STATE OF NEW JERSEY v. MARCELINO HERAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6061-10T1

A-6062-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCELINO HERAS,

Defendant,

and

BAIL MONSTER BAIL BONDS, L.L.C.,

Agent for FIRST INDEMNITY OF

AMERICA INSURANCE CO., as Surety,

Defendant-Appellant.

_________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO MONTERROSO,

Defendant,

and

KEY BAIL BONDS, L.L.C.,

Agent for FIRST INDEMNITY OF

AMERICA INSURANCE CO., as Surety,

Defendant-Appellant.

_______________________________

A

December 24, 2012

rgued April 16, 2012 - Decided

 

Before Judges A. A. Rodr guez and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-08-00327 (Docket No. A-6061-10) and Indictment No. 08-12-2033 (Docket No. A-6062-10).

 

Samuel M. Silver argued the cause for appellants.

 

Thomas F. Kelso, Middlesex County Counsel, attorney for respondent (Niki Athanasopoulos, Deputy County Counsel, on the brief).

 

PER CURIAM

These back-to-back appeals, which we hereby consolidate for purposes of this opinion, involve substantially similar circumstances. In both cases, the surety company posted bail for the defendant and the defendant was thereafter deported by federal authorities. The trial judge required the surety in each case to forfeit seventy percent of the posted bond, even though neither defendant had violated the terms of his bail and there was no evidence that the surety could have prevented their deportations. Because the seventy percent forfeiture in these circumstances was manifestly excessive and not in keeping with the applicable factors set forth in State v. Ventura, 196 N.J. 203, 216-18 (2008), we reverse the trial court's orders and remand for reconsideration.

I.

We summarize the pertinent facts separately for each case, drawn from the limited trial record.

Heras

On a date not specified in this record, defendant Marcelino Heras was charged by the State of New Jersey with robbery and two weapons offenses. He was arrested on those charges and held in the Middlesex County Adult Correction Center ("the MCACC").

On September 10, 2009, appellant Bail Monster Bail Bonds, L.L.C. ("Bail Monster"), acting as the agent of a surety company, First Indemnity of America ("First Indemnity" or "the surety"), posted a bond of $50,000 on behalf of Heras. The surety simultaneously executed a bail recognizance. However, Heras was not immediately released.

Four days after the surety's bond for Heras was posted, agents of the United States Department of Homeland Security met with Heras on September 14, 2009 at the MCACC. The agents served upon Heras a warrant for his arrest as an alien, thereby initiating steps for his deportation.

Heras's family informed Bail Monster's office that the federal agents had met with Heras at the MCACC. According to an affidavit of Bail Monster's principal, Eric Kaplan, his office then called the Middlesex County Criminal Case Management Office and advised that Heras was "about to be removed" from the MCACC. Thereafter, on October 6, 2009, Heras was transferred from the MCACC to the Hudson County Jail. Kaplan's office again contacted the Middlesex County Case Management Office and advised of Heras's new location.

As anticipated, on October 29, 2009, federal authorities removed Heras from the Hudson County Jail and he was deported from the United States. Consequently, Heras did not appear in any further criminal court proceedings in New Jersey.

On January 29, 2010, the trial court issued a bench warrant for Heras for his failure to appear at a previously-scheduled sentencing hearing1 in his case. The court also ordered forfeiture of the $50,000 in bail. The surety was notified in writing of the bail forfeiture.

The surety then moved in the trial court for relief. In particular, the surety requested to set aside the forfeiture, to exonerate itself from the bail bond, and to have the bond discharged. The surety relied on Kaplan's affidavit, which explained the circumstances and, in particular, the fact that Heras, despite the posting of the bond, had never been released from custody before he was deported.

The State opposed the surety's motion, contending that complete forfeiture of the bond posted for Heras was warranted. Among other things, the State submitted a certification from a representative of the county prosecutor's Fugitive Recovery Unit Task Force ("the Task Force"), which confirmed that Heras had been "transferred to another authority" on September 14, 2009. According to that certification, the Task Force did not know of Heras's October 2009 deportation until it found out about it on February 11, 2010 from the National Criminal Information Center ("NCIC") database. The Task Force representative certified that "to the best of [her] knowledge, the file does not indicate that the [prosecutor's office] was ever contacted by the surety regarding [Heras's] deportation, prior to [her] discovery of this information."

