NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0974-14T1 A-0975-14T1 A-0976-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION CESAR MUNGIA, July 20, 2016 Defendant, APPELLATE DIVISION and
U.S. SPECIALTY INSURANCE COMPANY,
Surety-Appellant. __________________________________
v.
CHRISTIAN RODRIGUEZ,
Defendant,
and
AMERICAN RELIABLE INSURANCE COMPANY,
STATE OF NEW JERSEY, Plaintiff-Respondent,
ALEXIS MELENDEZ,
Argued April 5, 2016 – Decided July 20, 2016
Before Judges Hoffman, Leone and Whipple.1
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 11-10-1491 (A-0974-14), 11- 09-0101 (A-0975-14), and 10-07-0938 (A-0976- 14).
Richard P. Blender argued the cause for the appellants.
William J. Maslo argued the cause for respondents State of New Jersey and County of Middlesex (Florio Kenny Raval, L.L.P., attorneys; Edward J. Florio, of counsel; Michael T. Wilkos, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
1 Judge Whipple did not participate in oral argument. She joins the opinion with counsel's consent. R. 2:13-2(b).
2 A-0974-14T1 While released on bail, defendants Cesar Mungia, Christian
Rodriguez, and Alexis Melendez separately fled from the United
States. The State apparently did not seek extradition. The
sureties who posted their bail, appellants U.S. Specialty
Insurance Company (U.S. Specialty) and American Reliable
Insurance Company (American Reliable) (collectively the
sureties), appeal the trial court's orders forfeiting 70% of
each defendant's bail and remitting 30% to the sureties.
We hold that 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. Finding no abuse of discretion in
3 A-0974-14T1 the trial court's consideration of those factors in these cases,
we affirm.
I.
The following facts were asserted in the certifications
supporting the sureties' motions for remission.
A.
Mungia was released on bail on June 18, 2011. U.S.
Specialty posted bail in the amount of $40,000 to secure
Mungia's appearance in court on April 24, 2012. U.S.
Specialty's agent, Speedy Bail Bonds (Speedy), was tasked with
supervising Mungia. Speedy's agent in charge of supervising
Mungia was Jose Tavares. Tavares and his coworkers kept "in
close contact with" Mungia to "assure his presence in court."
Mungia had to report to Tavares' office by telephone on a
regular basis. Over several months, Mungia reported in thirty-
nine times.
On April 24, 2012, Mungia failed to appear in court.
Tavares and Speedy "immediately began an investigation." Speedy
called Mungia's home, family members, and friends in an attempt
to locate him. None of these efforts were successful.
Investigators monitored Mungia's last known home address but
were unable to locate him. Soon after Mungia failed to appear,
U.S. Specialty hired New Jersey State Private Detective and
4 A-0974-14T1 Fugitive Recovery Agent, Ron Padron, who authored a report on
his efforts to locate Mungia.
In October 2012, Padron received a call from an informant
indicating that Mungia was working on a farm in Virginia.
Padron traveled to the farm and learned that Mungia had been
working there under the name Hector Palo. After trying to
locate Mungia for several months in Virginia, Padron learned
that he had fled to Tela, Honduras. Padron reported this
information to the Middlesex County Prosecutor's Office. There
is no indication in the record that the State sought Mungia's
extradition.
B.
Rodriguez was released on bail on June 25, 2010. Speedy,
on behalf of American Reliable, posted bail in the amount of
$150,000. Again, Tavares and his coworkers were tasked with
supervising Rodriguez while he awaited trial, and "kept in close
contact" with Rodriguez. Between July 5, 2010, and March 26,
2012, Rodriguez reported to Tavares via telephone eighty-nine
times. In April 2012, Rodriguez stopped reporting. He failed
to appear for court on June 28, 2012. Tavares began an
investigation, but was ultimately unable to find Rodriguez. As
a result, he hired Padron on July 29, 2012.
5 A-0974-14T1 In September 2012, Padron received a phone call from a
blocked number. The caller informed Padron that Rodriguez was
in the "DR" and to look in "San Cristobal." Padron immediately
contacted an investigator in the Dominican Republic, who found
Rodriguez's Dominican Republic national identification number.
Padron learned that Rodriguez was working at a gas station in
Hatillo, San Cristobal Province. Padron's investigator traveled
to Hatillo and took pictures of Rodriguez at the gas station
where he works, and obtained Rodriguez's home address.
Padron and Tavares forwarded this information to the New
Jersey Department of Law and Public Safety, the law enforcement
agency tasked with prosecuting Rodriguez. There is no
indication in the record that the State sought Rodriguez's
C.
Melendez was released on bail on June 8, 2010. Speedy, on
behalf of American Reliable, posted bail in the amount of
$50,000. Again, Tavares was charged with supervising Melendez
and ensuring his appearance in court. Tavares and his coworkers
"kept in close contact" with Melendez. Between June 14, 2010,
and February 6, 2012, Melendez reported to Tavares' office via
telephone eighty-four times. However, Melendez failed to appear
at his February 16, 2012 court date. Tavares and his office
6 A-0974-14T1 immediately began an investigation in which they called
Melendez's family members, surveilled his last known address,
and spoke with neighbors and friends. After failing to locate
Melendez, Tavares hired Padron in September 2012. Following
leads, Padron's investigators traveled to Florida to search for
Melendez, without success.
In November 2012, Padron used a fake Facebook account to
befriend Melendez's girlfriend. Padron learned that Melendez
was communicating with her using a Facebook account under the
name "Omar Diaz." Padron then created another fake Facebook
account, used it to contact Melendez, and began having daily
conversations with him. Padron learned that Melendez was
currently living in Cali, Colombia, and he obtained an address.
Padron forwarded this information to the Middlesex County
Prosecutor's Office. There is no indication in the record that
the State sought Melendez's extradition.
D.
In each of the three cases, defendants' bails were
forfeited. The sureties moved to vacate the bail forfeitures
based on the State's failure to obtain extradition of the three
defendants. Judge Diane Pincus heard all three motions together
on August 21, 2014. She found that the "State would receive a
windfall in these cases if remission was denied, since whether
7 A-0974-14T1 or not the Defendants remain fugitives is directly tied to the
State's decision of whether or not to extradite."
In orders dated August 26, 2014, and September 9, 2014, the
judge denied the sureties' motions to vacate forfeiture but
modified the forfeiture to award the sureties 30% remission.
The judge ordered the sureties to pay the remaining 70%, to be
distributed proportionally to respondents, the State and the
County of Middlesex. On September 22, 2014, the judge stayed
payment of the 70% pending appeal.
The sureties appeal the trial court's decisions not to
award more than 30% remission, arguing:
POINT I — A SURETY IS ENTITLED TO RELIEF FROM A BAIL FORFEITURE WHEN THE STATE REFUSES TO EXTRADITE THE DEFENDANT.
POINT II — A SURETY IS ENTITLED TO RELIEF FROM A BAIL FORFEITURE WHEN ITS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE STATE'S REFUSAL TO EXTRADITE THE DEFENDANT.
POINT III — A SURETY IS ENTITLED TO SUBSTANTIAL REMISSION WHEN IT FULFILLS ITS OBLIGATIONS ON THE BOND.
II.
The "decision to remit [forfeited bail] and the amount of
remission lies essentially in the discretion of the trial
court." State v. Ventura, 196 N.J. 203, 213 (2008) (citing
State v. Peace, 63 N.J. 127, 129 (1973)). We analyze such
8 A-0974-14T1 decisions for an "abuse of discretion." Id. at 206. We must
hew to this standard of review.
III.
"[A] bail bond 'constitutes a surety agreement in which the
defendant is the principal and the creditor is the State.'"
State v. Ceylan, 352 N.J. Super. 139, 143 (App. Div.) (citation
omitted), certif. denied, 174 N.J. 545 (2002). "The primary
purpose of the surety agreement is to ensure that the defendant
will appear at all required court appearances until a final
disposition of charges against him is reached." Ibid.
"[U]pon the breach of a condition of bail, the court on its
own motion shall declare a forfeiture, and absent an objection
by the surety seeking to set the forfeiture aside, a judgment of
forfeiture shall be entered within 75 days after the declaration
of forfeiture." State v. de la Hoya, 359 N.J. Super. 194, 198
(App. Div. 2003) (citing R. 3:26-6(a)). "The 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 upon such
conditions as it imposes." R. 3:26-6(b). "[W]hen forfeiture is
not set aside and satisfied," and a judgment of forfeiture is
entered, "the court may remit it in whole or in part in the
interest of justice." R. 3:26-6(c). A surety "seeking to set
9 A-0974-14T1 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.'" State v.
Mercado, 329 N.J. Super. 265, 269-70 (App. Div. 2000) (citation
omitted).
