On January 22, 2020, the New Jersey Supreme Court decided the Somerset County case of State v. Roger Covil. The principle issue under N.J.S.A. 2C:64-1 was whether the prosecution could use the defendant’s motion and certification for return of the property that was the subject of a civil forfeiture proceeding.
Justice Patterson wrote for the Court and held in relevant part: We turn now to defendant’s argument that the trial court violated defendant’s state and federal constitutional rights and principles of fundamental fairness when it admitted into evidence defendant’s notice of motion for a writ of replevin and certification.
Defendant specifically asserts that the admission of those documents violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Paragraphs 1, 9, and 10 of the New Jersey Constitution. Defendant contends that because a provision of the civil forfeiture statute, N.J.S.A. 2C:64-3(d), requires a claimant to answer a civil forfeiture complaint before moving to stay the forfeiture action, he was compelled to waive his privilege against self-incrimination in order to assert his due process right to that property. In addition, defendant relies on the Appellate Division’s opinion in State v. Melendez, (App. Div. 2018), aff’d and modified, ___ N.J. at ___, in which that court found that the admission of the defendant’s answer in his criminal trial violated principles of fundamental fairness. Defendant contends that his notice of motion for a writ of replevin and certification are analogous to the answer that the defendant in Melendez filed in accordance with N.J.S.A. 2C:64-3(d).
In Melendez, this Court affirmed and modified the Appellate Division’s judgment. Melendez, ___ N.J. at ___ (slip op. at 22). We recognized that when a civil forfeiture action is filed during the pendency of a criminal prosecution of a potential claimant to that property, N.J.S.A. 2C:64-3(d) requires that the claimant file an answer before moving to stay the forfeiture action. Id. at ___ (slip. op. at 12-15). We held that, like the defendant police officers in Garrity — who were forced to choose between forfeiting their jobs and incriminating themselves in an investigation of police misconduct –claimants in a civil forfeiture action who are defendants in a parallel criminal case also face an untenable choice: to forfeit their property or incriminate themselves.
The prosecution will seek to distinguish the filing of an answer from the filing of a writ of replevin. The same principles of fundamental fairness are not at play in both situations since claimants are not required to file a writ of replevin to avoid a default judgment. Replevin actions can result in the court ordering that a third party take possession of the property at issue pending the result of the forfeiture case between the State and claimant.