STATE OF NEW JERSEY v. EFRAIN GONZALES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2894-06T12894-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EFRAIN GONZALES,

Defendant,

and

ACCREDITED SURETY AND

CASUALTY COMPANY, INC.,

(SURETY),

Defendant-Appellant.

________________________________

 

Argued October 22, 2007 - Decided

Before Judges Weissbard and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-06-01150.

Samuel M. Silver argued the cause for appellant.

Christopher J. Kane argued the cause for respondent (Law Offices of David S. Lafferty, P.C., attorneys; Mr. Kane, of counsel and on the brief).

PER CURIAM

Accredited Surety and Casualty Company, Inc. (the Surety), appeals from the January 17, 2006, order of the Law Division that entered judgment against the Surety in the amount of $600,000. We reverse and remand the matter to the Law Division for further proceedings consistent with this opinion.

On March 27, 2006, the Surety, through its agent, Atlas Bail Bonds, posted a $600,000 bail bond to secure the pre-trial release of defendant, an individual then identified as Efrain Gonzales, a/k/a Efrain Gonzales-Vega. After defendant failed to appear for arraignment on August 14, 2006, the bail was forfeited, and a warrant was issued for defendant's arrest. A notice of bail forfeiture was sent to the Surety the following day. R. 3:26-6(a). Pursuant to the rule, the notice of bail forfeiture contained advice that "[u]nless [Surety] proceeds to have the forfeiture set aside within 75 calendar days of the date of this notice, default judgment will be entered for the full amount posted."

On or about October 25, 2006, prior to the expiration of the Surety's seventy-five-day grace period to move for vacation of the bail forfeiture, R. 3:26-6(c), the Surety filed a motion requesting "that [it] be granted additional time in which to surrender the defendant, and that the entry of judgment be stayed accordingly." The motion was supported by an affidavit from Daniel Cody, an agent of Atlas, stating that Atlas had: "been in constant contact with the listed indemnitors and family members to learn the whereabouts of defendant;" 2) "been informed by the Bergen County Prosecutor's Office that defendant's name is false;" 3) "used due diligence in verifying defendant's information prior to issuing the bail bond;" and 4) "retained a bounty hunter who flew to Puerto Rico for the purpose of apprehending defendant." The affidavit also provided that the bounty hunter was unsuccessful because the individual whom he had located was not defendant, but the true Efrain Gonzales whose identity had previously been stolen.

The Surety's motion was argued on January 17, 2006. In opposition to the court entering judgment, the Surety argued the doctrine of mutual mistake. "I think in this particular case this is an instance of mutual mistake. He was booked into the jail under the name of Efrain Gonzales with all of the identifiers. When the bondsman entered into the agreement, he didn't get Efrain Gonzales." The Law Division judge rejected the Surety's argument and entered judgment against the Surety in the amount of $600,000, impliedly denying the Surety's motion for an extension of time to surrender defendant. Ruling on the motion, the judge stated: "I'll enter judgment. He's not here." A confirming order was entered the same day. On February 21, 2006, a consent order was entered, staying the judgment for twenty days, pending appeal. In the interim, the Surety appealed. On March 28, 2006, an order was entered in the Law Division denying the Surety's motion for a further stay of the judgment.

On appeal, the Surety argues that the trial judge erred in determining that it should forfeit the entire amount of the bond, contending that it should have been relieved of its contract because of the mutual mistake of the State and the Surety concerning the identity of the individual released on the bond. The Surety asserts that it was assumed by both parties to the contract that defendant was who he said he was, and that defendant's documentation seemed to confirm his identity. In addition, the Surety argues that it should be released from its obligation on the bond under the doctrine of impossibility or impracticability of performance because, although the Surety can produce an individual known as Efrain Gonzales, the State does not want that person but rather the person released to the Surety on March 27, 2006. Alternatively, the Surety asserts that it was entitled to exoneration or a partial remission under the Remittitur Guidelines and case law governing bail bond remissions. Lastly, the Surety argues that the trial judge erred by failing to articulate his findings of fact and conclusions of law. R. 1:7-4.

In addition, while this appeal was pending and shortly before oral argument date, the Surety filed a motion in the Law Division seeking to expand the record of the January 17, 2007 proceeding to include a second affidavit of Daniel Cody. The affidavit referenced a February 24, 2006, memorandum from a detective of the Bergen County Prosecutor's Office, indicating that the Prosecutor's Office had been aware that the true identity of the defendant was Rafael Torres, prior to the Surety posting the bail bond. The detective's memorandum stated that defendant had been previously arrested by the Federal Drug Enforcement Administration in Florida, after which arrest he "became a fugitive from justice." Cody states in the affidavit that if the information pertaining to defendant's true identity had been made available to the Surety prior to the Surety posting the bail bond, he would not have allowed the bond to have been issued. Because jurisdiction over the proceedings rested with the Appellate Division, not the trial court, the motion was denied. R. 2:9-1(a). A confirming order was entered on October 16, 2007. On the same date, the Surety filed an identical motion with the Appellate Division which we entertained at oral argument.

Although Rule 3:26-6 does not provide for a motion to extend time to surrender a defendant, it does permit a Surety to file a motion objecting to the entry of judgment after a bail forfeiture, and directs that "[t]he court shall not enter judgment until the merits of any objection are determined either on the papers filed, or, if the court so orders for good cause, at a hearing." R. 3:26-6(a). We consider the Surety's original motion in the Law Division as an objection to entry of judgment. Accordingly, the trial court was required to find facts and state its conclusions of law when ruling on the motion. R. 1:7-4. However, it did not. Absence of such reasons precludes meaningful appellate review. Raspantini v. Arocho, 364 N.J. Super. 528, 532-33 (App. Div. 2003).

We remand the matter to the trial court to make findings of fact and conclusions of law on the Surety's original motion. On remand, the trial court should also address the Surety's motion to expand the record, and if granted, the weight to be given to the affidavit and its attachments. We take no position on the merits of the motion to expand the record. On remand, the State may cross-move to supplement the record. Lastly, at the same time, the Surety may move to vacate the bail forfeiture, or in the alternative, seek a remission of all or part of the bail forfeiture. R. 3:26-6(a) and (b).

 
We reverse the order of judgment of January 17, 2006, and remand the matter to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

See Administrative Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures, Attachment F (November 17, 2004) (Guidelines). The Guidelines were amended by a supplement to Administrative Directive #13-04 on October 9, 2007.

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A-2894-06T1

November 8, 2007