Court implicitly approved these factors and further noted that "[t]here is an intangible element of injury to the public interest in almost any case where a defendant deliberately fails to make an appearance in a criminal case." Peace, supra, 63 N.J. at 129.

The Administrative Office of the Courts promulgated Directive #13-03, that includes a set of guidelines (the Guidelines) for the handling of requests for remission from bail forfeiture.2 The initial version of the Directive was issued in December 2003, and reflected the legislation, court rules and case law governing admission to bail, forfeiture of bail, and application for remission of forfeiture. The Guidelines were reissued in Directive #13-04 in November 2004 in the same form. The October 2007 and the November 12, 2008 supplements to Directive #13-04 reflect subsequent rulings, including State v. Ventura, 196 N.J. 203 (2008), which addresses bail remission when a defendant is deported while on bail. See Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 2:26-6 (2011).

We turn to an evaluation of the two cases before us. We start with certain basic principles. First, the surety bears the burden to prove that forfeiture is inequitable. State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975); State v. Singletary, 170 N.J. Super. 454, 458 (Law Div. 1979). When the surety seeks partial or total remission of a forfeiture, the surety must "show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody[.]" Mercado, supra, 329 N.J. Super. at 271. The State bears the simple burden to prove that the defendant did not appear in court. Fields, supra, 137 N.J. Super. at 81. The trial judge, in turn, is required to identify and weigh the factors that inform the decision to remit a forfeiture in whole or in part. State v. Ramirez, 378 N.J. Super. 355, 370 (App. Div. 2005); State v. de la Hoya, 359 N.J. Super. 194, 200 (App. Div. 2003).

The Guidelines contained in Directive #13-04 and its several supplements are available to guide the discretion reposed in the trial judge and reflect the accumulated case law. The Guidelines and the Remission Schedules are designed, however, to be the starting point in any determination to remit a forfeiture and the amount of any remission. State v. Toscano, 389 N.J. Super. 366, 371 (App. Div. 2007); State v. Harris, 382 N.J. Super. 67, 72 n.5 (App. Div. 2005), certif. denied, 186 N.J. 365 (2006).

In Ventura, the Court addressed remission in the context of defendants who had been deported while on bail. The Court recognized that the general principles concerning bail remission did not neatly fit when a defendant was deported while on bail and awaiting trial. 196 N.J. at 216. Under the Guidelines, remission would generally be inappropriate because a deported defendant was, for practical purposes, still a fugitive. Ibid. However, the Court, understood in the deportation context, "the impossibility of securing the defendant's presence may play a role in assessing a surety's motion for remission and in the appropriate case, relief may be granted." Ibid.

The Court cited with approval State v. Poon, 244 N.J. Super. 86, 101 (App. Div. 1990), which held it "inappropriate to adopt a per se rule prohibiting any remission[,]" where a defendant could not be returned to New Jersey, even through extradition. Nevertheless, this court confirmed that the non-appearance and absence from the jurisdiction of the defendant, and the efforts of the surety to return the defendant remained relevant factors in determining the application for remission. Id. at 102. We ultimately remanded to the Law Division because the record failed to demonstrate whether the surety made any efforts "to prevent deportation[,]" or to "return [the] defendant to New Jersey . . . ." Ibid.

In Ventura, however, the Court emphasized that remission was not appropriate when the defendant was a fugitive before deportation and remained outside the United States. 196 N.J. at 219. For example, one defendant was a fugitive from New Jersey and incarcerated in a Canadian facility when the surety filed its initial motion to vacate the forfeiture. Ibid. Bergen County lodged an appropriate detainer with Canadian authorities, and the trial court denied the surety's motion as premature because the surety could renew its motion when the defendant was returned to the United States. Ibid. The surety filed a second motion when Canadian officials deported the defendant to the Dominican Republic. Ibid. In the second case, the defendant was deported to Colombia while in North Carolina. Ibid. The surety had not intervened or monitored the deportation proceeding. Id. at 220. In each case, the Court affirmed orders denying remission of forfeiture. Id. at 219, 221.

In its ruling, the Court echoed the broader principles articulated previously in Poon. It emphasized that "[a] surety's essential responsibility is to guarantee not only the defendant's appearance at the scheduled court proceedings, but if the defendant is deported to make every effort to reapprehend the defendant." Id. at 221 (citing Mercado, supra, 329 N.J. Super. at 271).

Here, Safety National offered no information about the efforts it made to monitor and supervise defendants prior to their flight. In addition, the cases relied on by the surety, principally Ventura, Poon, and a recent unreported case from this court, are not controlling or even apposite. Here, defendants fled from not only New Jersey, but also the country. To be sure, the surety may not legally extricate defendants from Mexico. However, defendants' presence in Mexico is not the result of official action, but attributable to defendants' voluntary action to flee and to avoid prosecution. In the end, the surety failed to discharge its essential responsibility to assure defendants' presence at trial.

We, therefore, affirm the June 21, 2010 orders denying Safety National's motions to remit forfeiture of bail.

1 These appeals were calendared back-to-back. We consolidate these matters for purposes of opinion only.

2 The Guidelines contain three schedules to assist judges in determining bail remission. Remission Schedule 1 encompasses situations where a defendant is still a fugitive. Remission Schedule 2 covers situations where a defendant is no longer a fugitive and had not committed a new crime while a fugitive. Remission Schedule 3 applies to situations where a defendant committed a new crime while a fugitive.