STATE OF NEW JERSEY VS. FRANCISCO CARDOSOÂ (CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4523-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCISCO CARDOSO, TROY
C. OGLESBY and CYBER BAIL
BONDS, LLC,
Defendants,
and
FIRST INDEMNITY OF AMERICA
INSURANCE COMPANY,
Surety-Appellant.
_____________________________
Argued October 16, 2017 – Decided November 2, 2017
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Samuel M. Silver argued the cause for
appellant.
Catherine Binowski, Assistant County Counsel,
argued the cause for respondent (Christopher
A. Orlando, Camden County Counsel, attorney;
Ms. Binowski, on the brief).
PER CURIAM
Appellant First Indemnity of America Insurance Co. is the
surety on a $50,000 bail bond that was forfeited when defendant
Francisco Cardoso failed to appear at a scheduled pre-arraignment
interview. First Indemnity appeals from an order denying its
motion to vacate the forfeiture and for its exoneration as the
surety, and directing remission of seventy-five percent of the
bail forfeiture. It claims it was entitled to exoneration or, in
the alternative, greater remission of the forfeiture. We disagree
and affirm.
Cardoso was arrested on weapons and hindering apprehension
charges, and held on $50,000 bail. First Indemnity was the surety
on the bail bond that was posted on August 18, 2014, for
defendant's release.1
Following the posting of the bond, defendant remained in
custody in the Camden County jail because he had a detainer lodged
by Immigration and Customs Enforcement (ICE).2 On August 27, 2014,
ICE took defendant into custody and removed him from the jail.
1
The bond was posted by defendant Cyber Bail Bonds.
2
In support of a motion First Indemnity later filed in this matter,
its licensed recovery agent certified that defendant was not
released from custody upon the posting of the bail bond because
"defendant had an Immigration and . . . Customs Enforcement (ICE)
hold."
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Four months later, in late December 2014, defendant was deported
to Mexico.
On July 17, 2015, defendant failed to appear for a scheduled
court event, a bench warrant was issued and the court ordered
forfeiture of defendant's bail. The court sent First Indemnity a
notice advising that the bail was forfeited and a default judgment
would be entered unless First Indemnity moved to set aside the
forfeiture within seventy-five days. First Indemnity took no
action and a $50,000 default judgment was entered on October 15,
2015.
Three and one-half months later, First Indemnity moved to
vacate the forfeiture and default judgment, exonerate the surety
and discharge the bond. The motion was supported by First
Indemnity's license recovery agent's certification stating he
first received the file on January 27, 2016, and confirmed there
was an active bench warrant for Cardoso. Within six days, the
agent determined Cardoso was taken into ICE custody in August 2015
and subsequently deported.
The court heard argument during two proceedings and, in an
oral decision, recognized Cardoso was not a fugitive when he was
taken into ICE custody. The court found First Indemnity failed
to monitor Cardoso following the posting of the bail bond and took
no action during the four months following Cardoso's removal from
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the Camden County jail and prior to his deportation to ensure his
availability for the court proceedings on the pending criminal
charges. The court noted First Indemnity's failure to make any
recapture efforts until January 2016, thirteen months after
Cardoso was deported and seventeen months after he was taken into
ICE custody.
The court acknowledged it would have been difficult for First
Indemnity to secure Cardoso's presence because he was in ICE
custody and subject to deportation. The court also found First
Indemnity failed to present any evidence showing it was impossible
to do so.
The judge found First Indemnity was entitled to remission,
and granted in part First Indemnity's motion, concluding that
"remission should be [seventy-five] percent, given the fact that
there was a bond posted . . . . [First Indemnity] will have to
pay [twenty-five] percent of $50,000, which is $12,500[.]" The
court entered an order vacating the default judgment, discharging
the bond, and directing payment of $12,500. This appeal followed.
First Indemnity contends it is entitled to exoneration
because Cardoso was never released from custody and was in ICE
custody until his deportation. It argues performance of its
obligations was therefore rendered impossible and, for that
reason, it is entitled to exoneration. It also argues it is
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entitled to exoneration under general principles governing
remission. Last, it argues that the forfeiture ordered by the
court is not supported by law or facts.
Rule 3:26-6 regulates bail forfeiture, the setting aside of
a forfeiture and remission.3 "[A] forfeiture may be vacated, 'in
whole or in part, if its enforcement is not required in the
interest of justice upon such conditions as [the court] imposes.'"
State v. Ventura, 196 N.J. 203, 213 (2008) (quoting R. 3:26-6(b));
see also State v. Peace, 63 N.J. 127, 129 (1973). Pursuant to
Rule 3:26-6(c), remission may be ordered in whole or in part in
the interest of justice "even after entry of judgment of default".
Peace, supra, 65 N.J. at 129; see also R. 3:26-6(c).
We review a bail remission decision under an abuse of
discretion standard. Ibid. "[T]he decision to remit and the amount
of remission lies essentially in the [equitable] discretion of the
trial court." Ventura, supra, 196 N.J. at 213 (2008) (quoting
Peace, supra, 63 N.J. at 129).
The exercise of that discretion must, however,
be informed by the standards articulated by
3
Rule 3:26-6 was amended effective September 1, 2017. The
amendments include changes to sections (b) and (c) which address
setting aside of orders of forfeiture and judgment, and remission
respectively. Because the court decided defendant's motion prior
to the effective date of the amended rule, we apply the prior
version. The parties do not argue otherwise. We offer no opinion
as to whether the amendments would otherwise affect the outcome
here.
5 A-4523-15T1
the courts in State v. Hyers, 122 N.J. Super.
177, 180 (App. Div. 1973), and again in State
v. Mercado, 329 N.J. Super. 265, 271 (App.
Div. 2000), and must, moreover, be consistent
with the policy concerns we identified in
[State v. de la Hoya, 359 N.J. Super. 194, 198
(App. Div. 2003)]. Paramount among them is
the necessity to provide a reasonable
incentive to the surety to attempt the
recapture of the non-appearing defendant and
to assure that the onus placed on commercial
sureties is not so great as to risk the
impairment of a defendant's realistic right
to post pretrial bail.
[State v. Harmon, 361 N.J. Super. 250, 254
(App. Div. 2003).]
"[T]he party seeking to set aside the judgment bears the
burden to prove that forfeiture is inequitable." Ventura, supra,
196 N.J. at 213; accord State v. Fields, 137 N.J. Super. 79, 81
(App. Div. 1975). In Ventura, the Court identified factors that
have been considered in determining if remission should be granted
or denied, including
(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 the appearance of defendant and his return
to court;
(e) the prejudice, if any, to the State
because of the absence of defendant;
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(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;
(g) whether reimbursement of the expenses
incurred in (f) will adequately satisfy the
interests of justice.
[Ibid. (quoting Hyers, supra, 122 N.J. Super.
at 180).]
The Court also explained that other factors have been
considered in assessing requests for remission. Id. at 213-14.
For example, a surety's lack of effort in locating the defendant,
the necessity of providing financial incentives to the surety to
recapture the defendant, and the surety's level of supervision of
the defendant prior to the failure to appear should be considered
in making a remission decision. Ibid. (citations omitted). The
Court further noted the factors and guidelines set forth in the
Administrative Office of the Courts' Remittitur Guidelines for
Superior Court and Municipal Courts must be considered in rendering
a remission decision.4 Id. at 215-16.
4
The guidelines were revised following the Ventura decision. See
Philip S. Carchman, P.J.A.D., Acting Administrative Director of
the Courts, Supplement to Directive #13-04 (Oct. 9, 2007),
http://infonet.courts.judiciary.state.nj.us/wps/wcm/connect/e2ef
968041d340b080fe9e2e02aee3df/supp_dir_13_04.pdf?MOD=AJPERES&CACH
EID=e2ef968041d340b080fe9e2e02aee3df.
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The Court recognized that "our general principles concerning
bail remission are not a perfect fit when a defendant is deported
from the United States while on bail." Id. at 216. Under the
Guidelines, a deported defendant would "come within the first
starting point that presumes remission is not appropriate because
the defendant essentially remains a fugitive." Ibid. The Court
however reasoned that any impossibility of securing a defendant's
presence that exists because of deportation should play a role in
determining a "surety's motion for remission and in the appropriate
case, relief may be granted." Ibid.
The Court found that a remission decision is "fact-driven and
involves consideration of a multitude of factors." Id. at 218.
The Court held that "[i]n most cases, remission of bail will not
be appropriate unless the defendant has been returned to the
jurisdiction of the court." Ibid. However, where deportation is
the sole reason a defendant cannot appear, "a crucial factor" that
must be considered is whether the defendant was a fugitive at the
time he or she was captured and then deported. Ibid. Where a
defendant was a fugitive who was captured and deported, "remission
generally should be denied." Ibid. However, where, as here, the
defendant was otherwise "compliant with the terms of his or her
release" and was then deported, "some degree of remission should
be considered." Ibid.
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Moreover, in State v. Poon, 244 N.J. Super. 86 (App. Div.
1990), we identified factors that should be considered in
determining remission where the defendant fails to appear because
of deportation:
(1) whether "the indictment was dismissed for
reasons not related to [the] defendant's non-
appearance";
(2) "the State's position regarding the need
for defendant's return to the forum for
prosecution" including, "if the State elects,
for example, not to extradite or return [the]
defendant for prosecution . . . when it can";
(3) any "prejudice" to the State by the
"defendant's non-appearance at the trial" of
any codefendant; and
(4) "[t]he efforts of the defendant and the
surety to return [the] defendant to this
jurisdiction."
[Id. at 101-02.]
In Ventura, the Court further explained a surety's obligation to
make efforts to obtain the return of a defendant who has been
deported: "[a] surety's essential responsibility is to guarantee
not only the defendant's appearance at the scheduled court
proceedings, but that if the defendant is deported to make every
effort to re-apprehend the defendant." Ventura, supra, 196 N.J.
at 221.
Applying these principles, we discern no basis to reverse the
court's discretionary decision ordering remission. The motion
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court expressly considered that Cardoso was not a fugitive when
he was taken into ICE custody and subsequently deported.
Consistent with the holding in Ventura, the motion court recognized
that "some degree of remission" was required and ordered a
substantial remission of seventy-five percent of the bail bond.
See ibid. We reject First Indemnity's contention that because
Cardoso was never released from the Camden County jail and was
compliant with the conditions of his release on bail that
exoneration was required because production of defendant was
impossible. Its position is inconsistent with the holding in
Ventura that only some level remission is required where a surety
fails to produce a defendant who was not a fugitive when taken
into custody and deported. Ibid.
Moreover, in Poon we found that "[t]he efforts of the
defendant and the surety to return defendant to this jurisdiction
are relevant in determining the equities" of a remission motion
where the defendant was deported. Poon, supra, 244 N.J. Super. at
102. We noted that in weighing the surety's efforts the court
must consider whether the surety took steps "to prevent deportation
until after [the] defendant's" court appearances or "to request a
delay of the immigration proceedings until after disposition of
the charges here." Ibid.
10 A-4523-15T1
Here, First Indemnity took no action concerning Cardoso's
deportation proceedings to ensure his appearance in court. Cardoso
was in ICE custody for four months prior to his deportation and
First Indemnity failed to act. We are unpersuaded by First
Indemnity's argument that it did not take any action because the
State failed to notify it that Cardoso was in ICE custody. It was
First Indemnity's failure to monitor defendant and not any failure
of the State that resulted in First Indemnity's ignorance of
defendant's status. The record shows there was an ICE detainer
against defendant at the time the bail bond was posted, and First
Indemnity never monitored Cardoso's whereabouts until it made its
motion to vacate the default judgment seventeen months after the
bond was posted.
The record also shows the court carefully considered the Poon
factors and First Indemnity's failure to make any effort to ensure
Cardoso's appearance. The court found one Poon factor in favor
of granting remission: the State did not seek to extradite Cardoso.
The court found the third Poon factor, prejudice to codefendants,
inapplicable. The court, however, found two factor's that weigh
against remission: the indictment was dismissed solely due to
Cardoso's nonappearance and First Indemnity failed to make any
effort to return Cardoso to the jurisdiction.
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The court also assessed the Hyers and Guideline factors.5
Hyers, supra, 122 N.J. Super. at 180. The court found the
following factors weighed against remission: First Indemnity was
a commercial surety, First Indemnity failed to supervise and
monitor Cardoso, First Indemnity took no steps to secure Cardoso's
return or appearance, and the State was prejudiced in its ability
to prosecute. The court also found other factors were either
inapplicable (e.g., the time that elapsed between the date ordered
for Cardoso's appearance and his return), or supported remission
(e.g., the absence of evidence showing expenses incurred by the
State).
In sum, we are satisfied the record supports the court's
findings and its careful application of the remission standards.
There has been no showing the court's decision rests on an
impermissible basis and First Indemnity fails to satisfy its burden
of showing the forfeiture is inequitable. See Ventura, supra, 196
N.J. at 213. We therefore conclude the court did not abuse its
discretion in ordering a seventy-five percent remission of the
bail bond. See United States v. Scurry, 193 N.J. 492, 504 (2008)
(finding there is an abuse of discretion where a "decision [is]
5
The court addressed the factors at the first of the two days of
oral argument on First Indemnity's motion.
12 A-4523-15T1
made without a rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis").
Affirmed.
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