Monterroso

Pursuant to an indictment,2 a Middlesex County Grand Jury charged defendant Francisco Monterroso with multiple counts of conspiracy and theft. On April 9, 2009, First Indemnity, as surety, through its agent in this particular case, Key Bail Bonds, L.L.C. ("Key"), posted a bond of $100,000 on behalf of Monterroso. The surety also executed a bail recognizance authorizing Monterroso's release. After the bond was posted, Monterroso was released from custody.

According to an affidavit submitted by Antonio Fazzolari, a principal of Key, it is the usual practice of his company to advise defendants who are released on bond that they are to maintain regular contact with the surety, either by telephone, mail, or correspondence. The bonding agency also advised Monterroso that he was required to appear in court for each and every scheduled proceeding, and that bail jumping is a criminal offense.

While he was out on bail, Monterroso committed a motor vehicle infraction.3 The infraction resulted in Monterroso being held in the Monmouth County Correctional Institution ("MCCI") on what is termed an "agency hold," apparently at the behest of federal immigration authorities. According to Fazzolari's certification, he learned of Monterroso's placement at the MCCI on March 18, 2010. A few weeks later, on April 9, 2010, Fazzolari learned that Monterroso had been transferred from MCCI to the Essex County Jail. Later that month, Monterroso was taken by federal authorities from the Essex County Jail to a federal facility in Louisiana.

The federal authorities notified the Middlesex County Prosecutor's Office on April 27, 2010 that Monterroso was being held in federal custody in Louisiana, pending his deportation. Because the federal authorities apparently indicated that the issuance of a bench warrant by the state court could halt the deportation, an assistant prosecutor appeared that day before the trial court and requested such a bench warrant, in anticipation of a final proceeding in Monterroso's criminal case that had been previously scheduled for May 3, 2010.

On April 28, 2010, the trial court issued a bench warrant and ordered the forfeiture of Monterroso's bail. The prosecutor's office's Task Force entered the warrant that same day into the NCIC database and also faxed it to federal immigration authorities. Based on the earlier communications with the federal authorities, the assistant prosecutor anticipated that the immigration officials would delay Monterroso's deportation to allow the criminal proceedings to be completed in state court. Nevertheless, on May 3, 2010, the assistant prosecutor was informed that Monterroso had already been removed from the United States and was in flight to his native country. According to the assistant prosecutor, "to the best of [his] knowledge, the file does not indicate that the [prosecutor's office] was ever contacted by the surety regarding [Monterroso's] deportation, prior to [the assistant prosecutor's] discovery of this information."

As it had done in Heras, the surety moved to set aside the forfeiture in Monterroso, exonerate itself from the bond, and have the trial court discharge the bond. In support of its motion, the surety argued that it had acted reasonably in keeping the prosecutor abreast of Monterroso's status. The surety's counsel represented to the court that, in the aftermath of the terrorist attacks on September 11, 2001, the federal government has limited the amount of information that it shares with outside parties such as bail bondsmen.

The State similarly opposed the surety's motion in Monterroso, again contending that the surety had not acted reasonably. In particular, the State emphasized that the prosecutor had been advised of Monterroso's custody in Louisiana by federal authorities and not by the surety.

In testimony provided to the trial court, Fazzolari asserted that he had informed an investigator from the Middlesex County prosecutor's office of Monterroso's whereabouts in April 2010, once he had learned that Monterroso was being held in Monmouth County. According to Fazzolari, he told the investigator that Monterroso would not be appearing at his upcoming May 3, 2010 court date because he was being held on a federal immigration detainer. The State did not present testimony from the investigator to rebut Fazzolari's contentions in this regard. However, the State pointed out that if such notice actually had been provided, the information ordinarily would have been entered in the office's data system, which did not occur.

The Court's Ruling

The surety's motions were argued back-to-back,4 by the same opposing counsel, before the trial court on June 29, 2011. Following that hearing, the court issued a written opinion on July 7, 2011. In the Heras matter, the court granted the surety a thirty percent remission of the $50,000 bail. Similarly, in Monterroso, the court granted the surety a thirty percent remission of the $100,000 bail in that case.

