STATE OF NEW JERSEY v. GENESYS CARRASCO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3775-05T13775-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GENESYS CARRASCO,

Defendant,

and

SAFETY NATIONAL CASUALTY CORP.,

Appellant.

__________________________________________________

 
Argued telephonically February 22, 2007 - Decided March 7, 2007

Before Judges Parker and C.S. Fisher.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-00699-I.

Samuel M. Silver argued the cause for appellant.

Christopher J. Kane argued the cause for respondent (David S. Lafferty, attorney).

PER CURIAM

Defendant Genesys Carrasco was indicted and charged with a number of drug offenses. On August 11, 2004, bail was set at $75,000. Appellant Safety National Casualty Corp. (the surety) posted bond and defendant was released. When defendant failed to appear in court on May 16, 2005 as required, a notice was sent to the surety eight days later, advising that bail was ordered forfeited and that a warrant would issue for defendant unless the surety proceeded to have the forfeiture set aside within seventy-five days of the notice.

The record reflects that review of the bail circumstances was twice before the court for review -- on July 14, 2005 and October 5, 2005. The record does not indicate what occurred on those dates, but the fact that the matter was listed for review on these occasions again served as a reminder to the surety that bail remained forfeited in this matter.

In December 2005, more than six months after notice of the bail forfeiture, the surety moved in the trial court for the vacation of the forfeiture, for exoneration, and for the discharge of the bail bond. In support, the surety submitted only the short affidavit of counsel, which stated "[t]he surety has confirmed the whereabouts of the defendant," attached a page from Promis/Gavel indicating that the bail bond was discharged, and argued that "the interest of justice and fairness dictates that the forfeiture entered herein be vacated and the surety exonerated from further responsibility with respect to this matter."

We initially observe that the very language of the certification suggests that its content represents inadmissible hearsay. R. 1:6-6. Moreover, the surety made no effort in its moving papers to explain why it would have believed that the Promis/Gavel record was correct when everything else that had occurred since defendant failed to appear in court in May 2005, including his continued status as a fugitive, strongly suggested otherwise.

The trial judge denied the motion, correctly observing that a bail forfeiture notice was forwarded on May 24, 2005 and that "although perhaps some error had been made on the public access bail screen," this was no reason to exonerate the surety from its obligations in the matter. We agree.

Regardless of the Promis/Gavel error, the fact remains that defendant did not appear in court when required and, as confirmed during oral argument, he remains at large. "The purpose of bail is to secure the release of the accused from imprisonment pending disposition of the charge and to assure his presence in court when lawfully required in connection with that charge." State v. Mercado, 329 N.J. Super. 265, 271 (App. Div. 2000) (quoting State v. Rice, 137 N.J. Super. 593, 599 (Law Div. 1975), aff'd o.b., 148 N.J. Super. 145 (App. Div. 1977)). When seeking partial or total relief from such a forfeiture, the surety "bears a heavy burden to show that it has satisfied its essential obligation under the recognizance to secure the defendant's return to custody, and in the absence of this showing, the trial court may determine that the forfeiture should stand." State v. Mercado, supra, 329 N.J. Super. at 271.

Here, the sworn statement submitted by the surety in support of its motion for relief from the forfeiture does not indicate that the surety was in any way misled by what Promis/Gavel revealed or that this confusion continued for any substantial length of time. This contention was raised for the first time during oral argument on the motion, and was insufficient to support the relief sought, since the argument of an attorney alone cannot constitute evidence. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, __ U.S. __, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); Templeton Arms v. Fein, 220 N.J. Super. 1, 24 (App. Div. 1987). The inadequate factual basis for the motion alone justified the motion's denial. But, even if we read more into the surety's moving papers than can be found within its four corners, and even if we assume that the surety may have been misled by the incorrect information provided by Promis/Gavel, the fact remains that the surety has known that defendant has remained a fugitive since May 2005 and that every other event and every other bit of information accessible to the surety suggested that Promis/Gavel was in error.

The surety lastly argues that it should at least have been entitled to additional time to secure defendant's return. We find nothing in this record to suggest that the trial judge abused his discretion to refuse such relief. It would also serve no purpose to now permit that relief, particularly when the surety still has not produced the defendant despite the passage of one year since its motion was denied. Any confusion that may have been caused by the Promis/Gavel error was long ago clarified and still the surety has not produced the defendant. Accordingly, we must assume that even if the trial judge had granted additional time to the surety to produce the defendant before ruling on the motion, defendant still would be at large and the basis for the surety's claim for relief from the forfeiture would remain without substance.

 
The order of February 23, 2006, which denied the surety's motion to vacate the forfeiture and exonerate the surety, is affirmed.

(continued)

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5

A-3775-05T1

March 7, 2007