NOT FOR PUBLICATION WITHOUT THE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-5076-14T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MIGUEL Y. TINEO-PAULINO,
Defendant,
and
FIRST INDEMNITY OF AMERICA
INSURANCE COMPANY,
Surety-Respondent,
and
BLAZE BAIL BONDS, INC.,
Bondsman.
Argued March 16, 2017 – Decided June 14, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 09-01-0178.
Malcolm V. Carton argued the cause for
appellant.
Samuel M. Silver argued the cause for
respondent.
PER CURIAM
On March 6, 2015, a Law Division judge ordered the return of
$75,000 of a $100,000 bond to Blaze Bail Bonds, Inc. (Blaze). The
bond was posted on behalf of defendant Miguel Tineo-Paulino. The
judge also "denied without prejudice" the State's motion for a
writ of execution on the previously entered default judgment on
the full amount of the bond. The State sought reconsideration,
which was denied on May 29, 2015. This appeal followed. We now
reverse and remand as to the judge's calculations under Remittitur
Guidelines Schedule 3, but affirm his ruling regarding counsel
fees and the application of the statute of limitation found in
N.J.S.A. 2A:162-8.
The matter has a convoluted procedural history. Blaze posted
the bond for defendant on December 7, 2008, securing his release.
Defendant has not returned to court since. As we stated in our
prior decision regarding this matter, "[n]o contacts with, or
supervision of, defendant took place between [December 7, 2008]
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." State v. Tineo-Paulino, No. A-2547-12
(App. Div. Apr. 2, 2014) (slip op. at 2).
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On October 9, 2009, a default judgment issued against the
surety for $100,000. Id. at 2. Thereafter, Blaze filed an
application to vacate the forfeiture, for exoneration, and
discharge, producing a death certificate from the Dominican
Republic along with an apostille certifying to the document's
veracity. Id. at 2-3. The judge vacated the prior judgment and
related orders. Id. at 3.
County counsel later learned that not only was defendant
alive, he had actually been arrested on new charges by the United
States Drug Enforcement Administration (DEA). Id. at 3-4. On
November 14, 2012, the judge again forfeited bail because Blaze
never produced defendant in court, defendant was charged with a
new offense, and was clearly still alive. Id. at 4-6. The judge
also ruled that Blaze was not entitled to any further relief until
such time as defendant was produced. Id. at 6. Blaze appealed,
and we affirmed on April 2, 2014. Id. at 2.
On April 14, 2014, the surety filed a second motion in the
trial court to vacate the judgment, exonerate bail, and discharge
the bail bond. The State sent the surety a Rule 1:4-8 letter on
May 7, 2014, requesting that the motion be withdrawn as frivolous
and putting Blaze on notice that it would seek counsel fees if the
application was not withdrawn. See R. 1:4-8. After its
3 A-5076-14T1
application was denied, the surety filed a second notice of appeal,
withdrawn three months later.
The State then filed an unsuccessful motion for counsel fees.
A week after that decision, the criminal charges pending against
defendant were dismissed on October 31, 2014. The dismissal was
entered by a different judge who was completely unaware of the
matter's prior history. County counsel's office, representing the
State only as to the bail litigation, was not informed of the
dismissal until after Blaze's counsel was advised in the ordinary
course of the discharge. The Monmouth County assistant prosecutor
who dismissed the indictment, and discharged the bail, explained
the dismissal as the result of defendant pending a federal sentence
in the Eastern District of New York. He said, "[f]urther
prosecution of these charges would serve no purpose."
The State's subsequent December 16, 2014 motion for a writ
of execution and counsel fees was based on the entry of the prior
order of default. The State also contended that the surety's
second application to vacate the judgment, in light of the prior
failure to appear and the outcome of the appeal, had no basis in
law or fact.
On March 6, 2015, the judge issued a written opinion denying
the State's motions for a writ of execution and counsel fees. The
basis for denial was that the State failed to notify the surety
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in the frivolous litigation letter that it had twenty-eight days
in which to withdraw its April 14, 2014 motion.
The judge wrote:
Here, once the State requested dismissal of
all charges against the defendant, his
presence in court was no longer required once
the judgment of dismissal was entered on
October 31, 2014. There was no reason to
continue defendant's bail after his charges
were dismissed. For this reason, the bail was
returned to the surety, yet the surety is not
entitled to complete exoneration and
remission. If the surety fails to pay the
amount of remission, at that point the State
would be entitled to execute on that amount.
The judge then analyzed the factors provided in State v.
Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973) regarding the
efforts Blaze undertook to recapture defendant.
The judge acknowledged that Blaze engaged in no supervision,
and that defendant was able to flee to the Dominican Republic
(factor three). After defendant's nonappearance, Blaze hired a
private investigator (factor one) who reached out to persons in
the Dominican Republic. Defendant was a fugitive for over five
years until he was taken into federal custody, at which point the
surety "lost any and all ability to produce defendant in this
[c]ourt" (factor four). The State incurred significant legal fees
but will suffer no prejudice because defendant's charges were
ultimately dismissed (factor five). Regarding whether
5 A-5076-14T1
reimbursement of the State's expenses would adequately satisfy the
interest of justice, the court opined that since defendant fled
and never appeared in this court, the "intangible element of injury
weighs heavily against allowing the surety complete remission and
exoneration" (factor six), and defendant committed other crimes
while he was a fugitive (factor seven). Factor two was undisputed
and of no effect in the calculation since the surety was a
commercial bondsman.
Having reviewed the factors, the judge applied Remission
Schedule 3 under the Remittitur Guidelines (the Guidelines). See
Administrative Directive No. 13-04, Revision to Forms and
Procedures Governing Bail and Bail Forfeitures1 (Nov. 17, 2014),
http://www.judiciary.state.nj.us/directive/criminal/dir_13_04.pdf.
He said:
In this case, the "special reason" is that the
surety spent a considerable effort to "prove"
that defendant was dead. In fact, the
defendant was alive and committing serious
crimes which resulted in a guilty plea in
federal court in the Eastern District of New
York. The surety should not, in equity, be
rewarded by such conduct. Nor has the surety
offered any evidence to explain how it
obtained and filed a false death certificate
and even worse, a false "apostille" which
purported to authenticate defendant's demise.
These documents induced this [c]ourt to grant
1
See also Revised Bail Remittitur Guidelines, Supplement to
Directive No. 13-04 (Oct. 9, 2007), http://www.judiciary.state.nj.
us/directive/criminal/supp_dir_13_04.pdf.
6 A-5076-14T1
full exoneration to the surety in December
2010. The surety was not entitled to that
relief as defendant was alive. Remission
schedule 3 suggests that between 0 and 10
percent should be remitted. Here, the
defendant was apprehended and in the custody
of the federal authorities, but had committed
other offenses while on bail. The State chose
not to lodge a detainer but instead requested
these charges be dismissed so the surety will
never be called upon to produce the defendant.
Thus, the surety must remit 25% or $25,000.00.
In support of its application for reconsideration, the State
contended that Remission Schedule 3 was inapplicable. Even if
applicable, the remission table pursuant to Schedule 3 allowed
only zero to ten percent to be paid to the bond company, because
it did not supervise, failed to engage in immediate efforts to
recapture, and the time defendant was at large was more than twelve
months.
Finding the State had not identified law or facts which the
court had overlooked or about which the court was mistaken pursuant
to Rule 4:49-2, the application was denied. The court for the
first time ruled on the State's new argument that the surety was
out of time to apply for the return of its bond under N.J.S.A.
2A:162-8 because:
under these circumstances there is a doctrine
of equitable tolling because remission of bail
is an equitable proceeding and first of all
the statute was not raised during the various
voluminous motions. But even if it were, the
7 A-5076-14T1
provisions of equitable tolling apply in
this case.
As to counsel fees, the judge reiterated that Rule 1:4-8(b)(1)
required that the moving party advise of the twenty-eight day time
period in which the motion can be withdrawn, and that the State
failed to do so. This appeal follows.
The State raises the following points for our consideration:
POINT I
REMISSION OF BAIL IS INAPPROPRIATE WHERE THE
FUNDAMENTAL CONDITION OF BAIL, PRODUCTION OF
THE DEFENDANT, WAS NEVER MET AND THERE IS
NOTHING IN THE RECORD TO INDICATE THAT THE
DEFENDANT WAS IN CUSTODY OR WAS IN CUSTODY
ANYWHERE OR AT ANY TIME AND A JUDGMENT OF
FORFEITURE HAS NEVER BEEN VACATED.
POINT II
EVEN UNDER BAIL REMISSION SCHEDULE 3, NOTHING
POINTS TO A REMISSION OF OVER 60% OF BAIL AND
CERTAINLY NOT THE 75% ORDERED BY THE COURT
BELOW.
POINT III
THE INTANGIBLE HARM TO THE COMMUNITY INFLICTED
BECAUSE OF THE DEFENDANT'S FAILURE TO APPEAR
FURTHER WARRANTS FORFEITURE OF THE BAIL AND
DENIAL OF REMISSION.
POINT IV
THE SURETY IS OUT OF TIME TO APPLY FOR A RETURN
ON MONIES AS APP[LIC]ATIONS FOR A RETURN OF
MONIES PAID SHALL BE MADE TO THE COURT
WITHIN[] FOUR YEARS AFTER THE RECOGNIZANCE
SHALL HAVE BEEN DECLARED FORFEITED, N.J.S.A.
2A:162-8.
POINT V
THE DECISION TO DENY COUNSEL FEES WAS BASED
ON A DE MINIMUS AND TECHNICAL VIOLATION AND
8 A-5076-14T1
IN LIGHT OF THE ONGOING EFFORTS OF THE STATE
TO COLLECT THE BAIL MONEY, IT SHOULD BE
AWARDED COUNSEL FEES.
I.
"The matter of remission lies essentially in judicial
discretion." State v. Peace, 63 N.J. 127, 129 (1973). We focus
our discussion on Bail Remission Schedule 3, the reason Blaze is
not out of time to seek remission, and the reason the State is not
entitled to counsel fees under Rule 1:4-8(b)(1).
II.
If a person admitted to bail fails to appear in court, "the
court on its own motion shall order forfeiture of the bail[.]" R.
3:26-6. However, "[t]he court may, either before or after the
entry of judgment, direct that an order of forfeiture or judgment
be set aside, in whole or in part, if its enforcement is not
required in the interest of justice . . . ." R. 3:26-6(b). Once
the forfeiture has been set aside or remission ordered, "the court
shall exonerate the obligors and release any bail." R. 3:26-7.
Bail was forfeited and a default judgment entered in favor
of the State once defendant failed to appear and Blaze failed to
produce him in 2009. Since that time, Blaze has not produced
defendant, and once he was in federal custody, Blaze could not
produce him.
9 A-5076-14T1
To further complicate the analysis, the indictment was
dismissed, and that judge, unaware of this history, in accord with
routine standard protocol, discharged the bail bond. Afterwards,
the State moved for a writ of execution on the default judgment
which predated the dismissal and discharge of the bail, arguing
that it remained unaffected. The court disagreed, ordering a more
substantial remission than permitted under Schedule 3.
"[A] motion for remission of forfeited bail is assessed in a
fact-sensitive manner, weighing a multitude of factors outlined
in State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973), and
its progeny." State v. Ventura, 196 N.J. 203, 206 (2008). The
Hyers factors include the following:
(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; (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.
[Ventura, supra, 196 N.J. at 213 (quoting
Hyers, supra, 122 N.J. Super. at 180).]
10 A-5076-14T1
Other factors have been considered such as whether the surety's
efforts helped secure the defendant, State v. Mercado, 329 N.J.
Super. 265, 271 (App. Div. 2000), the surety's steps in recapturing
the defendant, and the amount of the bail, State v. de la Hoya,
359 N.J. Super. 194, 199 (App. Div. 1999). Ventura, supra, 196
N.J. at 213-14.
However, the court's primary focus, especially
when the defendant has remained a fugitive for
a significant period of time, should be upon
the surety's efforts to secure the defendant's
return, rather than upon the expenses incurred
by the State as a result of the defendant's
failure to appear or the prejudice to the
State's case caused by the defendant's
absence.
[Mercado, supra, 329 N.J. Super. at 271.]
Moreover, "[a] party seeking to set aside or remit a forfeiture
bears the burden of proving that 'it would be inequitable to insist
upon forfeiture and that forfeiture is not required in the public
interest.'" Id. at 269-70 (quoting State v. Childs, 208 N.J.
Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)).
"A crucial factor in every bail remission case is whether the
defendant remains a fugitive." Ventura, supra, 196 N.J. at 206.
In this case, Blaze did not supervise defendant whatsoever,
he was able to flee to a foreign country, and while there committed
a new offense. It would therefore seem that the "minimal
remission," not the "substantial remission" tables applied because
11 A-5076-14T1
"the surety provided minimal or no supervision . . . and failed
to engage in immediate substantial efforts to recapture the
defendant." Even if Blaze was duped by persons unknown into
believing defendant had died while in the Dominican Republic, and
Blaze was not implicated in the deception, Blaze did not engage
in immediate substantial efforts to recapture defendant.
Careful balancing is necessary to offset the harm to the
public resulting from defendant's failure to appear against the
State's unexplained decision to merely dismiss the charges.
Regardless of these equitable considerations, it appears on this
record that only minimal remission is appropriate. It is difficult
to equate "immediate substantial efforts to recapture the
defendant" with efforts to prove he was dead. Therefore, even the
"Partial Remission" portion of Schedule 3 does not seem to us
applicable. Certainly the "Substantial Remission" section is not
applicable since Blaze did not supervise defendant once he was
released on bail and he was able to flee the country.
Factor six requires assessment of whether reimbursement of
the State's expenses will adequately satisfy the interests of
justice. State v. Harmon, 361 N.J. Super. 250, 255 (App. Div.
2003). However, "[t]he detriment to the State also includes . . .
an unquantified 'intangible element of injury to the public
interest in almost any case where a defendant deliberatively fails
12 A-5076-14T1
to make an appearance in a criminal case.'" Id. at 255 (quoting
Peace, supra, 63 N.J. at 129). After considering defendant's
flight from this jurisdiction, the judge properly found that
"[t]his intangible element of injury weighs heavily against
allowing the surety complete remission and exoneration." The
judge weighed factor seven against the surety in similar fashion,
as defendant had additional charges brought against him while he
was a fugitive.
The "immediacy of the surety's efforts should ordinarily be
measured from the time the surety is informed of the
warrant/forfeiture, without reference to when it would or should
have learned of that fact if there had been proper supervision."
State v. Toscano, 389 N.J. Super. 366, 374 (App. Div. 2007)
(quoting State v. Ruccatano, 388 N.J. Super. 620, 626 (App. Div.
2006)). In order for the efforts to be "substantial," "the efforts
must be reasonable under the circumstances of the case and
'effective.'" Ibid. (quoting Ruccatano, supra, 388 N.J. Super.
at 627-29). The surety made limited efforts —— succeeding only
in producing a fictional death certificate.
We therefore reverse the trial court's calculation of the
appropriate remission as it exceeds the maximum under Schedule 3,
and does not adequately address the surety's complete failure to
supervise or engage in any efforts to return defendant to this
13 A-5076-14T1
jurisdiction. It is clear the judge's factual findings were
correct, and his assessment of each factor was also correct. But
his ultimate decision regarding remission calculated by the
schedule he applied appears to be a mistake of law, not a mistaken
exercise of discretion.
III.
We do not agree with the State that the surety is out of time
in seeking a return of the bail bond. The State contends that
since the original forfeiture took place on July 7, 2009, and the
default judgment entered on October 9, 2009, N.J.S.A. 2A:162-8
applies, and effectively bars the surety from relief. That statute
reads:
When any court which has ordered or shall
order the forfeiture of a recognizance, the
amount whereof has been or shall be paid into
the county treasury of any county in
accordance with law, shall thereafter, in its
discretion, order the return of the moneys so
paid upon the forfeited recognizance . . . .
[a]pplication for a return of moneys so paid
shall be made to the court within 4 years after
the recognizance shall have been declared
forfeited.
[N.J.S.A. 2A:162-8.]
"The time limitation [under N.J.S.A. 2A:162-8] is directed
to the forfeiture, not to any judgment which a court may
subsequently enter." State v. Singletary, 170 N.J. Super. 454,
460 (Law Div. 1979). The surety's July 2009 forfeiture was vacated
14 A-5076-14T1
on December 22, 2010. The forfeiture was then reinstated on
November 14, 2012. This order was stayed pending appeal, and
later affirmed on April 2, 2014. Tineo-Paulino, supra, slip op.
at 12. Thus, the surety was not out of time to receive a return
of its bond as it began to seek the return of the funds two years
after the 2012 forfeiture.
IV.
Finally, the State also contends the trial court erred in
denying the motion for counsel fees. While conceding it did not
include the twenty-eight-day time frame found in Rule 1:4-8(b)(1),
the State does not agree that omission is consequential.
The decision to award counsel fees pursuant to the frivolous
litigation statute rests within the sound discretion of the trial
court. See Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55,
83-84 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005). Under
the frivolous litigation statute:
A party who prevails in a civil action, either
as plaintiff or defendant, against any other
party may be awarded all reasonable litigation
costs and reasonable attorney fees, if the
judge finds at any time during the proceedings
or upon judgment that a complaint,
counterclaim, cross-claim or defense of the
nonprevailing person was frivolous.
[N.J.S.A. 2A:15-59.1(a)(1).]
15 A-5076-14T1
In order for a motion to be frivolous it must have been made in
"bad faith, solely for the purpose of harassment, delay or
malicious injury" or "without any reasonable basis in law or equity
and could not be supported by a good faith argument for an
extension, modification or reversal of existing law." N.J.S.A.
2A:15-59.1(b).
Rule 1:4-8(b)(1) provides:
An application for sanctions under this rule
shall be by motion made separately from other
applications and shall describe the specific
conduct alleged to have violated this rule.
No such motion shall be filed unless it
includes a certification that the applicant
served written notice and demand pursuant to
[Rule] 1:5-2 to the attorney or pro se party
who signed or filed the paper objected to. The
certification shall have annexed a copy of
that notice and demand, which shall (i) state
that the paper is believed to violate the
provisions of this rule, (ii) set forth the
basis for that belief with specificity, (iii)
include a demand that the paper be withdrawn,
and (iv) give notice, except as otherwise
provided herein, that an application for
sanctions will be made within a reasonable
time thereafter if the offending paper is not
withdrawn within 28 days of service of the
written demand.
"Rule 1:4-8(b)(1) requires a 'motion made separately from other
applications' and notice to the adversary of its right to take
action to withdraw the objectionable pleading within a twenty-
eight-day period. Strict compliance is a prerequisite to
16 A-5076-14T1
recovery." State v. Franklin Sav+. Account, 389 N.J. Super. 272,
281 (App. Div. 2006).
In light of the unusual circumstances and lengthy history of
the dispute, and the fact that the surety's motion was clearly not
made in bad faith or with the purpose to harass or delay, but in
a continuing years-long effort to recover a substantial sum, the
State is not entitled to counsel fees pursuant to the rule. The
surety had a colorable basis for seeking the return of funds. That
position was bolstered when the indictment was dismissed. Since
we conclude that the application was not made in bad faith,
although a different reason from the trial judge's for the denial
of the claim, we affirm. See State v. Jones, 445 N.J. Super. 555,
560 n.4 (App. Div. 2016) (citation omitted) ("[A] correct result
predicated upon an incorrect basis does not preclude an affirmance
of [a] ruling.").
Reversed and remanded for reconsideration of the remission
amount, otherwise affirmed.
17 A-5076-14T1