STATE OF NEW JERSEY VS. BASSIL E. BASSIL(14-02-0244, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4602-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BASSIL E. BASSIL,
SENECA INSURANCE COMPANY, INC., Surety,
and DAVID TARUSSI, Agent,
Defendants,
and
FLASH BAIL BONDS, Agency,
Defendant-Appellant.
____________________________________
Submitted February 14, 2017 – Decided August 14, 2017
Before Judges Koblitz and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
14-02-0244.
Law Office of Jarred S. Freeman, LLC,
attorneys for appellant (Mr. Freeman, on the
brief).
Law Office of Christopher J. Kane, LLC,
attorney for respondent (Mr. Kane, of counsel
and on the brief).
PER CURIAM
Defendant Flash Bail Bonds (Flash Bail) appeals from the Law
Division's April 23, 2015 order denying its motion to stay
execution of judgment requiring forfeiture of bail posted for
Bassil E. Bassil. For the reasons expressed below, we affirm.
We glean the following relevant facts and procedural history
from the record on appeal. On August 10, 2013, Flash Bail
indemnified the $50,000 bail posted for Bassil for charges arising
in Bergen County. Three days after being released, Bassil was
arrested and incarcerated on new charges occurring in Middlesex
County. For those charges, Speedy Bail Bonds posted bail in the
amount of $150,000 for Bassil on August 19. Flash Bail was unaware
of Bassil's subsequent arrest and release on bail.
Following Bassil's failure to appear in court on March 20,
2014, a judgment of forfeiture of the bail secured by Flash Bail
was entered on June 25, 2014, with enforcement of the judgment
stayed until September 9, 2014, to allow Flash Bail the opportunity
to surrender Bassil.1 Although Bassil remained a fugitive, the
trial court granted Flash Bail's motion to stay enforcement until
November 7, 2014.
1
Bail posted by Speedy Bail Bonds was also forfeited, but it is
not a subject of this appeal.
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When Bassil could not be located, Flash Bail filed another
request on November 7, 2014, to stay enforcement of the forfeiture
judgment.2 According to Flash Bail, it had been trying to locate
Bassil since November 2013, after he failed to report to their
office, and their investigation led them to believe that he may
have fled the country.
For reasons that are unclear from the record, the trial court
did not conduct argument on the motion until April 23, 2015.
Considering Flash Bail's motion as a request to vacate the
forfeiture judgment, the court determined there was no basis to
do so, and entered an order that day denying the application.
Flash Bail filed a notice of appeal on June 3, 2015.
Before us, Flash Bail contends that we should "discharge its
liability with respect to [] Bassil's bail and return the $50,000
forfeited" because the State did not notify it of the new charges
and the bail posted by Speedy Bail Bonds days after Flash Bail had
posted bail. In support, Flash Bail cites State v. Ceylan, 352
N.J. Super. 139, 144 (App. Div.), cert. denied, 174 N.J. 545
(2002), for the principle that the new bail recognized the
increased risk of flight, which was a material change in its bail
agreement with Bassil. We are not persuaded.
2
Although there was no appeal at that point, Flash Bail also
sought to post a supersedeas bond in lieu of cash pending appeal.
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Initially, we point out that the oral decision supporting the
April 23, 2015 order lacked a clear statement of reasons as
required by Rule 1:7-4. That deficiency does not, however,
preclude our conclusion that the judgment of forfeiture should not
be vacated.
We next address the State's contention that Flash Bail's
appeal is untimely. We disagree with the State's argument that
Flash Bail is appealing the judgment of forfeiture entered on June
25, 2014. Flash Bail is appealing the April 23, 2015 order denying
its motion to vacate the judgment of forfeiture after two stays
of enforcement had been granted. Thus, Flash Bail's notice of
appeal filed on June 3, 2015, was timely. See R. 2:4-1(a).
Though Flash Bail does not expressly argue that it is entitled
to vacate the trial court's judgment under Rule 4:50-1, it does
so implicitly by maintaining that the trial court erred in not
discharging the judgment of forfeiture because the State failed
to notify it of the increased risk of flight due to the new bail
posted for Bassil. Rule 4:50-1(f) is a catch-all provision that
authorizes a court to relieve a party from a judgment or order for
"any other reason justifying relief from the operation of the
judgment or order."3 The essence of subsection (f) is to achieve
3
Rule 4:50-1(a)-(e) authorizes a court to relieve a party from a
final judgment or order for reasons such as: mistake or
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equity and justice in exceptional situations that cannot be easily
categorized. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70
(2009) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).
We review a court's determination of a Rule 4:50-1 motion
under an abuse of discretion standard. U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012). There is "an abuse of
discretion when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007)).
Considering that the matter before us involves the forfeiture
of bail, we are also mindful that the issue of remission of a
forfeiture is equitable in nature. State v. Hyers, 122 N.J. Super.
177, 180 (App. Div. 1973). Pursuant to Rule 3:26-6(b), the court
may set aside a forfeiture of bail "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) (emphasis added); see
State v. Peace, 63 N.J. 127, 129 (1973). Thus, we review the
motion judge's decision for abuse of discretion. State v. Ventura,
196 N.J. 203, 213 (2008).
inadvertence; certain newly discovered evidence; fraud; the
judgment or order is void; or the judgment or order has been
satisfied. These provisions do not address the argument raised
by Flash Bail.
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Applying these standards, there is no sound reason to justify
vacation of the judgment of forfeiture. Flash Bail cites no legal
authority requiring the State to notify a surety that a bond it
posted for a criminal defendant increased in risk because the
defendant was charged with a subsequent offense resulting in a new
higher bail that was posted by another surety.
Flash Bail's reliance on Ceylan is misplaced. There, we
concluded that the trial court abused its discretion when it
refused to permit the surety to surrender the defendant and obtain
exoneration on the recognizance bond once the defendant was
convicted at trial on an unrelated charge. Ceylan, supra, 352
N.J. Super. at 145. We concluded that because the risk of flight
by the defendant "had changed materially from that existing prior
to trial [on the unrelated charge]" the judge abused his discretion
by permitting the defendant to remain free on bail, and by denying
the surety's motion for exoneration. Id. at 144-45.
Here, the surety, Flash Bail, did not motion for exoneration
of the bond based upon the surrender of Bassil. Significantly,
it is clear from the record that the trial court gave Flash Bail
more than ample opportunity to surrender Bassil before executing
the judgment of forfeiture. When the judgment was entered on June
23, 2014, the court stayed execution until September 9, 2014, to
allow Flash Bail to produce Bassil. Because Bassil remained a
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fugitive, stay of enforcement was extended to November 7, 2014.
In fact, the stay was essentially extended for almost six months
until April 23, 2015, when the court eventually denied Flash Bail's
request to vacate the judgment of forfeiture, which had been filed
on November 7, 2014.
Furthermore, despite recognizing that a surety should be
afforded the opportunity to decide whether it is willing to accept
the increased risk after a defendant failed to appear for court
proceedings following the surety's issuance of the recognizance,
Ceylan did not impose an obligation on the State to notify a surety
of an increased risk of forfeiting a posted bond for a defendant
who is charged with or found guilty of subsequent offenses. See
id. at 143. Thus, we cannot conclude that the trial court abused
its discretion in refusing to either vacate the judgment of
forfeiture, or continue to stay execution of the judgment.
Affirmed.
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