SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6010-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

CARLOS VICTORIANO,

Defendant,

and

U.S. SPECIALTY INS. CO.,

Defendant-Appellant.

___________________________

Argued May 30, 2019 – Decided July 8, 2019

Before Judges Koblitz and Currier.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 13-08-1200.

Richard P. Blender argued the cause for appellant.

Matthew Michael Nicodemo argued the cause for 

respondent (Meyerson Fox Mancinelli & Conte, PA, 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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attorneys; Douglas Mitchell Bern and Matthew Michael 

Nicodemo, on the brief).

PER CURIAM

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

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

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

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

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

between the United States and the Dominican Republic.1 

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

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

Republic and that he was charged with attempted murder. 

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

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

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

to be in court.

 

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

2015, 2015 U.S.T. 64.
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Four days later, the Surety was contacted by the court to determine its 

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

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

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

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

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

reinstated bail. 

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

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

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

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

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

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

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

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

Officials from the Dominican Republic indicated they were ready to issue 

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

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

requested by the State.
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The motion judge denied the Surety's motion for remission with a written 

opinion, concluding: 

[T]he Surety failed to adequately monitor and supervise 

the defendant. The Surety was aware that the 

defendant's home country was the Dominican Republic 

and that he was being charged with attempted murder, 

and assumed associated risks. The only supervisory 

mechanism indicated were "Check-In Log" records, 

maintained by the Surety, documenting [d]efendant's 

numerous office visits to the Surety. As mentioned by 

County Counsel, the Surety does not state why it was 

unaware of the defendant's whereabouts during the 

eight months between the April 7, 2014 conference and 

the December 18, 2014 failure to appear. As such, it 

cannot be said that the Surety carried out its 

responsibilities to supervise and monitor the defendant. 

Further, unlike the facts in [State v.] Mungia, 446 N.J. 

Super. 318 (App. Div. 2016), the Surety is not entitled 

to remission. The law presumes remission is not 

available where a defendant is a fugitive. Moreover, 

the State's failure to seek extradition is only one factor 

to consider. This court finds that the Surety provided 

minimal supervision of the defendant, and has failed to 

meet the heavy burden to show that it has satisfied its 

essential obligation under the recognizance to secure 

the defendant's return to custody. Further, the 

defendant is still a fugitive and remains in the 

Dominican Republic, therefore remission is not 

warranted. 

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

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

392 (App. Div. 2003). Public policy concerns to be considered include:
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the surety's supervision of defendant while released on 

bail, the surety's efforts to ensure the fugitive's return, 

the length of time between the fugitive's nonappearance and return, both the prejudice to the State 

and the expenses incurred by it resulting from the 

fugitive's non-appearance, recapture, and enforcement 

of the forfeiture, and whether reimbursement of the 

State's expenses will adequately satisfy the interests of 

justice.

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

Div. 2003).]

"Paramount" among such concerns, id. at 199, is "the need to provide a 

reasonable incentive to the surety to attempt the recapture of the non-appearing 

defendant and to assure that the onus placed on commercial sureties is not so 

great as to risk the impairment of a defendant's realistic right to post pretrial 

bail," Clayton, 361 N.J. Super. at 392-93. Moreover, where a non-appearing 

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

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

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

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

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

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

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

Clayton, 361 N.J. Super. at 395. "It is a well-settled principle of suretyship that 
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the surety is only chargeable according to the strict terms of its undertaking and 

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

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

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

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

the risk of the undertaking." Ibid. 

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

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

We disagree.

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

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

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

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

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

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

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

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

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

exoneration." Id. at 395. Here, however, the defendant was at the Surety's office 
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on the day he failed to appear in court, and turned himself in to the court four 

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

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

nonappearance. 

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

because it located Victoriano in the Dominican Republic and could have 

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

[W]hen a criminal defendant, as the principal under the 

bail bond, defaults on his obligation to appear in court 

when lawfully required, the surety is obligated to 

locate, apprehend and return the defendant to custody. 

Therefore, if a surety seeks a partial or total remission 

of a forfeiture of bail, it bears a heavy burden to show 

that it has satisfied its essential obligation under the 

recognizance to secure the defendant's return to 

custody, and in the absence of this showing, the trial 

court may determine that the forfeiture should stand 

. . . . [T]he court's primary focus, especially when the 

defendant has remained a fugitive for a significant 

period of time, should be upon the surety's efforts to 

secure the defendant's return, rather than upon the 

expenses incurred by the State as a result of the 

defendant's failure to appear or the prejudice to the 

State's case caused by the defendant's absence. 

[Mercado, 329 N.J. Super. 271 (emphasis added) 

(citations omitted).]

"Where the defendant remains a fugitive when the remission motion is made, 

the essential undertaking of the surety remains unsatisfied, and the denial of any 
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remission is entirely appropriate." State v. Ventura, 196 N.J. 203, 215 (2008) 

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

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

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

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

remission:

if a defendant becomes a fugitive and flees to a foreign 

country, there is a presumption against remission. The 

surety must make every effort to assist in the 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.

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

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

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

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

the bond because the surety "failed to show that it made any active efforts to 
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locate, apprehend and return the defendants to court." Id. at 272; see also State 

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

appropriate where the guarantors "made all reasonable efforts to locate 

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

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

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

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

assisting the State in locating defendant").

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

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

that presumption by locating Victoriano in the Dominican Republic. See

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

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

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

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

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

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

and Bail Forfeitures – Revisions to Procedures and Forms" (Aug. 7, 2017). 
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Because the Surety located Victoriano, the analysis should shift to the other 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of remission is appropriate to encourage sureties to exert efforts to return 
11 A-6010-17T1

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

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

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

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

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