In her written opinion, the trial judge applied various factors of the Judiciary's Guidelines for bail forfeiture ("the Guidelines").5 Based upon her analysis of these factors, the judge concluded that it was appropriate to make the surety forfeit seventy percent of the bonds that had been posted in both of these cases.

The judge acknowledged the Supreme Court's opinion in Ventura, supra, addressing the resolution of such bail forfeiture issues in the deportation context, including the Court's observation that "a surety's essential responsibility is to guarantee not only the defendant's appearance at the scheduled court proceedings, but that if defendant is deported to make every effort to re-apprehend the defendant." 196 N.J. at 221. The judge then made the following critical determination:

In all of the cases presently before this [c]ourt, the defendants[,] while compliant with the terms of their release, either voluntarily attended a deportation hearing or were brought there by the authorities and thereafter deported. Therefore, this [c]ourt will consider some degree of remission as there is no per se rule prohibiting remission in these types of cases. Weighing against remission, however, is the defendants' nonappearance and absence from the jurisdiction and the fact that the [s]ureties provided this [c]ourt with no evidence reflecting their efforts to prevent deportation or to request a delay of the immigration proceedings until after the disposition of the Middlesex County charges.

 

II.

 

The surety now appeals, contending that the imposition of a seventy percent forfeiture in both of these cases is inequitable, and contrary to the principles set forth in Ventura and the amended version of the Guidelines issued after Ventura was decided. The surety emphasizes that it had no power to prevent the federal immigration authorities from deporting either of these defendants. It also underscores that Heras was continuously in custody (first in state facilities, then in a federal facility) and thus he was never free to violate the conditions of his bail. As for Monterroso, the surety notes that, although he was released after bail was posted, he did not commit another criminal offense. Nor had Monterroso violated the conditions of his release before he was detained by federal authorities.

A.

Bail is available to "[a]ll persons" before conviction at terms set in the court's discretion to ensure their presence in court. R. 3:25-1(a). "[A] person admitted to bail shall, together with that person's sureties, sign and execute a recognizance," which "shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." R. 3:26-4(a). Rule 3:26-6(a) provides that when a bail condition is breached, the court shall, on its own motion, declare a forfeiture. Absent any objection by the surety, such a forfeiture judgment is ordinarily entered within seventy-five days of the forfeiture. Ibid.

Nevertheless, a bail forfeiture may be set aside by a court where enforcement "is not required in the interest of justice[.]" R. 3:26-6(b). A court may order a remission, in whole or in part, after a default judgment has been entered. R. 3:26-6(c).

There are two "overarching" policy considerations that a court should consider when evaluating a bail remission motion. State v. de la Hoya, 359 N.J. Super. 194, 199 (App. Div. 2003). The first is ensuring that a surety is properly incentivized to take "active and reasonable steps to recapture a fugitive defendant." Ibid. The second policy concern is that the unreasonable withholding of remission can lead to an unwillingness by corporate sureties to post bail. Ibid. Such unwillingness could thus impair defendants' constitutional right to pretrial bail. Ibid.

In general, "the decision to remit [bail] and the amount of remission lies essentially in the discretion of the trial court." Ventura, supra, 196 N.J. at 213 (citing State v. Peace, 63 N.J. 127, 129 (1973)). However, there are limits to the exercise of such discretion. The court must be guided by the "factors and policies that are relevant to the equitable exercise of [the court's] discretion." State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007) (emphasis added).

The burden of proof falls upon the surety seeking remission of a forfeiture to show that "it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986); see also State v. Fields, 137 N.J. Super. 79, 81 (App. Div. 1975).

In accordance with these principles recognized in the Court Rules and the case law, the Administrative Office of the Courts has promulgated an administrative directive, which has been amended several times, known as the Guidelines, containing standards for a trial court considering a bail remission motion. See generally Supplement to Directive #13-04, supra. The Guidelines list the following pertinent factors:

1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant.

 

2. Whether the applicant is a commercial bondsman.

 

3. The degree of surety's supervision of the defendant while he or she was released on bail.

 

4. The length of time the defendant is a fugitive.

 

5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's nonappearance, recapture and enforcement of the forfeiture.

 

6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.

 

7. The defendant's commission of another crime while a fugitive.

 

8. The amount of the posted bail. In determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its amount.

 

[Id. at 1-2 (citations omitted).]

