State v. Garcia

178 Conn.App. 557

176 A.3d 575

STATE of Connecticut

v.Jay GARCIA

AC 39851

Appellate Court of Connecticut.

Argued September 15, 2017

Officially released December 12, 2017

James R. Hardy II, for the plaintiff in error (Afford–A–Bail, Inc.).

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the defendant in error (state).

Alvord, Sheldon and Keller, Js.

KELLER, J.

In this writ of error,¹ the plaintiff in error, Afford–A–Bail, Inc. (Afford), claims that the trial court improperly denied its motion to discharge its obligation on a surety bail bond.² Afford claims that the court, in denying its motion, improperly concluded that: (1) the standard for demonstrating "good cause" for discharge of an obligation upon a surety bail bond pursuant to Practice Book § 38–23³ is the standard first set forth in Taylor v. Taintor , 83 U.S. (16 Wall.) 366, 369–70, 21 L.Ed. 287 (1872), rather than a more holistic, equitable assessment; and (2) the failure of the defendant in error, the state of Connecticut, to extradite the criminal defendant, Jay Garcia, after representing that it would do so, was not relevant to the court's good cause determination. The state argues that the requirement of good cause for discharge of the obligation upon the surety bond pursuant to General Statutes § 54–65c and aspects of the common-law rule in Taylor as explicated in State v. Sheriff , 301 Conn. 617, 21 A.3d 808 (2011), were not satisfied. We conclude that the trial court properly denied Afford's motion to discharge its obligation on the surety bond and, therefore, we dismiss the writ of error.

The following allegations of fact by Afford and procedural history are necessary for our resolution of this writ of error.⁴ In the underlying criminal case, the criminal defendant, who identified himself to police as Garcia, was arrested and charged with robbery in the first degree in violation of General Statutes § 53a–134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 52a–134, larceny in the sixth degree in violation of General Statutes § 53a–125b, and conspiracy to commit larceny in the sixth degree in violation of §§ 53a–48 and 53a–125b. These crimes were alleged to have been committed on or about December 20, 2014. Garcia was arraigned in court on December 22, 2014. Bond was set at $75,000 and the case was continued to February 3, 2015. Garcia subsequently executed a $75,000 bond with surety for his appearance at future court dates. Afford is the surety on the bond. On February 3, 2015, Garcia failed to appear and the court ordered Afford's bond forfeited and imposed a six month statutory stay pursuant to General Statutes § 54–65a.⁵

On April 29, 2015, Afford filed a motion to vacate bond forfeiture. In its motion, it asserted the following: "Upon being arrested by the local authorities, [Garcia] was processed. However, the true identity of [Garcia] was never verified or his passport seized, due to the fact that he is an illegal immigrant. [Garcia's] legal name is Jonatan Lovis Mattos....

"Subsequent to the offense date in which [Garcia] was criminally charged (December 20, 2014), [Afford] became bo[u]nd by a bail bond, as surety, in the amount of $75,000 for the appearance of [Garcia]....

"Following the issuance of the bond, [Garcia] was ordered by this court to appear on February 3, 2015. [Garcia] failed to appear for his scheduled court hearing and a rearrest [order] was issued....

"It was discovered that on February 22, 2015, [Garcia] fled the jurisdiction of the United States from Bradley International Airport in Windsor Locks ... and absconded to Lima, Peru.⁶ ...

"Officer Nestor Silva Angeles, of the National Police of Peru—Division of Criminal Investigations, has confirmed the location of [Garcia].⁷ ...

"The country of Peru will not detain the defendant unless the state ... extradites him.⁸ ...

"It is presumed that the Office of the State's Attorney [in] New Britain will decline to seek extradition of [Garcia] given his location in another country....

"The bond was written by an agent of [Afford], who was not authorized to write bonds for subjects who are classified as undocumented, and as a result, [this agent's employment] was terminated from [Afford's] company." (Footnotes added.)

On July 21, 2015, the court denied Afford's motion and declined to vacate the forfeiture ordered on the bond. On August 3, 2015, Afford filed a motion for extension of satisfaction of the bond forfeiture, which was denied on August 4, 2015.

