STATE OF NEW JERSEY VS. MICHAEL MUSTOÂ (13-06-1188, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3018-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL MUSTO and RAPID RELEASE BAIL
BONDS, INC.,
Defendants,
and
CRUM & FOSTER INDEMNITY CO.,
Defendant-Appellant.
____________________________________
Argued telephonically October 10, 2017 –
Decided October 25, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-06-1188.
Richard R. Capone argued the cause for
appellant.
Malcom V. Carton, Special County Counsel,
County of Monmouth, argued the cause for
respondent.
PER CURIAM
Defendant Crum and Foster Indemnity Co., Inc. (the Surety)
appeals from the January 29, 2016 order denying reconsideration
of a September 22, 2015 order vacating bail forfeiture conditioned
upon the payment of $2000 to the State of New Jersey. We affirm.
According to the Surety's notice of appeal, the order on
appeal is the January 29, 2016 order denying reconsideration. The
September 22, 2015 order setting aside the bail forfeiture and
reinstating bail was not appealed.1
This appeal emanates from a criminal case wherein Michael
Musto (Musto) was released on a bail bond in the amount of $40,000,
posted by Rapid Release Bail Bonds, Inc.2 and backed by the Surety.
When Musto failed to appear in court, bail was forfeited. Musto
subsequently appeared in court; however, the trial judge did not
reinstate bail.
The Surety then moved to set aside the bail forfeiture and
exonerate the Surety. The motion judge vacated the bail forfeiture
conditioned upon the payment of five percent of the bond, amounting
1
The Surety's appellate brief addresses the merits of the
September 22, 2015 order and offers no legal argument as to the
January 29, 2016 order denying reconsideration.
2
Rapid Release Bail Bonds, Inc. filed bankruptcy during the
pendency of this appeal.
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to $2000, to be paid to the State, and reinstated the balance of
the bond.
The Surety moved for reconsideration. On January 29, 2016,
the motion judge issued an order denying the Surety's
reconsideration motion. The motion judge repeated his earlier
ruling from September 22, 2015 that a party seeking to set aside
a forfeiture bears the burden of proving "it would be inequitable
to insist upon forfeiture and that forfeiture is not required in
the public interest." (quoting State v. Childs, 208 N.J. Super.
61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986)). The
motion judge found that the Surety failed to: (1) prove the court's
original decision was palpably incorrect or irrational; or (2)
identify any new issues of fact or law which the Surety believed
the court overlooked, as required to prevail on reconsideration.
On appeal, the Surety argues error as to the underlying
September 22, 2015 order, not the January 29, 2016 order. Our
Court Rules provide that "[i]n civil actions the notice of appeal
. . . shall designate the judgment, decision, action or rule, or
part thereof appealed from." R. 2:5-1(f)(3)(A). "[I]t is clear
that it is only the judgments or orders or parts thereof designated
in the notice of appeal which are subject to the appeal process
and review." Pressler & Verniero, Current N.J. Court Rules,
comment 6.1 on R. 2:5-1(a) (2018); see also Campagna ex rel. Greco
3 A-3018-15T1
v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.)
(declining to address plaintiffs' argument for reversing the trial
court's denial of their summary judgment motion, where plaintiffs
failed to identify that order in their notice of appeal), certif.
denied, 168 N.J. 294 (2001). "An appellant . . . proceeds at his
or her peril by insufficiently completing the notice of appeal or
CIS. The appellant should explicitly designate all judgments,
orders and issues on appeal in order to assure preservation of
their rights on appeal." Fusco v. Bd. of Educ. of Newark, 349
N.J. Super. 455, 461 n.1 (App. Div.) (deciding only the appeal of
the reconsideration order and not the underlying summary judgment
order, where appellant only identified the reconsideration order
in the notice of appeal), certif. denied, 174 N.J. 544 (2002).
Reconsideration is a matter within the sound discretion of
the trial court and we review for abuse of discretion. See Palombi
v. Palombi, 414 N.J. Super. 274, 288—89 (App. Div. 2010).
Reconsideration is not intended for a litigant who is merely
dissatisfied with a court's decision; the movant must prove the
judge's decision was arbitrary, capricious, palpably incorrect or
irrational, or that the judge "obvious[ly]" failed to consider or
appreciate probative evidence. D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990).
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The Surety argues that: (1) the trial judge failed to follow
applicable law when he declined to reinstate bail; (2) the motion
judge erred in reinstating the bail, less the forfeiture amount;
and (3) the motion judge abused his discretion by following the
remittitur guidelines such that a five percent forfeiture was
excessive.
The Surety's arguments on appeal mirror those presented to
the motion judge in its original motion and reconsideration motion
seeking to set aside the forfeiture. The Surety failed to identify
any specific case or fact which it believes was overlooked or
improperly determined by the motion judge. The Surety's appeal
is a third bite at the apple seeking to set aside the forfeiture
and the Surety failed to demonstrate the motion judge abused his
discretion in denying the motion for reconsideration.
Affirmed.
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