NOT FOR PUBLICATION WITHOUT THE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.

CESAR MUNGIA,

Defendant,

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,

APPROVED FOR PUBLICATION

July 20, 2016

APPELLATE DIVISION
2 A-0974-14T1

Plaintiff-Respondent,

v.

ALEXIS MELENDEZ,

Defendant,

and 

AMERICAN RELIABLE INSURANCE

COMPANY,

Surety-Appellant.

__________________________________

Argued April 5, 2016 – Decided

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).

July 20, 2016
3 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 reapprehension 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 
4 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 thirtynine 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 
5 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. 
6 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 
7 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 
8 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 
9 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 
10 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. 
11 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 
12 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 
13 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.
14 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 reapprehension 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 
15 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. 
16 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 
17 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 checkin via telephone. However, the court also found that the 

sureties could have provided greater supervision, such as by 
18 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 
19 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 
20 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.
21 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 
22 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 firstdegree 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 
23 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 postflight 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).
24 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 
25 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.