To assist trial courts with bail remission motions, the New
Jersey Administrative Office of the Courts issued Directive #13-
042 in 2004, updated in pertinent part in 2008 in the Supplement
to Directive #13-04 [hereinafter Supplement].3 The Supplement's
Remission Schedule 1, entitled "No Remission," provides: "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." Supplement, supra, at 6 (citing State v. Harmon,
361 N.J. Super. 250, 255 (App. Div. 2003)). This reflects the
general "presumption against remission" where the defendant has
not been returned. Ventura, supra, 196 N.J. at 220. "In most
cases, remission of bail will not be appropriate unless the
2 Directive #13-04, Revision to Forms and Procedures Governing Bail and Bail Forfeitures (Nov. 17, 2004), http://www.judiciary.state.nj.us/directive/criminal/dir_13_04.pd f. 3 Supplement to Directive #13-04, Bail – Further Revised Remittitur Guidelines (Nov. 12, 2008), http://www.judiciary.state.nj.us/directive/2008/dir_13- 04_Supplement_11_12_08.pdf.
10 A-0974-14T1 defendant has been returned to the jurisdiction of the court."
Id. at 218.
However, there may be an exception when the government's
action prevents the recapture of the fugitive. That exception
has been explored in the area of deportation. In State v. Poon,
244 N.J. Super. 86, 101 (App. Div. 1990), the defendant, while
complying with his bail conditions, attended an immigration
hearing, as a result of which the federal government deported
him to Hong Kong. In that context, we felt it was
"inappropriate to adopt a per se rule prohibiting any
remission." Id. at 101. Instead, we ruled that trial courts
should consider the "efforts of the defendant and the surety to
return defendant to this jurisdiction," and "the State's
position regarding the need for defendant's return to the forum
for prosecution," as "the equities might be different if the
State elects . . . not to extradite or return a defendant for
prosecution . . . when it can do so." Id. at 101-02.
Subsequently, in Ventura, supra, our Supreme Court
addressed whether and how much bail remission was appropriate
when a defendant has been deported from the United States. 196
N.J. at 206. In Ventura, after being released on bail, two
defendants failed to appear at their scheduled court dates. Id.
at 206. One defendant was eventually incarcerated in Canada and
11 A-0974-14T1 then deported to the Dominican Republic. Id. at 207-08.
Meanwhile, the other defendant was eventually incarcerated in
another state and then deported to Colombia. Id. at 209-10.
After deportation, the sureties sought remission of the
defendants' bail. Id. at 208-09, 210-11.
Our Supreme Court noted that the "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.
The Court recognized that in Poon, we "rejected an automatic
rule against remission solely because the defendant had not been
returned." Ventura, supra, 196 N.J. at 216-18. The Court
agreed there could be circumstances in which the "impossibility
of securing the defendant's presence may play a role in
assessing a surety's motion for remission and in the appropriate
case, relief may be granted." Id. at 216 (citing Taylor v.
Taintor, 83 U.S. (16 Wall.) 366, 369, 21 L. Ed. 287, 290 (1873)
("It is the settled law of this class of cases that the bail
will be exonerated where the performance of the condition is
rendered impossible by the act of God, the act of the obligee,
or the act of law.")).
Our Supreme Court in Ventura held that "when deportation is
the sole reason a defendant is unable to attend court, a crucial
factor that the trial court should consider is whether the
12 A-0974-14T1 defendant was a fugitive from New Jersey at the time of
deportation." Id. at 218. The Court held that if the defendant
is compliant with bail conditions when deported, as in Poon,
"some degree of remission should be considered." Ibid.
However, the Court held that if "the defendant was a fugitive
when captured and then subsequently deported," then "remission
generally should be denied." Ibid.4 Thus, the Court ruled that,
because the defendants had been fugitives when captured and
deported, each was "essentially a fugitive when the motion was
made, [and] the denial of remission was appropriate." Id. at
219. The Court added that "[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." Id. at 221.
Poon and Ventura addressed deportation, where the
government causes the removal of the defendant from the United
States. Nonetheless, Ventura and Poon suggest precepts courts
can apply in deciding whether remission is appropriate when
defendants flee abroad. First, such defendants were fugitives
when they fled abroad, so there is a presumption against
4 Ventura's holdings were incorporated in the Supplement, supra, at 4.
13 A-0974-14T1 remission. See Ventura, supra, 196 N.J. at 216, 219-20.
Second, the surety must make every effort to assist in the re-
apprehension of the defendants, including by locating them in
the foreign country to which they have fled. See id. at 221.
