STATE OF NEW JERSEY v. MIGUEL TINEO PAULINO FIRST INDEMNITY OF AMERICA INSURANCE COMPANY

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. MIGUEL TINEO–PAULINO, Defendant, FIRST INDEMNITY OF AMERICA INSURANCE COMPANY, Surety- Appellant,

DOCKET NO. A–2547–12T1

Decided: April 2, 2014

Before Judges Alvarez, Ostrer and Carroll.

First Indemnity of America Insurance Company (the surety), appeals from a November 14, 2012 Law Division order reinstating an earlier forfeiture of the $100,000 bond posted to secure the release on bail of defendant Miguel Tineo–Paulino.   For the reasons that follow, we affirm.

We set forth the facts and circumstances we have been able to glean from the limited record on appeal.   The record does not include either the date defendant was indicted, or the nature of the charges.

The surety posted the $100,000 bail through its bail bond company, Blaze Bail Bonds, Inc., on December 7, 2008.   No contacts with, or supervision of, defendant took place between that date and defendant's failure to appear at a status conference seven months later, on July 7, 2009.   Bail was then forfeited, and a bench warrant issued.

On October 9, 2009, a default judgment was entered against the surety.   At some unknown point thereafter, the surety filed a motion to vacate the bail forfeiture, for exoneration, and discharge of the bond.   Contrary to Rule 2:6–1(b), the copies of the motion papers included in the appendix bear no filing date.   The attorney who prepared the notice of motion, however, signed it on September 3, 2009.   The supporting affidavit of Ron Pedron, a licensed investigator and “bounty hunter,” states that his investigation notes are attached, including defendant's June 27, 2009 death certificate from the Dominican Republic.   The surety later provided an apostille 1 from the Dominican consulate confirming the authenticity of the death certificate.

On December 20, 2010, presumably as a result of a motion filed in August 2010 (again, the appendix includes a notice of motion and supporting documents signed and dated by another attorney on behalf of the surety, but do not indicate the filing date), the judge entered an order staying entry of judgment to December 22, 2010.   On December 22, 2010, the judge signed an order vacating the entry of judgment and exonerating the surety.   On the order, as noted on previous orders, the judge indicated he reached his decision “[f]or the reasons set forth on the record on this date.”   We do not have transcripts of this or any earlier proceedings.

The prosecutor's office subsequently advised county counsel that defendant was alive.   He had been arrested on March 30, 2011, in the Dominican Republic, due to his involvement in a drug smuggling scheme intercepted by the United States Drug Enforcement Administration (DEA).

County counsel provided certifications and reports from DEA agents regarding defendant's arrest.   Counsel and the court agreed, based on those submissions, that it was uncertain if defendant was then in the custody of the Dominican Republic, the United States authorities, or was otherwise available for extradition.   At one point after March 30, 2011, defendant was held in a Dominican prison.   It is not known if he remained there.

The judge's November 14, 2012 written decision notes that one of the DEA officers confirmed that defendant had been previously arrested on federal charges on January 25, 2008, and that those charges were declined for federal prosecution.   The record does not reveal whether the charges were lodged before or after defendant's relevant New Jersey offenses.

In rendering his November 14, 2012 decision, the judge briefly engaged in the analysis called for by the applicable administrative directives and relevant precedent.   See Administrative Directive No. 13–04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures 2 (Nov. 17, 2004), http:// www.judiciary.state.nj.us/directive/criminal/dir_13_04.pdf;  State v. Hyers, 122 N.J.Super. 177, 180 (App.Div.1973).   He concluded that the single most crucial factor identified in State v. Ventura, 196 N.J. 203, 206 (2008), defendant's status at the time the application to vacate forfeiture is made, was not satisfied.

In his decision, the judge also indicated that the federal government intended to extradite the defendant.   However, that statement is not corroborated by the documents in the appendix or the only transcript we have been supplied, which was for the June 27, 2012 proceedings.

Because defendant remained a fugitive unavailable to the court, the judge denied exoneration or remission.   The judge went on to conclude that neither should the State be granted attorney's fees, nor should the surety be held in contempt under these peculiar circumstances where despite the counterfeit death certificate, “there is no evidence of intentional misconduct by the surety or its bondsman․”  Accordingly, he vacated the earlier order vacating the forfeiture, without prejudice to the surety's right to seek remission upon defendant's future appearance.

