STATE OF NEW JERSEY VS. $2,430.00 IN U.S. CURRENCY (DC-0820-16, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3750-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
$2,430.00 IN U.S. CURRENCY,
and $251.00 IN U.S. CURRENCY,
Defendants.
Submitted October 4, 2021 – Decided October 20, 2021
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. DC-0820-16.
Shawn Flemmings, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
In this civil forfeiture action, Shawn Flemmings appeals pro se from: (1)
an October 24, 2019 judgment confirming forfeiture by default, thereby
extinguishing his right to $2,430 and $240 in United States currency and vesting
title to the property with Passaic County; and (2) a January 7, 2020 order,
denying reconsideration of the judgment. 1 We reverse and remand.
We summarize the relevant facts and procedural history from the limited
record before the trial court. On January 25, 2016, the State of New Jersey filed
a verified complaint in the Law Division, Special Civil Part, seeking forfeiture
of $2,430 and $2512 in United States currency. The complaint alleged that on
October 26, 2015, Flemmings was arrested in Passaic County for indictable drug
offenses, having been "in actual or constructive possession" of certain narcotics
1
We granted claimant's motion to file an amended notice of appeal as within
time but limited the appeal to the January 7, 2020 order denying reconsideration.
Nonetheless, claimant's ensuing merits brief addresses the October 24, 2019
forfeiture judgment. Although we could dismiss the appeal for failure to comply
with our order, we address the propriety of the judgment here, where the State
has not moved to dismiss the appeal and opposes Flemmings' challenge to the
underlying judgment. Accord W.H. Indus., Inc. v. Fundicao Balancins, Ltda,
397 N.J. Super. 455, 459 (App. Div. 2008) (addressing the merits of an order
dismissing the plaintiff's complaint, where the plaintiff only specified the order
denying reconsideration in its notice of appeal and because the "defendant ha[d]
not argued against our ruling on its validity").
2
The record reveals no explanation as to why the $251 figure referenced in the
State's complaint was reduced to $240 in the 2019 default judgment.
A-3750-19
2
and currency seized at the time of his arrest. Flemmings was the sole potential
claimant named in the complaint.
On the same date, the Special Civil Part mailed the summons and
complaint to the Passaic County Jail (PCJ), where Flemmings was incarcerated.
See R. 6:2-3(d)(1). On February 1, 2016, the United States Postal Service issued
proof that service was made at the PCJ by certified mail on January 30, 2016.
Because Flemmings failed to file an answer or otherwise respond to the
State's complaint, default was automatically entered by the Special Civil Part on
March 7, 2016. According to the State, Flemmings "submitted"3 a "Complaint
Certification" and answer, both dated March 2, 2016, but failed to "file" the
answer and certification with the court. Notably, Flemmings certified he "read
the Verified Complaint in this matter," and had "personal knowledge of the facts
in the Verified Forfeiture Complaint and they are not true." His answer asserted
he was not indicted for any crimes and the allegations were "fabricated" because
"$251 was on [Flemmings] at the time of the arrest and $2,430 was confiscated
from an automobile search." Flemmings also claimed the confiscated currency
was owned by third-party claimant Ricmarie Sierra Figueroa.
3
It is unclear whether Flemmings "submitted" the unfiled answer and
certification to the court or only to the prosecutor's office.
A-3750-19
3
In its ensuing March 23, 2019 correspondence to Flemmings, the State
explained, "in the interest of due process and fairness," he was required "to
vacate the default and file his answer with the [c]ourt." Because Flemmings'
unfiled answer named a potential third-party claimant, the State further noted
that individual was required to file a motion to intervene in the action. The State
enclosed a consent to vacate the default if Flemmings filed an answer by April
7, 2016.
Flemmings failed to file a timely answer. On April 27, 2016, Figueroa's
answer was rejected by the court because she was a non-party. According to the
State's merits brief, the matter was "archived by the [c]ourt" 4 in January 2018.
In September 2019, because more than six months had elapsed after the
entry of default, see R. 6:6-3(d), the State moved to reinstate the matter and
enter default judgment against Flemmings, who cross-moved "to vacate the
default and/or default judgment." In his October 7, 2019 proposed answer,
Flemmings claimed "to date," he "was never served with [the] summons and
complaint regarding the instant action." Flemmings further averred: "Th e
money seized in this case was not in [his] possession at the time of arrest." And
4
The State has not provided the Special Civil Part's notice of dismissal or order
"archiving" the matter. See generally R. 1:13-7 (authorizing dismissal of a
complaint for lack of prosecution).
A-3750-19
4
in his certification in support of the motion, Flemmings stated he "was informed
by the State that [the] currency would not be subject to return until the
completion of [his] criminal matter."
On October 24, 2019, the trial court granted the State's motion for
forfeiture pursuant to N.J.S.A. 2C:64-6 "as a result of the claimant failing to
answer in accordance with N.J.S.A. 2C:64-3(e)." In doing so, the court
apparently denied Flemmings' cross-motion.5
Flemmings moved for reconsideration of the October 24, 2019 judgment.
He maintained he "never received any complaint or summons regarding this
action," and first received notice about the matter in September 2019. The State
did not oppose the motion. On January 7, 2020, the court denied the application,
finding: "Flemmings did not point to any controlling evidence or case law which
the [c]ourt failed to appreciate when it issued its initial order granting default
judgment in the State's favor." This appeal followed.
On appeal, Flemmings primarily argues his due process rights were
violated by the State's failure to serve him with notice of the forfeiture action,
thereby requiring vacatur of the judgment. He also contends the court failed to
5
The parties did not provide a trial court order denying Flemmings' cross-
motion.
A-3750-19
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consider his reasons for not timely answering the complaint. Asserting the
judgment was not accompanied by any findings of fact or conclusions of law,
contrary to Rule 1:7-4, Flemmings alternatively seeks a remand. For the first
time on appeal, Flemmings also seeks a remand to stay the proceedings pending
the outcome of the underlying federal criminal charges.
We commence our review with well-settled principles. A trial court's
order on a motion for reconsideration will not be set aside unless shown to be a
mistaken exercise of discretion. See, e.g., Granata v. Broderick, 446 N.J. Super.
449, 468 (App. Div. 2016). Reconsideration should only be granted in those
cases in which the court based its decision "upon a palpably incorrect or
irrational basis," or did not "consider, or failed to appreciate the significance of
probative, competent evidence." Palombi v. Palombi, 414 N.J. Super. 274, 288
(App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)); see also Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).
Similarly, our standard of review of a trial court's determination on a motion to
vacate a default or a default judgment also warrants substantial deference and
"should not be reversed unless it results in a clear abuse of discretion." U.S.
Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
A-3750-19
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Forfeiture proceedings are in rem proceedings "brought not against the
owner or possessor of the property but . . . against the property." State v. Seven
Thousand Dollars, 136 N.J. 223, 232-33 (1994). A complaint is filed against
the property because "[t]he theory of forfeiture is 'based on the misuse of the
property rather than resulting from the commission of an offense by its owner
or user.'" Id. at 233 (quoting State v. One 1986 Subaru, 230 N.J. Super. 451,
455 (App. Div. 1989), aff'd in part, rev'd in part, 120 N.J. 310 (1990)).
A forfeiture action may be instituted against two types of property: prima
facie contraband and derivative contraband. Ibid. Prima facie contraband
includes controlled dangerous substances, while derivative contraband, such as
the currency at issue here, "is itself innocent in nature but has been used or is
intended to be used in furtherance of an unlawful activity or is the proceeds of
illegal activities." Ibid. (citing N.J.S.A. 2C:64-1(a)(2)-(4)). Pursuant to
N.J.S.A. 2C:64-3(e), if no answer is filed in response to a forfeiture complaint,
"the property seized shall be disposed of pursuant to N.J.S.A. 2C:64-6."
As a preliminary matter, the record directly contradicts Flemmings'
assertion that he was not served with the summons and complaint. However, on
this record, we cannot conclude the trial court considered Flemmings' argument
A-3750-19
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that the moneys "would not be subject to return" while the federal criminal
matter was pending. See Palombi, 414 N.J. Super. at 288.
Our review is hampered by the court's failure to provide a thorough
statement of reasons on the State's motion for judgment by forfeiture and
Flemmings' motion for reconsideration. See R. 1:7-4 (requiring the trial court
to "find the facts and state its conclusions of law thereon . . . on every motion
decided by a written order that is appealable as of right"); see also Curtis v.
Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the
purpose of R[ule] 1:7-4."); Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div.
1996) ("The absence of adequate findings . . . necessitates a reversal[.]").
Moreover, the court failed to correlate factual findings with conclusions of law,
or otherwise explain its decisions. Further, its decisions are devoid of any
citation to, and analysis of the governing law.
Instead, the October 24, 2019 judgment reflects only one reason for its
entry: "the claimant(s)" failure to answer the State's complaint. Accordingly,
the judgment is silent as to whether the court considered Flemmings' attempt to
file his answer in March 2016. Nor did the court make any finding that the State
satisfied its burden of demonstrating the currency seized was "in furtherance
of," "to facilitate the perpetration of," or as "an integral part of" [an] i llegal act.
A-3750-19
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Seven Thousand Dollars, 136 N.J. at 234 (quoting N.J.S.A. 2C:64-1(a)). The
January 7, 2020 order denying reconsideration also fails to expound upon the
sole reason supporting the judgment confirming forfeiture.
Finally, the court did not rule on Flemmings' cross-motion to vacate
default and file an answer. Accordingly, we cannot determine whether the court
considered Flemmings' arguments on his cross-motion.
We therefore vacate the October 24, 2019 judgment and January 7, 2020
order and remand for the court to consider the arguments raised in Flemmings'
cross-motion, and to set forth its findings and conclusions on the parties' cross
applications.
Reversed and remanded. We do not retain jurisdiction.
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