Opinion
DOCKET NO. A-0920-11T1
03-05-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HECTOR ROSARIO GUADALUPE, Defendant, and ALLEGHENY CASUALTY COMPANY, (SURETY), Defendant-Appellant.
Richard P. Blender, attorney for appellant. James F. Ferguson, Atlantic County Counsel, attorney for respondent (Donna M. Taylor, Assistant County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-10-2522-D.
Richard P. Blender, attorney for appellant.
James F. Ferguson, Atlantic County Counsel, attorney for respondent (Donna M. Taylor, Assistant County Counsel, on the brief). PER CURIAM
Allegheny Casualty Co. (Allegheny) appeals from an order entered by the Law Division on September 19, 2011, denying its motion for remission of a bail forfeiture. We reverse and remand for further proceedings.
This appeal arises from the following facts. On August 23, 2009, defendant Hector Rosario-Guadalupe was arrested and charged with receiving stolen property, N.J.S.A. 2C:20-7(a); burglary, N.J.S.A. 2C:18-2(a)(1); and criminal trespass, N.J.S.A. 2C:18-3(a). On August 25, 2009, defendant was released on a $10,000 bail bond posted by Allegheny.
On his application for a bail bond, defendant stated that he was born in Puerto Rico, but had been residing here for four years. Defendant provided a mailing address in Egg Harbor Township, New Jersey. He indicated that he had a driver's license issued in Puerto Rico. He stated that he was single, but provided the name of a person he identified as his wife. He also provided his wife's phone number, which had an area code in Puerto Rico.
On January 15, 2010, defendant was admitted to pretrial intervention (PTI). It appears that defendant provided a Puerto Rico address on his application for admission to PTI. Defendant did not appear for a PTI-termination hearing on April 16, 2010, and on April 29, 2010, the court issued a notice to Allegheny stating that bail had been forfeited. On July 14, 2010, the court entered a judgment against defendant and Allegheny in the amount of $10,000 forfeiting bail.
On January 16, 2011, Allegheny filed a motion to vacate the judgment and discharge bail. In support of its motion, Allegheny submitted a certification of Richard Sparano (Sparano), Allegheny's agent and owner of AA Bail Bonds. Sparano stated that after defendant was released on bail, his office kept "close contact" with him to ensure his appearance in court. Defendant had been required to report to Sparano's office and, according to Sparano, did so on a regular basis.
Sparano noted that defendant was admitted to PTI in January 2010. Defendant failed to complete the conditions of the program, and he was terminated from PTI. Bail was forfeited after defendant failed to appear in court. Sparano's office immediately commenced an investigation to locate defendant, and learned that defendant was in Puerto Rico.
Sparano's investigator contacted the Atlantic County Criminal Case Manager's Office for information. The investigators were told that, after defendant was admitted to PTI, he was given permission to go to Puerto Rico. Sparano's office was not contacted and would never have agreed to allow defendant to leave New Jersey until the matter was resolved.
Sparano additionally stated that the warrant for defendant's arrest was limited to "the tri-state region, making it impossible to even apprehend the defendant in Puerto Rico and have him returned to New Jersey." He provided the court with a copy of a letter from Betsy Phillips, Chief Assistant County Prosecutor, which stated that the geographical limits in the warrant would not be changed.
The trial court considered Allegheny's application on August 16, 2011. After hearing oral argument, the court placed its decision on the record. The court stated that it was not unusual for individuals to be admitted to PTI and supervised from outside of New Jersey. The court pointed out that Puerto Rico is "part" of the United States and persons born there are United States citizens.
The court stated that Allegheny had not provided sufficient information regarding its supervision of defendant at or around the time he applied for admission to PTI. The court noted that when defendant was released on bail, he was not precluded from leaving New Jersey, which is usually the case.
The court added that Allegheny may not have read defendant's bail application "closely enough." The court said that there "were plenty of clues" suggesting "a current ongoing connection to Puerto Rico" and some question as to whether Allegheny engaged in appropriate supervision of defendant in late 2009 and early 2010, "when the PTI process" was unfolding.
The court observed that defendant's admission to PTI "did not involve some conscious exercise of discretion to allow the defendant to live in Puerto Rico, [and] to leave New Jersey." Apparently, the PTI administrator believed it was "practical" to supervise defendant while he was in Puerto Rico.
This was, however, not an official decision allowing defendant "to pick up and leave New Jersey . . . and go to Puerto Rico." The court stated that
The long and short of it is [defendant] was judged eligible for a court program that is made available to first-time offenders in appropriate situations. And he was making his application from Puerto Rico and it was granted.The court entered an order denying Allegheny's motion. This appeal followed.
So putting all of those things together, . . . the surety has [not] met its burden to prove that forfeiture is inequitable here. The State certainly has shown that the defendant failed to appear on April 16, 2010 and that defendant's still in fugitive status. . . .
Allegheny argues that it was entitled to relief from the bail forfeiture because the State allowed defendant to move to Puerto Rico without its consent. Allegheny contends that this was a substantial modification of the terms of the bond, which relieved it of its obligation as surety. Allegheny additionally argues that it is entitled to relief from the bail forfeiture because the State refused to modify the terms of the warrant so that it could secure defendant's return to New Jersey from Puerto Rico.
"It has long been recognized that a bail bond constitutes a surety agreement in which the defendant is the principal and the creditor is the State." State v. Ceylan, 352 N.J. Super. 139, 143 (App. Div.) (citing State v. Weissenburger, 189 N.J. Super. 172, 176 (App. Div. 1983)), certif. denied, 174 N.J. 545 (2002). "A modification of the terms of the surety agreement by the principal and creditor without the surety's consent operates to discharge the surety, if the modification materially increases the risk assumed." Ibid. (citing State v. Vendrell, 197 N.J. Super. 232, 237 (App. Div. 1984); Weissenburger, supra, 189 N.J. Super. at 176).
