STATE OF NEW JERSEY v. JUAN PEREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6054-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN PEREZ, as Principal,

Defendant,

FIRST INDEMNITY OF AMERICA

INSURANCE COMPANY, Insurer-Surety,

Defendant-Appellant,

AJS BAIL BONDS, L.L.C., Bail

Agency-Surety and BRIAN

WEEMS, Bail Agent-Surety,

Defendants.

_______________________________

November 15, 2012

Argued September 19, 2012 - Decided

Before Judges Lihotz and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-3022.

Edgardo F. Galleno argued the cause for appellant.

Christopher J. Kane argued the cause for respondent.

PER CURIAM

Defendant Juan Perez failed to appear for a scheduled court appearance after posting bail. Following forfeiture of the bail, the corporate surety, defendant First Indemnity of America Insurance Company (First Indemnity), moved for remission of bail. First Indemnity appeals from a Law Division order denying its motion for remission of forfeiture. We affirm.

In July 2002, defendant was charged with manufacturing, distributing and dispensing controlled dangerous substances. Bail was set at $100,000, which he posted through a different surety. Defendant failed to appear and remained a fugitive for eight years. Defendant was returned to custody on March 31, 2010, and the court again set bail at $100,000. Defendant's family contacted AJS Bail Bonds (AJS), First Indemnity's bail agent, to post bail. Defendant failed to appear. A warrant for his arrest was issued and the bail was ordered forfeited on July 2, 2010.

A forfeiture notice was sent to First Indemnity, which filed a motion to vacate the forfeiture. In a supporting certification, Abraham Bashner, the Case Monitoring Supervisor for AJS, asserted the company had taken steps to verify defendant was a United States citizen prior to posting bail. However, defendant and the indemnitors had purportedly lied on the bail application; defendant was in fact a citizen of the Dominican Republic. First Indemnity claimed it confirmed defendant fled to his homeland and it had no way to seek his return. The certification stated it was difficult to supervise defendant, but made no mention of what measures, if any, were exerted.

The matter was heard on June 1, 2011. It was stipulated that prior to issuing the bond, AJS searched the Bergen County Sheriff s Department website to verify defendant's charges, citizenship and country of birth, so as to verify he was "an American citizen." Bashner testified the company checked defendant's birth certificate and matched his Social Security number against the information on the Bergen County Sheriff s Department website before posting defendant's bail. Also, credit checks were performed on defendant and his prospective indemnitors. Bashner acknowledged he did not perform a criminal history check on defendant, request his fingerprints or verify whether defendant's prior addresses were reviewed, as he was not the one who conducted defendant's interview. Bashner believed the person for whom bail was posted was not the Juan Perez listed on the county jail website and the imposter was located in the Dominican Republic, beyond the surety's reach to execute a warrant for his return.

AJS was working with a bounty hunter and Immigration and Customs Enforcement (ICE) to verify defendant's true identity and possibly locate him. Bashner also believed the indemnitors lied about their relationship with defendant and perpetuated the false identity to mislead the surety. The surety sought exoneration and remission of the forfeited bail.

The judge denied First Indemnity s motion to remit, concluding it failed to show forfeiture was inequitable under the circumstances. Mindful of the amount of the bond and the need to consider incentives for corporate sureties to provide bail bonds, the judge stated defendant remained a fugitive and suspicions of false representations of identity were unconfirmed. She entered judgment for the State in the entire amount of the bond and ordered payment within ninety days. First Indemnity appeals from the judgment entered on June 1, 2011.

Remission of a forfeited bail is authorized by N.J.S.A. 2A:162-8 and Rule 3:26-6,1 and the trial court's obligation to consider defined factors in its review is well-settled. State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).2 See State v. Peace, 63 N.J. 127, 129 (1973) (adopting the eight factors identified in Hyers when considering a motion to remit forfeited bail). Further, the Administrative Office of the Courts promulgated Directive #13-04,3 which provides a starting pointtoguide the trial court's handling of motions for remission, including the determination to remit a forfeiture and the amount of any remission. N.J. A.O.C. Directive No. 13-04, "Revision to Forms and Procedures Governing Bail and Bail Forfeitures," Attachment F, at 1-4, available at http://www.judiciary. state.nj.us/directive/criminal/dir1304.pdf (AOC Guidelines).

The determination to grant remission, in whole or in part, is left to the sound discretion of the trial judge. State v. Ventura, 196 N.J. 203, 213 (2008). Our review considers whether the judge's exercise of discretion was proper. Id. at 206. The surety seeking to vacate the forfeiture judgment bears the burden of demonstrating remission is justified. Id. at 213 (citing State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975)).

On appeal, First Indemnity argues the trial judge mistakenly exercised her discretion when denying the motion to remit forfeiture of the bond, noting the judge mistakenly found the claims regarding defendant's immigration status were not supported, and only speculative. First Indemnity asserts it properly relied on a check of the county jail's website, which reflected no filed immigration detainer. First Indemnity also maintains, prior to posting bail, it made reasonable efforts to verify defendant's status, but was duped by defendant's deception and the collusion of the indemnitors. First Indemnity's arguments suggest the trial court failed to consider its efforts to locate defendant, maintaining defendant cannot be returned to the jurisdiction, warranting remission. We disagree.

Critical to the trial court's denial of remission is the fact defendant remains at large. See Ventura, supra, 196 N.J. at 206 (holding a defendant's fugitive status is a crucial factor in bail remission cases). The AOC Guidelines suggest "[w]here 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." N.J. A.O.C. Directive No. 13-04, supra, at 2 (citing State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003)).

Further, the trial judge found AJS relied on the paperwork submitted and verbal representations made by defendant, rather than obtaining independent confirmation by fingerprinting or verifying his prior addresses and employment, and criminal history, which incidentally would have revealed defendant's prior failure to appear, former fugitive status, and inconsistencies in stated personal information. The judge noted First Indemnity's theory that defendant was an imposter and at large in a foreign jurisdiction beyond reach of the New Jersey arrest warrant had not been confirmed.

We note these additional points. First, there was no information offered to support the surety's claims of supervision pending defendant's release to ensure his presence at trial. Second, Bashner confirmed he had not exerted efforts to enforce payment by the indemnitors, who he believed would be more cooperative in disclosing defendant's whereabouts once they were required to satisfy the recognizance.

We are satisfied the trial judge's findings fully weighed the applicable factors when considering a request to remit forfeited bail, including the important role of commercial sureties. Nevertheless, First Indemnity failed to show it reasonably, but unsuccessfully, exercised efforts to secure defendant's appearance once he fled and to return him to the jurisdiction. Based on the facts in this record, we do not find denial of exoneration or ordering First Indemnity responsible for the full amount of the bond reflects an abuse of discretion warranting reversal. Harmon, supra, 361 N.J. Super. at 255.

Affirmed.

1 N.J.S.A. 2A:162-8 allows a court "in its discretion, [to] order the return of the moneys . . . forfeited [through] recognizance[.]" Moreover, a court may set aside an order of forfeiture if its enforcement is not "required in the interest of justice," R. 3:26-6(b), and may "remit [a default judgment] in whole or in part in the interest of justice." R. 3:26-6(c).

2 These factors include:

(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 bondman 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; (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.

[Hyers, supra, 122 N.J.Super. at 180.]

3 Directive #13-04 was issued in 2004 and supplemented in 2007 and 2008.