Third, the failure to extradite a located defendant does
not excuse the sureties from their bail contract with the State,
and normally would not justify remission if the State has no
ability to obtain extradition of the defendant. Thus, remission
is generally inappropriate if there is no extradition treaty
with the foreign country, if the State requests and the federal
government seeks extradition but the foreign country declines to
extradite, or if the State makes a good faith request for
extradition but the federal government declines to seek
extradition. See Poon, supra, 244 N.J. Super. at 101. "It
cannot be doubted that the power to provide for extradition is a
national power; it pertains to the national government and not
to the States." Valentine v. United States, 299 U.S. 5, 8, 57
S. Ct. 100, 102, 81 L. Ed. 5, 8 (1936). While a surety is as
powerless as the State to secure extradition in those
circumstances, it is a surety's responsibility to prevent a
defendant's flight, including flight to the foreign country.
Fourth, if the surety locates the defendant in a foreign
country, and extradition is possible, but the State elects not
14 A-0974-14T1 to request that the federal government seek extradition, there
is no absolute bar against remission, as the State's election
may change the equities. See Poon, supra, 244 N.J. Super. at
101; see also Ventura, supra, 196 N.J. at 216. The trial court
should consider the factors governing remission, including the
efforts of the surety to prevent flight to a foreign country, to
locate the defendant in the foreign country, and to aid
extradition; and the State's reasons for not seeking
Courts should consider these factors in light of "the
necessity of providing an incentive to the surety to take active
and reasonable steps to recapture a fugitive defendant. . . .
[I]f remission were unreasonably withheld, corporate sureties
might be overcautious in their willingness to post bail,
resulting in an impairment of an accused's constitutional right
to pretrial bail." Ventura, supra, 196 N.J. at 214 (quoting de
la Hoya, supra, 359 N.J. Super. at 199); see also Supplement,
supra, at 1.
Here, the trial court recognized those concerns. It
correctly determined that, under Ventura and Poon, there was no
absolute bar against remission. The court then considered the
general factors governing remission.
15 A-0974-14T1 "[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." Ventura, supra, 196 N.J. at 206. The
Supplement incorporates the factors outlined in Hyers and "the
relevant caselaw." Ventura, supra, 196 N.J. at 215. The
Supplement instructs courts, in determining whether to remit
bail and the amount to be remitted, to weigh the following
factors:
1. Whether the surety has made reasonable effort under the circumstances to effect the recapture of the fugitive defendant. A reasonable effort under the circumstances means an "effective" effort. When there is nothing to be done because the defendant surrendered or was recaptured before the surety had notice, doing nothing is "reasonable."
2. Whether the applicant is a commercial bondsman.
3. The degree of 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 non-appearance, recapture and enforcement of the forfeiture.
6. Whether reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the
16 A-0974-14T1 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.
[Supplement, supra, at 2-3 (citing Peace, supra, 63 N.J. at 129; State v. Toscano, 389 N.J. Super. 366, 375 (App. Div. 2007); State v. Ruccatano, 388 N.J. Super. 620, 628 (App. Div. 2006); State v. Ramirez, 378 N.J. Super. 355, 365-66 (App. Div. 2005); Harmon, supra, 361 N.J. Super. at 255; de la Hoya, supra, 359 N.J. Super. at 199-200; Mercado, supra, 329 N.J. Super. at 271; Hyers, supra, 122 N.J. Super. at 180).]
In arriving at its decision to remit 30% of the bail for
each defendant, the trial court weighed all of these relevant
factors. First, the court found that the sureties took
"substantial steps" and "all reasonable measures" to locate
defendants in foreign countries and report their locations to
the relevant law enforcement agencies. Second, the court found
both sureties were commercial bondsmen.
Third, the court found the sureties engaged in some level
of supervision over defendants by requiring defendants to check-
in via telephone. However, the court also found that the
sureties could have provided greater supervision, such as by
17 A-0974-14T1 requiring defendants "to be physically present in their
office[s] on a regular basis," which might have kept defendants
in the vicinity. On the other hand, the court found the
sureties immediately began looking for defendants when it became
clear they were no longer calling in on a regular basis.
Fourth, the trial court did not directly comment on the
length of time defendants have been fugitives, but the time
elapsed since each defendant's failure to appear in court was
approximately two years and counting. Fifth and sixth, the
trial court declined to weigh heavily the prejudice and expenses
incurred by the State and whether reimbursement of the State's
expenses would satisfy the interests of justice. This was
appropriate, because the State claimed as prejudice only the
intangible injury to the public interest whenever a defendant
fails to appear, and the State did not argue that it had
incurred expenses as a result of defendants' flight. Seventh,
the court found that defendants had not committed any additional
crimes while fugitives.
Eighth, the trial court considered the "[a]mount of the
posted bail." See Supplement, supra, at 2. The court noted the
dollar amount of each defendant's bail. The court then found
the sureties were entitled to remission of 30% of each
18 A-0974-14T1 defendant's bail, thus tying the amount remitted to the amount
of bail.
The sureties argue that the trial court did not fully
consider the amount of the posted bail. Under this factor,
courts must consider whether the amount forfeited appropriately
compensates the injury to the State, and whether the amount
remitted is "so unreasonably small as to discourage future
posting of bonds." Toscano, supra, 389 N.J. Super. at 375-76
(disapproving a 20% remission where the defendant was quickly
recaptured); de la Hoya, supra, 359 N.J. Super. at 199-200
(changing the remission from 50% to 80% in view of the surety's
"successful efforts in recapturing defendant").
Unlike those cases, defendants here have not been
recaptured. Thus, the State's injury is deserving of sizeable
recompense. Moreover, the trial court's remission of $12,000
regarding Mungia, $15,000 regarding Melendez, and $45,000
regarding Rodriguez compensated the sureties with substantial
sums. These sums reflected the sureties' differing efforts to
locate Mungia and Melendez (sending investigators to Virginia
and Florida respectively, and gathering information here about
their location abroad) and to locate Rodriguez (using an
investigator in the Dominican Republic to locate and photograph
him). Thus, although the trial court found the same percentage
19 A-0974-14T1 of remission for each case, we cannot say that the court failed
to consider adequately the amount of posted bail and the
underlying need to compensate both the State and the sureties.
The sureties contend that more substantial remission should
have been awarded because of the steps they took in locating
defendants in foreign countries and in forwarding this
information to the relevant law enforcement agencies. Here, the
trial court recognized that the sureties did "everything in
[their] power to locate the Defendant[s], including incurring
the expense of hiring a Fugitive Recovery Agent." At the same
time, the court recognized that the sureties arguably "did not
do everything in [their] power to keep these Defendants in the
United States," and "failed in [their] singular objective of
ensuring the Defendants' presence in court."
We do not hold that 30% would have been the only
appropriate remission percentage in these cases, or in any other
cases.5 Remission of bail must be "assessed in a fact-sensitive
manner" in each individual case. Ventura, supra, 196 N.J. at
206.
Nonetheless, the amount of remission was "in the discretion
of the trial court." Id. at 213. The trial court here
5 We note that the State did not cross-appeal challenging either the amount or percentage of remission in these cases.
20 A-0974-14T1 considered all of the factors and relevant case law. We agree
substantially with the trial court's discussion of these
factors. The court determined that fundamental fairness
dictated the sureties receive 30% remission. We cannot say that
the court abused its discretion.
IV.
The sureties argue that the State's refusal to commence
extradition proceedings impermissibly increased the sureties'
risk in posting defendants' bail. The sureties cite State v.
Weissenburger, 189 N.J. Super. 172, 176 (App. Div. 1983), which
states that it is "well settled that if the principal and
creditor modify their contract without the consent of a
compensated surety, the surety will be discharged if the
modification materially increases his risk."
In Weissenburger, the defendant and the State agreed that
the defendant would cooperate with the State's investigators to
assist them in obtaining evidence against suspected major
distributors of controlled dangerous substances. Id. at 174.
The prosecutor agreed to provide the defendant with protection,
relocation, and new identities, if necessary. Ibid. The
agreement also permitted the defendant to leave the State if
there was an "emergent threat to his . . . safety." Ibid. The
21 A-0974-14T1 defendant panicked after receiving threats and fled from New
Jersey. Id. at 175. We held that
[t]he dispositive and undisputed fact is that the prosecutor, by way of the agreement with defendant and without notice to the surety, materially altered the condition of the bond and hence the risk and obligation of the surety by authorizing defendant to flee the jurisdiction upon his own determination that an emergent threat against him had been made.