On September 4, 2015, Afford filed a motion for reconsideration of its motion for extension of satisfaction of the bond forfeiture and a motion to compel the extradition of Garcia. In the latter motion, Afford alleged that the denial of its motion to vacate the bond forfeiture on July 24, 2015, was exclusively based on the fact that the state had represented that it would extradite Garcia and had initiated the extradition process. On September 4, 2015, the court granted Afford's motion for reconsideration of its motion for extension of satisfaction of the bond forfeiture and extended the stay of the forfeiture of the bond.

On October 6, 2015, the court heard argument on Afford's motion to compel extradition. Afford also again moved, by way of an oral motion, to have its obligation on the bond discharged pursuant to Practice Book § 38–23.⁹

Counsel for Afford provided two arguments in support of its motion to discharge. First, Afford's counsel alleged that the state made a representation in court three months earlier that it would extradite Garcia back to the United States and that it should be compelled to take the necessary steps to extradite Garcia and provide written documentation of such efforts within thirty days. In the alternative, counsel requested that Afford's obligation on the bond be vacated due to the state's lack of action.¹⁰ In response to this argument, the state's attorney indicated: "It has been made clear that we certainly intend to extradite [Garcia].... I don't know what inquiries were made, but this is a fully extraditable offense. That the bondman should not be let off the bond for that reason because it's extraditable and because we intend to extradite once the Peruvian authorities notify us that [Garcia] is in custody." Counsel for Afford responded that the state's attorney had not taken any steps to put an extradition into place. The court indicated that the state had no obligation to seek extradition and denied the motion to compel extradition.

Second, counsel for Afford argued that its "rogue agents," for their own monetary gain, lied about Garcia's alienage to obtain authorization to write the bond. Rather than rule on Afford's oral motion to discharge its obligation on the bond at that time, the court continued the hearing and indicated that it would terminate the stay that had been imposed on the bond forfeiture 2 p.m. on December 14, 2015, if there was no further information from Afford by that time, and provided Afford with an opportunity to provide affidavits substantiating its allegations of fraud on the part of its rogue agents, to produce Garcia on that date or to prove that an extradition had been initiated by that date.

Subsequently, on December 8, 2015, Afford filed two affidavits signed by Shane Burby, the owner of Afford, and William Munck, its operations manager. According to both Munck and Burby, former employees named Daniel Ruiz and Jesus Agosto provided them with "false and omitting" information as to the status of Garcia's employment. The affidavits stated that their agents also falsely advised them that Garcia was a United States citizen and his father was a former police officer. This erroneous information led them to believe that Garcia was not a flight risk, resulting in approval of the bond without requiring collateral.

On December 14, 2015, the court, after a hearing, denied Afford's oral motion to discharge its obligation on the surety bond and again denied its motion to compel extradition.¹¹ On December 30, 2015, Afford filed this writ of error.

On February 6, 2016, the court issued a written memorandum of decision articulating its reasons for its denial of Afford's oral motion for discharge of its obligation on the bond and motion to compel extradition.¹² The court stated: "[Afford's] arguments and the facts upon which it relies do not entitle [Afford] to any relief from this court because they do not constitute good cause .... This court notes that [Afford] was not entitled to an order vacating bond forfeiture pursuant to ... § 54–65c because it did not provide proof of [Garcia's] incarceration in or removal to another country. No proof was provided because [Garcia] was not, in fact, incarcerated in Peru, or removed to Peru .... It was the wilful act of the accused which caused his departure from this country and his nonappearance for trial, not an act of God, an act of the obligee, or an act of law.

"The [representation by the] state's attorney's [office] ... that it will extradite [Garcia] is not relevant to the question at hand.... The [state] was not a party to the agreement between [Garcia] and [Afford], and did not promise, when the bond was executed, to extradite [Garcia] in the event that he flees.

"Likewise, the actions of [Afford's] agents in executing the bond are not relevant to the determination of whether good cause has been established .... These actions may have violated [Afford's] procedures, but they are not an act of God, an act of the obligee, or an act of law that prevented [Afford] from fulfilling the requirements of the bond."

I

Afford first claims that the trial court improperly concluded that the standard for demonstrating "good cause" for discharge of an obligation upon a bond pursuant to Practice Book § 38–23 is the standard first set forth in Taylor v. Taintor , supra, 83 U.S. at 369–70,...