SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Manuel A. Fajardo-Santos (A-82-08)
Argued April 28, 2009 -- Decided July 8, 2009
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court addresses the issue of a court's authority to modify bail after federal authorities lodge a detainer against an undocumented immigrant in a criminal case.
Defendant Manuel Fajardo-Santos, a thirty-year-old native of Honduras, was arrested and charged with first-degree aggravated sexual assault and third-degree endangering the welfare of a child. On the face of the complaint/warrant, bail was set at $75,000, "no 10%." The complaint also stated that there was reason to believe defendant was an "illegal immigrant." Defendant was committed to the Morris County Correctional Facility in lieu of bail on August 26, 2008. At a mandatory bail review hearing the next day, the Hon. John B. Dangler, J.S.C., reviewed and maintained defendant's bail, pursuant to Rule 3:26-2(c). Defendant remained in jail afterward.
Pursuant to a directive from the Attorney General, county officials notified U.S. Immigration and Customs Enforcement (ICE) about defendant's arrest and immigration status some time after his arrest. On December 9, 2008, defendant was indicted on first-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of a child. Defendant faces a possible sentence of up to twenty years on the first-degree charge, and up to ten years on the second-degree violations. The sexual assault charges are subject to the No Early Release Act, which would require defendant to serve eighty-five percent of his sentence before being eligible for parole.
On December 18, 2008, nearly four months after defendant's arrest, ICE lodged a detainer against him at the Morris County Correctional Facility. Defendant was arraigned and posted bail on the Morris County charges on January 7, 2009. He used a professional surety to post a $75,000 bond. Defendant was released from state custody on January 12, 2009, and, pursuant to the detainer, was turned over to ICE. ICE, in turn, placed him in federal custody pending removal proceedings. An ICE assistant field office director informed a captain at the Prosecutor's Office that defendant's removal from the United States seemed "likely."
On January 13, 2009, the State moved to increase defendant's bail, arguing that the detainer increased the risk of non-appearance. Judge Dangler agreed and, over defendant's objection, exonerated the original bail and set bail anew at $300,000, cash only. ICE then honored an order to produce, issued by the trial court, and returned defendant to state custody.
On January 20, 2009, defendant filed an emergent application for leave to appeal. The Appellate Division granted the application and ruled in defendant's favor one week later, concluding that the lodging of the detainer in this case was not a changed circumstance because the Prosecutor was aware of this possibility. The panel therefore summarily reversed and reinstated the initial $75,000 bail.
The Appellate Division's order was stayed, first by the Appellate Division and then by this Court. On February 24, 2009, the Supreme Court granted the State's motion for leave to appeal. The Court also granted amicus curiae status to the Attorney General of New Jersey and the County Prosecutor's Association.
Held: Federal authorities exercised their discretion in lodging a detainer against defendant. That increased the risk that he would not appear at trial. The trial judge then properly responded to a change in circumstances by increasing defendant's bail.
1. When New Jersey law enforcement officials arrest someone for an indictable offense and have reason to believe the person is an undocumented immigrant, they must notify ICE. ICE then determines on its own if the arrestee is subject to removal from the United States and may then issue a detainer. Ultimately, an immigration judge conducts proceedings and decides whether the alien is removable. If the immigration judge enters an order of removal, the Attorney General "shall remove" the alien promptly. Notwithstanding defendant's argument that 8 C.F.R.