 

As the Guidelines explicitly underscore, they are only a "starting point" to the trial court's analysis. Ibid. They offer three different remission schedules covering three common bail forfeiture scenarios:

1. where defendant is a fugitive when [the] remission motion is made

 

2. where defendant is not a fugitive when [the] remission motion is made and defendant did not commit a new crime while a fugitive

 

3. where defendant [is] not a fugitive when [the] remission motion [is] made and defendant did commit a new crime while a fugitive

 

[Id. at 4-8 (emphasis added).]

 

Under the first scenario, the Guidelines indicate that there should be no remission, except for a situation where a defendant is discovered out-of-state in custody and has not been returned to New Jersey. State v. Wilson, 395 N.J. Super. 221, 228-29 (App. Div. 2007). In that exception, the trial court is directed to consider whether the bail should be remitted at the time a detainer was lodged out-of-state, or, alternatively, should wait until the defendant is returned to New Jersey. Ibid.

In the second situation, involving no fugitive status and no new crime when the remission motion is made, the trial court following the Guidelines may order one of three levels of remission: "minimal" (0%-20%), "partial" (0%-75%), or "substantial" (0%-95%), based upon the surety's supervisory and recapture efforts and the length of time that the defendant was a fugitive. Supplement to Directive #13-04, supra, at 7.

Finally, in the third situation, in which the defendant is not a fugitive but has committed a new crime, the Guidelines again consider whether the surety made efforts to procure the defendant's appearance. However, the Guidelines in the third situation call for substantially lower percentages of remission at the upper end of the suggested ranges based upon the surety's efforts (i.e., 10%; 40%; and 60%). Id. at 8.

In Ventura, supra, the Court addressed the application of the Guidelines in the context of a defendant's deportation. 196 N.J. at 203. Factually, Ventura involved a consolidated appeal of two cases, State v. Ventura and State v. Granados. Id. at 206. Both cases involved sureties which had underwritten bail bonds for the two defendants, each of whom had fled New Jersey and were later deported to his home country. Ibid.

In Ventura, following a forfeiture order, the surety's investigations revealed that the defendant, on bail from Bergen County, had fled from New Jersey to Canada, where he was subsequently incarcerated on immigration charges. Id. at 207. The surety twice relayed Ventura's whereabouts to the Bergen County Prosecutor's Office, which then lodged a detainer on Ventura. Ibid. The trial court rejected the surety's exoneration motion at that time, but provided that when Ventura was returned the motion could be renewed. Id. at 208. Months later, after learning that Canada had deported Ventura to the Dominican Republic, the surety renewed its exoneration motion. Ibid. The trial court denied any remission because Ventura had never been produced and, thus, remained a fugitive. Ibid.

In the companion case analyzed by the Court in Ventura, State v. Granados, after bail was forfeited for his non-appearance, the bonded defendant from Middlesex County was discovered by the prosecutor's Task Force to be imprisoned in North Carolina. Id. at 209. A detainer was lodged there by Middlesex County, and repeated after Granados was transferred to federal custody. Id. at 209-10. Meanwhile, the trial court denied the surety's exoneration motion. Id. at 210. After it became clear that Granados had been deported to Colombia despite the detainer, the surety renewed its motion. Ibid. The trial court again denied remission, ruling that, despite the surety's supervision and efforts to locate Granados, its failure "'to intervene or impact upon the [immigration] status or deportation proceedings against this defendant,'" was dispositive of remission. Ibid. (quoting the trial court).

In reviewing these two cases, and the general issue of bail remission in a deportation context, the Supreme Court in Ventura observed that the hypothetical scenarios detailed in the Guidelines "are not a perfect fit when a defendant is deported from the United States while on bail." Id. at 216. Because such a defendant would be considered a "fugitive," a strict application of the Guidelines would place that defendant's situation into the first scenario and bar any remission. Ibid. However, the Court recognized that a surety's remission motion in such deportation contexts may be granted, at least in part, in light of the surety's often impossible task of securing the defendant's appearance. Ibid. (citing Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 369, 21 L. Ed. 287, 290 (1873) ("It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of law.")).

Apart from these mitigating principles set forth in Ventura, it is also important to recognize the processes by which defendants such as Heras and Monterroso typically come to the attention of federal immigration authorities. New Jersey law enforcement personnel, including county officials, are required to notify the federal authorities when they have arrested a person for an indictable offense whom they reasonably believe is an undocumented immigrant. See N.J. Attorney General, Directive # 2007-3 (Aug. 22, 2007), available at http://www.nj.gov/lps/dcj/agguide/directives/dir-le_dir-2007-3.p df; see also State v. Fajarado-Santos, 199 N.J. 520, 527 (2009). Pursuant to federal law, after the United States lodges a detainer on such a defendant, "the federal government takes custody of him or her 'without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.'" Fajarado-Santos, supra, 199 N.J. at 527 (quoting 8 U.S.C.A. 1226(c)(1)). Thus, once Heras and Monterroso were taken into state custody, it was exceedingly likely that they would be taken into federal custody on an immigration detainer.

B.

Although our scope of review is admittedly limited, we conclude that under the particular circumstances before us, the trial court's imposition of a seventy percent forfeiture in these two cases was excessive, and that it represents a misapplication of the court's discretion.

As Ventura instructs, a "crucial factor that the trial court should consider" is the defendant's status at the time of deportation. Id. at 218 (emphasis added). In particular, the trial court should focus upon "whether the defendant while compliant with the terms of his or her release, voluntarily attended a deportation hearing or was brought there by the authorities and thereafter was deported; or, whether the defendant was a fugitive when captured and then subsequently deported." Ibid. "If the former [situation applies], then some degree of remission should be considered; if the latter, then remission generally should be denied." Ibid. Here, the trial court specifically found that both Heras and Monterroso had been compliant with the conditions of their authorized release on bail.

By granting a degree of remission to the surety in both of the cases, the trial court partially adhered to the governing principles of Ventura. However, the thirty percent remission level selected by the court was insufficient in these circumstances to comport with basic principles of fairness, particularly in the Heras case. In both instances, defendants complied with the terms of their bonds. They did not fail to appear for a court proceeding without justification. Unlike the two defendants involved in Ventura and Granados, neither Heras nor Monterroso was shown to have committed another criminal offense. Nor did they violate the terms of their release after bail was posted. Although they were both eventually deported prior to the trial court's disposition of their offenses, the surety had no power to halt the federal deportation processes. Its representatives acted reasonably (if not instantly in the Monterroso case) by making the court officials aware of defendant's status, once learning about the federal detainers.

We recognize that one of the pertinent considerations that the Supreme Court discussed in Ventura was whether the surety had taken any steps to attempt to intervene in or to monitor the deportation proceedings, a point that the trial judge in the Granados case had found significant. Id. at 220. Here, the trial judge invoked this consideration in her opinion, noting that the surety had not shown "efforts to prevent deportation or to request a delay of the immigration proceedings until after the disposition of the Middlesex County charges."

The trial judge placed undue emphasis on this discrete observation in imposing a seventy percent forfeiture. Although we do not conclude that complete remission was mandated in either of these two cases, see Ventura, supra, 196 N.J. at 218 (noting that "[i]n most cases, remission of bail will not be appropriate unless the defendant has been returned to the jurisdiction of the court"), the thirty percent level of remission allowed in these matters was manifestly too low. The surety should not have been required in these particular circumstances to have forfeited the majority of the bond amounts.

We do not specify a precise higher level of remission that equitably should be accorded to the surety in each of these cases, but defer that question to further consideration by the trial court. We simply conclude that the thirty percent level adopted by the trial court was insufficient on these particular facts and needs to be increased in both cases.

For these reasons, the orders on appeal are reversed. Both matters are remanded for reconsideration, in light of the considerations expressed in Ventura and also in this opinion. We do not retain jurisdiction.

 

 

1 We have not been advised of the proposed terms of the sentence, or whether it was based upon any plea agreement.

2 A copy of the indictment has not been furnished in the record.

3 The specific nature of the infraction is not disclosed in the record, although the State does not contend that it was a criminal act.

4 A third case involving a bail remission motion was also argued that day, but the court's decision in that separate matter was not appealed.

5 N.J. Administrative Office of the Courts, Supplement to Directive #13-04, Further Revised Remittitur Guidelines (Nov. 17, 2004), available at, http://www.judiciary.state.nj.us /directive/2008/dir_1304_supplem ent_11_1208.pdf.