STATE OF NEW JERSEY v. JIMMY MORILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY MORILLO and

OCTAVIA BAIL BONDS,

Defendants,

and

INTERNATIONAL FIDELITY

INSURANCE CO.,

Defendant-Appellant.

July 25, 2013

Submitted April 23, 2013 Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-04-0697, and 10-10-1808.

Richard P. Blender, attorney for appellant.

Chasan Leyner & Lamparello, PC, attorneys for respondent County of Hudson (Mitzy Galis-Menendez, of counsel and on the brief; Maria P. Vallejo, on the brief).

PER CURIAM

International Fidelity Insurance Company (International Fidelity) appeals from a March 27, 2012 order partially granting its motion for remission of forfeiture of defendant Jimmy Morillo's bail.1 Remission was granted in the amount of $15,000, but a judgment in the amount of $60,000 was entered against the corporate surety. On this appeal, International Fidelity contends that by virtue of the parties' mutual mistake with regard to a particular warrant for Morillo's arrest, that the corporate surety should be entitled to relief from the bail forfeiture order. We affirm.

The material facts are as follows. A $75,000 bail was posted on December 28, 2009, by the surety agent securing Morillo's release on charges of eluding a law enforcement officer, N.J.S.A. 2C:29-2(b), possession of burglary tools, N.J.S.A. 2C:5-5, and receiving stolen property, N.J.S.A. 2C:20-7(a).2 At that time, Morillo had an outstanding open warrant in Somerset County dating back to May 8, 2003. Through some administrative oversight, this information was not available to either counsel or the court when the bail was set.

The surety agent, counsel, and the court were aware, however, that Morillo was a fugitive who had two other warrants outstanding for failure to appear: on charges of forgery in 2008 and assault in 2009 from Bergen County, and of an offense designated as "permit purchase-fire" in 2004 and obstruction in 2009 from Essex County.3 In fact, Morillo was transported to Essex County on January 8, 2010, to address the outstanding charges there for which he had previously failed to appear.

Morillo failed to appear for a pre-arraignment interview five months after bail was posted in these matters. His bail was forfeited on May 3, 2010.

On May 7, 2010, notice of bail forfeiture was served on the surety agent and on July 26, 2010, a default judgment was entered. On May 3, 2011, Octavia Bail Bonds and International Fidelity filed a motion to extend the time in which to surrender Morillo. The proceedings were stayed, initially, to May 18, 2011. Thereafter, they were stayed again on June 3, 2011, June 17, 2011, August 2, 2011, and August 24, 2011.

In the intervening months, it was learned Morillo had the 2003 outstanding open warrant from Somerset. The surety agent did not engage in any monitoring efforts whatsoever. It was aware that Morillo had a court appearance scheduled for February 19, 2010, and logged entries regarding Morillo's continued fugitive status.

The court ordered a twenty percent remission after hearing oral argument on February 29, 2012. A written decision was thereafter rendered on March 27, 2012.

In granting partial remission, the trial judge noted Morillo's continuing fugitive status. As a result, the judge found "the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate." Additionally, during the five months between the posting of the bail and Morillo's failure to appear, the surety agent did not monitor Morillo or even attempt to contact him. This lack of monitoring was a significant consideration in the court's decision. The surety agent learned of Morillo's failure to appear when notified by the court. The court concluded that the surety agent's argument with regard to mutual mistake, misrepresentation, or impossibility of performance simply did not apply to the situation at hand nor did any of the cases cited support that theory. In recognition of the argument that neither the State nor the surety had been aware of the 2003 warrant, however, despite Morillo's continued status as a fugitive, the court granted partial remission.

On appeal, International Fidelity raises the following issues for our consideration:

I. A SURETY IS ENTITLED TO RELIEF FROM A BAIL FORFEITURE WHEN, BY MUTUAL MISTAKE, IT POSTED BAIL UNAWARE THE DEFENDANT HAD AN OUTSTANDING BENCH WARRANT

II. IT IS INEQUITABLE TO FORFEIT BAIL WHEN THE PARTIES MADE A MUTUAL MISTAKE

The June 2003 Administrative Directive No. 13-04 captioned "Revision to Forms and Procedures Governing Bail and Bail Forfeitures," states in Attachment F as follows:

WHERE DEFENDANT IS A FUGITIVE WHEN REMISSION MOTION IS MADE[:] No Remission

In other words, the essential undertaking of the surety remains unsatisfied when a defendant continues to be a fugitive at the time the remission motion is addressed, making denial of any remission appropriate. See State v. Ramirez, 378 N.J. Super. 355, 367 (App. Div. 2005) (quoting Administrative Directive No. 13-04). Even if a defendant is not a fugitive when the remission motion is addressed and did not commit a crime while a fugitive, but the surety provides minimal or no supervision and fails to engage in immediate substantial efforts to recapture a defendant, only minimal remission is warranted. Ibid. To our knowledge, other than tracking that Morillo continued to be a fugitive, the surety agent in this case took no action whatsoever in order to attempt to locate him.

For these reasons, we affirm the court's findings as consistent with established precedent as well as the guidelines governing bail forfeitures. We do not reach the surety's contractual arguments for the reason that they are premised on a fact not supported by the record. At the time the $75,000 bail was posted, the surety agent was aware that Morillo had outstanding warrants for nonappearances in two other counties, in fact, was transferred to one of them while still in custody on the charges for which the surety posted bail. The specific 2003 Somerset County warrant was not known, but the surety agent was on notice that Morillo had a substantial failure to appear history. Hence we do not reach the merits of Fidelity Insurance's argument, as the record does not support it.

1 Judgment was also entered against Octavia Bail Bonds, International Fidelity's surety agent.

2 The record does not contain more detailed information regarding the offenses such as the degree of the crime.

3 No more specific information is available from the record on appeal regarding these offenses. The trial judge in her opinion referred to Morillo as having outstanding warrants from the Union City and Newark Municipal Courts. It is not clear if these are the same offenses.