2C:64-1. Property Subject to Forfeiture. a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1) prima facie contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of an unlawful activity, including, but not limited to, conveyances intended to facilitate the perpetration of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State.
(3) Property which has become or is intended to become an integral part of illegal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4) Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband
Forfeiture statutes are not favored and consequently are strictly construed.
To save the statute from constitutional attack that it constitutes an unlawful taking of property without just compensation, it has been construed to exclude innocent owners who neither consented to nor knew of the illegal use of their property and who did all that could reasonably be expected to prevent that use.
Having an attorney with forfeiture litigation experience is critical. Only with hands-on experience will your attorney know how much time and money the state is willing to spend in order to take permanent possession of your property. Only an experienced attorney will know how to present a defense that maximizes your potential recovery.
In some circumstances a forfeiture may constitute an excessive fine prohibited by the Constitution.
“Other than prima facie contraband”
This property is innocent in its essential character and is contraband only if it is (1) property that has been or is intended to be utilized in furtherance of an unlawful activity; (2) property that has been or is intended to become an integral part of an illegal activity; (3) property that constitutes the proceeds of illegal activities. The State may not seek the forfeiture of property found as the result of an illegal search. The State bears the burden of proving both that an illegal activity existed or was planned and that the property which is the subject of the forfeiture action is connected to that activity.
As to the first issue, notwithstanding the words of subsection (a) of 2C:64-1, the unlawful activity involved must be an indictable crime and not merely a disorderly persons offense. However, neither the statute nor the cases require that anyone be convicted of that crime; they do not require that anyone even be charged.
The existence or planning of the activity may be proved by a preponderance of the evidence as in other civil actions. Nonetheless, the State is limited to proving a connection between the property and the crime it specifies during discovery. Where the State seeks to prove the property is connected to a crime which has not yet occurred, a higher standard of proof may be required. The connection between the property and the activity must be a “direct causal relationship.” That relationship “connotes a sense of dependency, a merely casual relationship will not suffice. The State’s burden requires that it prove that the connection is proximate and substantial. