Opinion
DOCKET NO. A-5833-12T1 DOCKET NO. A-5834-12T1
07-10-2014
STATE OF NEW JERSEY, Plaintiff, v. RAMON E. FELIPE, Defendant, and BIG LOU'S BAIL BONDS, INC., AGENT OF AMERICAN CONTRACTORS COMPANY, Surety-Appellant. STATE OF NEW JERSEY, Plaintiff, v. FELIX PADILLA ORTEGA, Defendant, and BIG LOU'S BAIL BONDS, INC., AGENT OF AMERICAN CONTRACTORS COMPANY, Surety-Appellant.
Samuel M. Silver, attorney for appellant. Maria P. Vallejo argued the cause for respondent Hudson County (Chasan Leyner & Lamparello, attorneys; Ms. Vallejo, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 11-01-0035 and 10-12-2205.
Samuel M. Silver, attorney for appellant.
Maria P. Vallejo argued the cause for respondent Hudson County (Chasan Leyner & Lamparello, attorneys; Ms. Vallejo, of counsel and on the brief). PER CURIAM
These are consolidated appeals in which Big Lou's Bail Bonds, Inc., agent of American Contractors Company, challenges the decision of the trial court upholding the forfeiture of two surety bail bonds without remission of any kind. Both defendants are citizens of the Dominican Republic who surrendered their passports to appellant as a condition of their surety agreements. Both defendants absconded to the Dominican Republic in violation of their bail status. Although appellant claims it had located both men, both defendants remained defiant and have refused to voluntarily return to this country and face prosecution for their respective charges in Hudson County.
Although the appellate record contains only one document showing that Felix Padilla Ortega was specifically required to surrender his "travel documents" as a condition of bail, counsel for appellant assured us at oral argument that a representative of Big Lou's Bail Bonds took custody of Ramon Felipe's passport as a condition of his surety agreement.
The Hudson County Prosecutor's Office has advised both the trial court and this court that it will not take any efforts to extradite defendants. Appellant argued to the court, and reiterates here, that the Hudson County Prosecutor's Office's unwillingness to make any efforts to extradite defendants should be considered grounds to vacate the judgment of forfeiture. Alternatively, appellant asserts the court should have considered the Prosecutor's position as a mitigating factor to order some measure of remission. The trial court rejected both of these arguments. We affirm.
The trial court also found appellant had not established grounds for remission due to its failure to properly supervise defendants. State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973); R. 3:26-6(b). Because we agree that forfeiture was warranted based on defendants' voluntary absence from the United States, we need not and specifically do not reach this part of the trial court's analysis.
STATE V. RAMON E. FELIPE
On September 1, 2010, appellant posted a bond in the amount of $30,000 to secure the release pending trial of Ramon E. Felipe. The court first issued a bench warrant and order of forfeiture of bail on April 28, 2011, when Felipe failed to appear at a court-ordered status conference. The court vacated these orders and reinstated Felipe's bail on May 26, 2011, when it confirmed Felipe had suffered a seizure on a bus.
Felipe was charged with second degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3); third degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); third degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and third degree distribution of a controlled dangerous substance within 500 feet of public housing, N.J.S.A. 2C:35-7.1a. We note that N.J.S.A. 2C:35-7.1a makes this crime a third degree offense only "if the violation involved less than one ounce of marijuana." However, we cannot verify the accuracy of these charges because the appellate record does not include a copy of the indictment or original charging documents.
The trial court again ordered a bench warrant and forfeiture of Felipe's bail on October 20, 2011, when he failed to appear at a court-ordered hearing. Appellant received the notice of forfeiture on November 14, 2011. Felipe is a citizen of the Dominican Republic. Based on the investigation that followed, appellant confirmed that Felipe had shipped all of his clothing to the Dominican Republic. By order dated April 27, 2012, the court granted appellant's application and stayed the entry and execution of final judgment of forfeiture.
On May 17, 2012, appellant submitted a notarized statement, signed by a representative of Big Lou's Bail Bonds and a woman identifying herself as Felipe's wife, claiming that "[a]rrangements are being made for Mr. Felipe to surrender himself in to Big Lou's Bails Bonds on [sic] within 60 days." The next relevant communication is in the form of a letter dated September 30, 2012, written by Wilson Rood, who identified himself as an "Attorney at Law" in Santo Domingo, Dominican Republic. In this letter addressed to "Martin Melendez, Big Lou's Bails Bonds," Mr. Rood alleged that "Mr. Felix Padilla Ortega and Ramon Felipe are currently residing in the Dominican Republic at this time. The local authorities require a provisional warrant in order to [i]nitiate the extradition procedure." (Emphasis added).
STATE V. FELIX PADILLA ORTEGA
On September 15, 2010, appellant posted a bail bond in the amount of $75,000 to secure the release pending trial of Felix Padilla Ortega. The trial court found that on September 29, 2010, just two weeks after his release on bail, Padilla Ortega "stopped reporting to the Agent's office." Padilla Ortega's family thereafter confirmed that he had left for the Dominican Republic on October 13, 2010, in direct violation of his court-ordered travel restrictions. The court issued a bench warrant and an order of bail forfeiture on February 3, 2011, when defendant failed to appear at a court-ordered status conference. Appellant received notice of the forfeiture order on February 9, 2011.
As described in the forfeiture court's decision, Padilla Ortega was charged with third degree possession of a prescription drug with intent to distribute, N.J.S.A. 2C:35-10.5a(4). The appellate record does not include a copy of the charging document.
As noted earlier in describing the circumstances facing Felipe, an agent of Big Lou's Bails Bonds confirmed that Padilla Ortega was indeed "residing" in the Dominican Republic. Despite these facts, the court granted appellant a stay of final judgment of forfeiture on August 2, 2012 and August 24, 2012.
Against this backdrop, the trial court rejected appellant's argument that it is entitled to remission "because the Hudson County Prosecutor's Office denied assistance of the surety's recovery efforts by refusing to approve funding to assist in the Defendants' apprehension from the Dominican Republic[.]" In reaching this conclusion, the trial court accepted, without specific legal authoritative support, the Hudson County Prosecutor's Office's representation that
Appellant's appendix includes an untitled one page document with the caption: "Extradition from the Caribbean to the United States[.]" The attorneys at oral argument before us indicated this one page document was produced by the Assistant Prosecutor and given to the trial court in support of the alleged cap of twenty-five extraditions from the Dominican Republic per year. This document was not properly authenticated at the trial level and cannot be independently authenticated on appeal. It is therefore not competent evidence of an international treaty or protocol on this issue between these two sovereign nations.
the Dominican Republic has no agreement with the United States to extradite, but nonetheless extradites about twenty-five defendants per year. It is within theThe trial court ultimately concluded that appellant cannot rely on the State's discretionary decision not to seek extradition as a basis for remission.
State's discretion to choose which defendants to extradite[,] being that only a certain amount per year may be brought back to the United States.
We agree with the trial court that appellant has not produced any legal grounds to support a claim for remission. The decision to remit and the amount of remission, if any, is left to the sound discretion of the trial court. State v. Ventura, 196 N.J. 203, 213 (2008). 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; R. 3:26-6(b).
Administrative Directive #13-04 sets out the Judiciary's Guidelines for bail forfeiture. These Guidelines contain the standards the trial court should use in determining whether remission is warranted:
Directive #13-04 is available to the public on the judiciary's website. New Jersey Courts, http://www.judiciary.state.nj.us/directive/criminal/dir_13_04.pdf (last visited July 1, 2014). Administrative directives have the force of law. R.K. v. D.L., 434 N.J. Super. 113, 130 n.7 (App. Div. 2014) (citing S.M. v. K.M., 433 N.J. Super. 552, 554, (App. Div. 2013)).
--------
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 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.
[(Internal citations omitted).]
Here, at the time appellant entered into the surety agreement with Felipe and Padilla Ortega, appellant was well aware that they both were citizens of a neighboring country, with family ties to their native land. Appellant assumed the risk that both men could place themselves outside the reach of traditional extradition efforts commonly associated with and applicable to extraditions between states. Unlike the circumstances in Ventura, supra, 196 N.J. at 208, where the defendant was deported to the Dominican Republic while incarcerated on an immigration detainer, defendants here voluntarily placed themselves outside the reach of local law enforcement authorities while on bail, and they intentionally decided to continue their fugitive status after having been allegedly located by appellant's agents.
As the Court made clear in Ventura, "the Guidelines presume that no remission is appropriate: 'Where the defendant remains a fugitive when the remission motion is made, the essential undertaking of the surety remains unsatisfied, and the denial of any remission is entirely appropriate.'" Id. at 215 (quoting State v. Harmon, 361 N.J. Super. 250, 255 (App. Div. 2003)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION