STATE OF NEW JERSEY VS. CARLOS VICTORIANO (13-08-1200, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-6010-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS VICTORIANO,

Defendant,

and

U.S. SPECIALTY INS. CO.,

Defendant-Appellant.
___________________________

Argued May 30, 2019 – Decided July 8, 2019

Before Judges Koblitz and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-08-1200.

Richard P. Blender argued the cause for appellant.

Matthew Michael Nicodemo argued the cause for
respondent (Meyerson Fox Mancinelli & Conte, PA,
 attorneys; Douglas Mitchell Bern and Matthew Michael
Nicodemo, on the brief).

PER CURIAM

Defendant U.S. Specialty Ins. Co. (Surety) appeals from the August 17,

2018 order denying its motion to vacate bail forfeiture. We reverse and remand

for reconsideration of partial remission in light of the considerable efforts put

forth by the Surety to locate Carlos Victoriano in the Dominican Republic and

the State's decision not to seek extradition in spite of the extradition treaty

between the United States and the Dominican Republic. 1

In May 2013, Victoriano was released on $125,000 bail posted by the

Surety. The Surety was aware Victoriano's home country was the Dominican

Republic and that he was charged with attempted murder.

Almost one year later, on April 7, 2014, Victoriano failed to appear in

court, a bench warrant was issued and the bail forfeited. Victoriano was at the

Surety's office making a payment on his premium on the day he was supposed

to be in court.

1
Extradition Treaty with the Dominican Republic, Dom. Rep.-U.S., Jan. 12,
2015, 2015 U.S.T. 64.

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 Four days later, the Surety was contacted by the court to determine its

willingness to reinstate the bail, and the Surety immediately sent a letter to the

court indicating that it did not wish to reinstate the bail. Later that day, the court

held a hearing, with Victoriano present with his attorney, and reinstated bail

over the written objection of the Surety. The Surety did not receive notice of

the hearing. The court acknowledged the Surety's letter, but nonetheless

reinstated bail.

Victoriano then appeared in court on April 21, June 2, and June 30, 2014.

On December 18, 2014, Victoriano failed to appear for trial, and on December

22, 2014, the court issued a notice of bail forfeiture. Victoriano's trial took place

in his absence and he was found guilty of attempted murder.

The Surety hired a Florida company to investigate. The company found

where Victoriano was currently living and working in the Dominican Republic.

The Surety avers it spent $50,000 to locate and retrieve Victoriano and two other

defendants who absconded, including the expense of hiring a small airplane.

Officials from the Dominican Republic indicated they were ready to issue

an arrest warrant for Mr. Victoriano, but could not do so without the issuance of

an Unlawful Flight to Avoid Prosecution (UFAP) warrant, which was never

requested by the State.

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 The motion judge denied the Surety's motion for remission with a written

opinion, concluding:

[T]he Surety failed to adequately monitor and supervise
the defendant. The Surety was aware that the
defendant's home country was the Dominican Republic
and that he was being charged with attempted murder,
and assumed associated risks. The only supervisory
mechanism indicated were "Check-In Log" records,
maintained by the Surety, documenting [d]efendant's
numerous office visits to the Surety. As mentioned by
County Counsel, the Surety does not state why it was
unaware of the defendant's whereabouts during the
eight months between the April 7, 2014 conference and
the December 18, 2014 failure to appear. As such, it
cannot be said that the Surety carried out its
responsibilities to supervise and monitor the defendant.
Further, unlike the facts in [State v.] Mungia, 446 N.J.
Super. 318 (App. Div. 2016), the Surety is not entitled
to remission. The law presumes remission is not
available where a defendant is a fugitive. Moreover,
the State's failure to seek extradition is only one factor
to consider. This court finds that the Surety provided
minimal supervision of the defendant, and has failed to
meet the heavy burden to show that it has satisfied its
essential obligation under the recognizance to secure
the defendant's return to custody. Further, the
defendant is still a fugitive and remains in the
Dominican Republic, therefore remission is not
warranted.

Bail remission matters are "within the sound discretion of the trial court

to be exercised in the public interest." State v. Clayton, 361 N.J. Super. 388,

392 (App. Div. 2003). Public policy concerns to be considered include:

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 the surety's supervision of defendant while released on
bail, the surety's efforts to ensure the fugitive's return,
the length of time between the fugitive's non-
appearance and return, both the prejudice to the State
and the expenses incurred by it resulting from the
fugitive's non-appearance, recapture, and enforcement
of the forfeiture, and whether reimbursement of the
State's expenses will adequately satisfy the interests of
justice.

[State v. de la Hoya, 359 N.J. Super. 194, 198-99 (App.
Div. 2003).]

"Paramount" among such concerns, id. at 199, is "the need 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," Clayton, 361 N.J. Super. at 392-93. Moreover, where a non-appearing

defendant remains a fugitive, "the court's primary focus . . . should be upon the

surety's efforts to secure the defendant's return . . . ." State v. Mercado, 329 N.J.

Super. 265, 271-72 (App. Div. 2000). We review the motion court's exercise of

discretion under "the totality of the circumstances presented." State v. Korecky,

169 N.J. 364, 373 (2001).

A court may set aside a bail forfeiture either before or after the entry of

judgment. R. 3:26-6(b). "[T]he principles of suretyship apply to bail bonds."

Clayton, 361 N.J. Super. at 395. "It is a well-settled principle of suretyship that

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the surety is only chargeable according to the strict terms of its undertaking and

that, as a result, its obligation cannot be extended or altered beyond the terms of

its agreement." Ibid. In Clayton we held that a "unilateral alteration of the terms

of the undertaking by the principal . . . and the creditor . . . without the consent

of the surety . . . discharged the surety if the modification materially increased

the risk of the undertaking." Ibid.

The Surety argues the reinstatement of bail, over the objection of the

Surety, and without affording the Surety an opportunity to be heard, is a nullity.

We disagree.

In Clayton, after the defendant failed to appear in court, the surety turned

him over to authorities. Id. at 394. Without informing the surety, the court

reinstated bail and again released the defendant. Ibid. When the defendant

failed to appear in court again, the surety moved to vacate forfeiture, arguing

reinstatement of bail without its knowledge was improper. Ibid. The trial court

denied the surety's motion, and we reversed the decision on appeal, stating,

"Simply put, the court did not have the authority to effect a reinstatement of the

bail bond without the consent of the surety. Beyond that, the surety's initial

prompt return of [the defendant] and timely motion for relief entitled it to

exoneration." Id. at 395. Here, however, the defendant was at the Surety's office

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on the day he failed to appear in court, and turned himself in to the court four

days later with an explanation. The court reasonably determined that the

Surety's risk was not materially increased by defendant's inadvertent

nonappearance.

The Surety also argues it is entitled to relief from a complete forfeiture

because it located Victoriano in the Dominican Republic and could have

returned him to New Jersey, but for the failure to issue a UFAP.

[W]hen a criminal defendant, as the principal under the
bail bond, defaults on his obligation to appear in court
when lawfully required, the surety is obligated to
locate, apprehend and return the defendant to custody.
Therefore, if a surety seeks a partial or total remission
of a forfeiture of bail, it bears a heavy burden to show
that it has satisfied its essential obligation under the
recognizance to secure the defendant's return to
custody, and in the absence of this showing, the trial
court may determine that the forfeiture should stand
. . . . [T]he 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, 329 N.J. Super. 271 (emphasis added)
(citations omitted).]

"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

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remission is entirely appropriate." State v. Ventura, 196 N.J. 203, 215 (2008)

(quoting Administrative Directive #22-17, "Bail and Bail Forfeitures --

Revisions to Procedures and Forms" (Aug. 7, 2017)). The presumption against

remission was explained in State v. Mungia, 446 N.J. Super. 318, 323-24, 326

(App. Div. 2016) (emphasis added), where we affirmed a thirty percent

remission:

if a defendant becomes a fugitive and flees to a foreign
country, there is a presumption against remission. The
surety must make every effort to assist in the re-
apprehension of the defendant, including by locating
the defendant in the foreign country. The failure to
extradite a located defendant does not excuse the
sureties from their contract with the State, and
generally does not justify remission if the State has no
ability to obtain extradition of the defendant. However,
if the surety locates the defendant in a foreign country,
and extradition is possible, but the State elects not to
request that the federal government seek extradition,
there is no absolute bar against remission. In that
situation, the trial court should consider the general
factors governing remission.

In Mercado, where each defendant had been apprehended and returned to

court after failing to appear, their return was due to the action of law

enforcement rather than the surety. 329 N.J. Super. at 272-73. We found the

trial court did not abuse its discretion by ordering forfeiture of ninety percent of

the bond because the surety "failed to show that it made any active efforts to

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locate, apprehend and return the defendants to court." Id. at 272; see also State

v. Hyers, 126 N.J. Super. 259, 260 (App. Div. 1973) (finding partial remission

appropriate where the guarantors "made all reasonable efforts to locate

defendant which ultimately bore fruit, and the State suffered no prejudice");

State v. Childs, 208 N.J. Super. 61, 64 (App. Div. 1986) (affirming denial of

motion to vacate forfeiture of bail posted by defendant's mother because "there

was no indication that defendant's mother played any role whatsoever in

assisting the State in locating defendant").

Although the motion court's written opinion provides "[t]he law presumes

remission is not available where a defendant is a fugitive," the Surety overcame

that presumption by locating Victoriano in the Dominican Republic. See

Mungia, 446 N.J. Super. at 323-24. There was "no absolute bar against

remission" when the Surety located Victoriano in a foreign country and the

State's inaction led to a failure of extradition. See ibid. Although the directive

cited in Ventura, 196 N.J. at 215, notes denial of remission is "entirely

appropriate" where the defendant remains a fugitive, the directive does not

mandate a denial of all remission. See Administrative Directive #22-17, "Bail

and Bail Forfeitures – Revisions to Procedures and Forms" (Aug. 7, 2017).

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Because the Surety located Victoriano, the analysis should shift to the other

factors governing remission. See Mungia, 446 N.J. Super. at 323-24.

After listing the factors, the motion court found only that "the Surety

failed to adequately monitor and supervise the defendant" and "the State's failure

to seek extradition is only one factor to consider." The Surety monitored

Victoriano between May 2013 and September 2014, during which he regularly

checked in with the Surety's office. See State v. Harmon, 361 N.J. Super. 250,

256 (App. Div. 2003) (finding failure to adequately monitor where the surety

"totally disregarded" any monitoring policy). After the Surety received notice

of the December 22, 2014 bail forfeiture, the Surety immediately investigated

and learned Victoriano had fled to the Dominican Republic. The Surety

discovered Victoriano's whereabouts, and the Dominican Republic indicated it

would assist in his apprehension once the Surety obtained the UFAP, which the

State never requested. The Surety also spent a substantial amount of money to

hire a small airplane to retrieve him. The Surety therefore demonstrated

significant "efforts to secure the defendant's return." Mercado, 329 N.J. Super.

at 271. Although the Surety's efforts should have been "the court's primary

focus," ibid., the motion court's analysis did not include this factor. Some level

of remission is appropriate to encourage sureties to exert efforts to return

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defendants. See de la Hoya, 359 N.J. Super. at 199. Therefore, the motion court

misapplied its discretion by over-emphasizing one factor, the failure to

adequately monitor. See, e.g., id. at 198-99.

Reversed and remanded for reconsideration in light of the efforts made by

the Surety to return Victoriano to the jurisdiction. We do not retain jurisdiction.

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