Here, the trial court found that defendant's return to Puerto Rico did not materially increase the risk that Allegheny assumed when it issued the bail bond. The court stated that defendant provided sufficient information in his bail bond application to place Allegheny on notice of his connections to Puerto Rico. The court essentially found that Allegheny knew or should have known of the risk that defendant would flee to Puerto Rico and not appear for scheduled court appearances.
In our view, there is insufficient support in the record for the court's findings. Defendant's bail bond application indicated that he had certain connections to Puerto Rico. Defendant stated that he was born in Puerto Rico. He noted that he had a driver's license issued in that territory. He also identified a person as his wife and provided her phone number, which had a Puerto Rico area code. However, defendant stated that he had been living here for four years and he provided a residential address in Egg Harbor Township.
We are not convinced that the information set forth in the application placed Allegheny on notice that defendant might leave New Jersey, travel to Puerto Rico and not return for required court appearances. Indeed, as the trial court recognized in its decision, ordinarilly persons released on bail are not permitted to leave New Jersey.
The court also noted that defendant's PTI application had a Puerto Rico address. The court said that Allegheny had not provided sufficient information regarding its supervision of defendant between the time he applied for PTI and his participation in that program. The court thus suggested that, had Allegheny appropriately supervised defendant during this time, it would have known that he was either living in Puerto Rico or had been permitted to travel and report from that territory.
There was, however, no indication that defendant ever provided Allegheny with a copy of his PTI application. There is nothing in the record indicating that the PTI program agreed that defendant could travel to Puerto Rico, or report to the program by phone from that territory. Even if such permission had been granted, there is no evidence indicating that Allegheny was told. Indeed, Sparano's statement that Allegheny never consented to defendant's return to Puerto Rico is unrefuted.
The court additionally noted that Allegheny had not provided any details regarding its supervision of defendant in the time he was involved with the PTI program. However, Sparano stated in his certification that his office "closely supervised" defendant. We cannot determine based on the record before us whether Allegheny's supervision of defendant was inadequate or whether, with better supervision, Allegheny would have been on notice of the possibility that defendant would flee to Puerto Rico.
We therefore conclude that the trial court must reconsider its denial of Allegheny's motion to remit the forfeiture. The court must determine whether the State altered the conditions upon which Allegheny agreed to issue the bond and, if so, whether the change was so substantial that it relieved Allegheny of its obligations under the bond.
In resolving this question, the court must consider and address the following: (1) whether defendant provided Allegheny a copy of his PTI application; (2) whether the PTI administrator allowed defendant to travel to Puerto Rico; (3) whether defendant was permitted to report to the PTI program from Puerto Rico; and (4) whether Allegheny adequately supervised defendant when he sought PTI admission and during his participation in that program. The court must determine, based on all of the facts and circumstances, whether Allegheny knew or should have known that defendant might flee to Puerto Rico and fail to return for required court appearances.
If the court concludes that the State did not materially alter the terms of the surety argreement, Allegheny may nevertheless be entitled to full or partial relief from the bail forfeiture. Generally, a bail forfeiture may be set aside "in whole or in part, if its enforcement is not required in the interest of justice upon such conditions" as the court may impose. R. 3:26-6(b).
The decision to remit a bail forfeiture and the amount of the remission is committed to the discretion of the court. State v. Ventura, 196 N.J. 203, 213 (2008) (citing State v. Peace, 63 N.J. 127, 129 (1973)). In determining whether to remit a bail forfeiture, the court considers:
(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 bondsman's efforts to insure the return of the fugitive; (d) the time elapsed between the date ordered for 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; [and] (g) whether reimbursement of the expenses incurred in (f) will adequately satisfy the interests of justice.
[Ibid. (quoting State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973).]
In this case, defendant was still a fugitive when Allegheny sought remission of the bail forfeiture. That fact may be sufficient to justify denial of remission. Id. at 215 (citing State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003)). See also N.J. Administrative Office of the Courts, Supplement to Directive #13-04, Further Revised Remittitur Guidelines, at 6 (Nov. 17, 2004), (the Remmittitur Guidelines). However, as the record shows, Allegheny was precluded from securing defendant's return from Puerto Rico because the Atlantic County Prosecutor's Office refused to alter the terms of the warrant.
While the State has discretion to refuse to assist in Allegheny's efforts to have defendant returned to this jurisdiction, its refusal to modify the warrant has essentially precluded Allegheny from fulfilling the essential obligation of the bond, which is to ensure defendant's appearance. Ceylan, supra, 352 N.J. Super. at 143 (citing State v. Korecky, 169 N.J. 364, 373 (2001); State v. Rice, 137 N.J. Super. 593, 599-600 (Law Div. 1975), aff'd o.b., 148 N.J. Super. 145 (App. Div. 1977)).
We are convinced that, under the circumstances, the trial court should not have given any weight to defendant's continued fugitive status in determining whether to remit the forfeited bail in whole or in part. If the court determines that Allegheny should not be relieved of its surety obligation due to a material change in the conditions upon which it issued the bond, the court should reconsider its decision to deny relief from the bail forfeiture. The court should determine, based upon its consideration of the other relevant factors and the Remmittitur Guidelines, whether Allegheny should be granted partial or complete relief from the bail forfeiture.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION