Justice Patterson continued in relevant part: To defend against a forfeiture case, claimants who are also criminal defendants must file an answer that states their interest in the property. In other words, to assert their constitutional right not to be deprived of property without due process, they have to link themselves to alleged contraband and give up their constitutional right against self-incrimination. Alternatively, they can refuse to answer and lose their property.
This Court held in Melendez that “a defendant’s choice to file an answer under those circumstances is not freely made. It is fraught with coercion.” Id. at ___ (slip op. at 18). To avoid a conflict between a defendant’s privilege against self-incrimination and his or her right to assert an interest in property that is the subject of a civil forfeiture complaint, the Court concluded that a claimant’s answer filed in a civil forfeiture action pursuant to N.J.S.A. 2C:64-3(d) should not be admitted in his or her criminal trial. Id. at ___ (slip op. at 18-20).
We note a significant distinction between the civil forfeiture answer filed by the defendant in Melendez and the notice of motion for a writ of replevin and certification at issue here. When defendant served his notice of motion and certification, he was not required by N.J.S.A. 2C:64-3(d) or any other civil forfeiture statute to file a pleading in order to protect his rights to the disputed property. His attorney had already filed an answer setting forth a general denial and had secured a stay of the civil forfeiture action, thus obviating the need for defendant to file any pleading in that action while his criminal case was pending. Nonetheless, defendant sought to reopen the forfeiture action and demanded that the State return the disputed property. This appeal thus raises none of the Fifth Amendment concerns that we addressed in Melendez. See Melendez, ___ N.J. at ___ (slip op. at 17-20).
Moreover, defendant affirmatively used the notice of motion for a writ of replevin and certification in his own defense at trial. In his opening and summation, defense counsel relied on those statements, and he stated in summation that they constituted unrebutted evidence that defendant lawfully obtained the currency found on his person and in his home.
Accordingly, we conclude that the trial court’s admission of defendant’s notice of motion for a writ of replevin and certification did not constitute error.
The judgment of the Appellate Division is reversed, and defendant’s conviction is reinstated.
Here, the defendant attempted to use the shield provided by the Melendez protections as a sword. While he can still appeal his conviction to the United States Supreme Court, it seems unlikely that the federal Supreme Court would reverse the unanimous State Supreme Court under the circumstances.
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