                     NOT FOR PUBLICATION WITHOUT THE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.
__________________________________

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

v.

CHRISTIAN RODRIGUEZ,

      Defendant,

and

AMERICAN RELIABLE INSURANCE
COMPANY,

     Surety-Appellant.
__________________________________

STATE OF NEW JERSEY,
      Plaintiff-Respondent,

v.

ALEXIS MELENDEZ,

      Defendant,

and

AMERICAN RELIABLE INSURANCE
COMPANY,

     Surety-Appellant.
__________________________________

          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

extradition.

                                        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

extradition.

    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.

                                        V.

      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.




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