This appeal follows.   The surety asserts the following points for our consideration:

POINT I

WHERE THE DEFENDANT IS INCARCERATED IN A FOREIGN COUNTRY AND COOPERATING WITH THE UNITED STATES DRUG ENFORCEMENT ADMINISTRATION THE TRIAL COURT ABUSED ITS DISCRETION IN CAT[E]GORIZING HIM AS A FUGITIVE FOR PURPOSES OF DENYING THE SURETY'S REQUEST FOR EXONERATION.

POINT II

THE TRIAL COURT ABUSE[D] ITS DISCRETION BY FINDING THAT THE EQUITIES FAVORED THE SURETY AND THEN REFUSING TO DISCHARGE THE BOND AND EXONERATE THE SURETY.

A. NATURE OF THE APPLICANT.

B. THE BONDSMAN'S EFFORTS TO ENSURE THE RETURN OF THE FUGITIVE.

C. PREJUDICE TO THE PROSECUTION OF THE CRIMINAL DEFENDANT.

D. ACTUAL EXPENSES INCURRED AS A RESULT OF THE DEFENDANT'S FAILURE TO APPEAR.

E. TIME BETWEEN FAILURE TO APPEAR AND ULTIMATE RETURN.

F. INTANGIBLE ELEMENT OF HARM TO THE COMMUNITY.

POINT III

A SUBSTANTIAL FORFEITURE WAS NOT REQUIRED UNDER THE RELEVANT CASE LAW.

We summarize the surety's position on appeal, that the motion judge abused his discretion because:  (1) defendant was actually cooperating with federal authorities, and was therefore not a fugitive;  (2) the equities tipped the balance in the surety's favor;  and (3) no substantial forfeiture was required.   We employ an abuse of discretion standard in reviewing the fact-sensitive decision whether to remit forfeited bail.  Ventura, supra, 196 N.J. at 206.

The surety bears the burden of proof, and must provide facts which favor remission.  State v. Toscano, 389 N.J.Super. 366, 376 (App.Div.2007).   In attempting to satisfy that burden, the surety relies upon the discussion in State v. Wilson, 395 N.J.Super.   221 (App.Div.2007), regarding the justification for refusing to allow exoneration where a defendant is in the custody of another state — the difficulties in returning defendant to the court, which to some degree were alleviated by the enactment virtually nationwide of the Interstate Agreement on Detainers (IAD) Act, N.J.S.A. 2A:159A–1 to –15.  Id. at 227–28.

The language in the Supreme Court's later 2008 Ventura decision, however, reiterated the notion that “[i]n most cases, remission of bail will not be appropriate unless the defendant has been returned to the jurisdiction of the court.”  Ventura, supra, 196 N.J. at 218.  Ventura affirmed the fundamental principle, after our decision in Wilson, that remission is inappropriate when a defendant is unavailable.

The Court summarized the surety's contentions that:  a “defendant's non-presence in the State” is just one of many factors, because “the primary rationale of bail forfeiture is to create an incentive for sureties to take reasonable steps to supervise and recapture fugitive defendants.”  Id. at 211.   The surety argued that when a defendant cannot be returned,

through no fault of the surety, the trial court should consider the efforts undertaken by the surety in locating the defendant ․ [and that] there is a fundamental difference between fugitives who are not present in the State because they are evading capture, and defendants who cannot be returned because they are in the custody of another criminal justice system.

[Ibid.]

Here the surety is essentially making the same argument rejected in Ventura, adding that the definition of “fugitive” should exclude persons who are in the custody of a foreign jurisdiction and cooperating with the DEA.

Initially, we note that the surety's characterization of defendant's status is not borne out by the record we have been provided.   After defendant's arrest, he was held in a Dominican jail but his present whereabouts are unknown.   It is possible, for example, that defendant has been released on bail.   Contrary to the surety's suggestion, the mere fact that defendant's prior federal charges were not prosecuted years prior to his smuggling arrest does not establish that he was cooperating with the DEA in the smuggling attempt as a result of which he was arrested.   That the prior charges were not prosecuted may have been the result of his cooperation or the cooperation of another, or of other circumstances such as lack of evidence.   The actual explanation is not found in the record and, in any event, is not relevant to the question on appeal.

The Court in Ventura observed that “the first starting point” is that no remission is appropriate where a defendant is a fugitive.  Id. at 215.   A second starting point occurs in the situation where a defendant is not a fugitive and no new crime has been committed.  Ibid. A third analysis is employed where a defendant commits a new crime while a fugitive, although not a fugitive at the time the issue is addressed.  Id. at 216.   In that instance, remission should be substantially lower because of “the public injury caused by the commission of a new crime.”  Ibid.

In Ventura, a case which consolidated two pending appeals by two defendants, Nazario Ventura was a fugitive who fled to Canada, was then taken into custody on immigration charges, incarcerated in a Canadian facility, and ultimately deported to the Dominican Republic.  Id. at 207–08.   When Bergen County first learned of Ventura's whereabouts, it lodged a detainer against him, but the detainer was ignored when he was deported.  Id. at 207.

The Court expressed approval of the trial judge's initial decision deferring the matter of remission until such time as Ventura returned to the United States.  Id. at 219.   After that initial decision, the surety then filed a second motion upon learning of Ventura's deportation from Canada to his country of origin, the Dominican Republic.  Id. at 208.

The trial judge denied remission on the surety's second application, made after deportation, and it was this decision that was actually appealed and was affirmed.  Ibid. In pertinent part, the Court said:  “the trial court did not abuse its discretion in denying [the surety]'s motion to remit the bail in part or in whole.   Pursuant to the Guidelines, because Ventura was essentially a fugitive when the motion was made, the denial of remission was appropriate.”  Id. at 219.

Furthermore, the Court noted the several unanswered questions in the record with regard to Ventura's status in the Dominican Republic.  Ibid. Like in this case, there were simply too many unknowns.  “Simply stated, the brief record before the court was not sufficient to satisfy [the surety]'s burden to establish that the interest of justice standard warranted remission of the forfeited funds.”  Ibid. Although the Court agreed there were some circumstances in which the fact a defendant remains a fugitive will not bar exoneration, those scenarios involve involuntary deportation, compliance with bail conditions, etc.  Id. at 218.   Those factors may present a different set of equities which tip the scales in the surety's favor, but that is not the case here.

Even if we assume what the surety asserts as fact that defendant is presently available to the United States authorities while in the Dominican Republic, it is undisputed that he was a fugitive at the time he was detained there.   And we know from Ventura that a surety is not entitled to remission where an absent defendant is a fugitive at the time he is involuntarily deported.  Id. at 221.   In other words, a defendant's status as a fugitive may cancel out the involuntariness of a removal from the jurisdiction, which latter factor weighs in favor of remission.

Moreover, this defendant, while a fugitive, left the country voluntarily and was involved in the commission of a new crime.   Whether he is available for extradition is unknown.   As in Ventura, too little information is available.

The trial judge rendered his decision without prejudice to any future application, an outcome approved in Ventura, and did so based on the most important factor found in the administrative guidelines and directives, and relevant precedent.   Thus we agree with his conclusion that the primary consideration mitigating against the surety is defendant's continued absence.   Although bail was forfeited, and remission and exoneration denied, it was without prejudice to a future application upon defendant's return to this country.

Affirmed.

FOOTNOTES

1.  FN1. An apostille is a form of authentication issued to documents for use in countries that participate in the 1961 Hague Convention.   Bureau of Consular Affairs—U.S. Department of State , http:// travel.state.gov/content/travel/english/legal-considerations/judicial/authentication-of-documents/apostille-requirements.html.

2.  FN2. See also Revised Bail Remittitur Guidelines, Supplement to Directive No. 13–04 (Oct. 9, 2007), http:// www.judiciary.state.nj.us/directive/2007/supp_dir_13_04. pdf;  Bail—(1) Revised Judiciary Corporate Surety Bail Forfeiture and Judgment Protocol;  (2) Judiciary Cash Bail Forfeiture and Judgment Protocol, Supplement to Directive No. 13–04 (Oct. 22, 2008), http://www.judiciary.state.nj.us/ directive/2008/dir_13–04_Supplement_10_22_08.pdf;  Bail—Further Revised Remittitur Guidelines, Supplement to Directive No. 13–04 (Nov. 12, 2008), http://www.judiciary.state.nj.us/directive/ 2008/dir_13–04_Supplement_11_ 12_08.pdf.

PER CURIAM

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