[Id. at 176.]
The sureties also cite Ceylan, where the defendant was
released on bail on an eluding charge. Ceylan, supra, 352 N.J.
Super. at 141. Later, the defendant was charged with first-
degree aggravated manslaughter and released on bail. Ibid. The
defendant was first found guilty on the eluding charge. Ibid.
Prior to sentencing on the eluding charge, the surety sought
exoneration on the bond issued by it on the manslaughter charge,
arguing that the guilty verdict on the second-degree eluding
charge carried a presumptive term of imprisonment of five-to-ten
years, raising the risk of the defendant's fleeing to his native
Turkey. Id. at 142. The trial court denied the surety's
motions and allowed the defendant to remain free on a higher
amount of bail. Ibid. Subsequently, the defendant failed to
appear, fled to Turkey, and the bail was forfeited. Ibid. We
held that the "post-verdict release of the defendant led to a
22 A-0974-14T1 material increase in his risk of flight" and the surety "legally
could not be compelled to accept that increased risk, even when
ameliorated by the imposition of substantial new bail." Ibid.
Both Weissenburger and Ceylan involved situations where
actions by the State or the state court increased the risk of
flight before the defendants fled. Here, by contrast, neither
the State nor the trial court did anything to increase the
existing risk of flight before defendants fled. The sureties
assumed that risk, and their supervision failed to prevent
defendants from fleeing to foreign countries. The State's post-
flight decision not to request extradition could not increase
the risk of flight.
Even if the possibility of recapture must also be
considered, the result is the same. Had the State decided to
request extradition, extradition was by no means certain. The
federal government could have declined to seek extradition, or
the foreign country could have refused to grant extradition, or
defendants could have escaped recapture.6 Considering those
uncertainties, and the uncertainty at the time bail is posted of
6 Cf. State v. Wilson, 395 N.J. Super. 221, 228 (App. Div. 2007) (noting that, where the defendant is incarcerated in the United States, "the surety may be able to demonstrate that the eventual presence of defendants in New Jersey is virtually assured as the result of the operation of the" Interstate Agreement on Detainers).
23 A-0974-14T1 whether a defendant will flee abroad, the State's decision did
not alter the combined possibilities of flight and recapture so
materially as to excuse the sureties from their own failure to
prevent defendants from fleeing abroad.
Finally, the sureties contend that their performance under
the bond agreement was rendered impossible by the State's
failure to seek extradition of defendants. "'Impossibility or
impracticability of performance are complete defenses where a
fact essential to performance is assumed by the parties but does
not exist at the time for performance.'" Petrozzi v. City of
Ocean City, 433 N.J. Super. 290, 302 (2013) (citation omitted),
certif. denied, 217 N.J. 623 (2014). "The inquiry, therefore,
is whether the condition 'is of such a character that it can
reasonably be implied to have been in the [mutual] contemplation
of the parties at the date when the contract was made.'" Id. at
303 (quoting Duff v. Trenton Beverage Co., 4 N.J. 595, 605
(1950)). Here, the sureties have not shown that, at the time
bail was posted, both parties assumed that the State always
would request extradition if the sureties allowed defendants to
flee to a foreign country. See Connell v. Parlavecchio, 255
N.J. Super. 45, 50 (App. Div.), certif. denied, 130 N.J. 16-17
(1992) (impossibility is no defense where one party took the
24 A-0974-14T1 risk and "did not condition his performance on" the existence of
the fact).
Moreover, the State's decision not to request extradition
did not mean that it was impossible for the sureties to perform
their obligation. The sureties could have prevented defendants
from failing to appear in the first place by engaging in better
supervision. Even after that failure, the sureties could still
have belatedly performed by preventing the defendants from
fleeing outside of the United States.
Therefore, we reject the sureties' argument that the
State's refusal to request extradition rendered their
performance under the contract impossible. Rather, the
resulting "impossibility of securing the defendant's presence"
merely "may play a role in assessing a surety's motion for
remission." Ventura, supra, 196 N.J. at 216. The trial court
properly considered that factor in granting 30% remission.
Affirmed. The trial court's stay of the 70% forfeiture is
dissolved.
25 A-0974-14T1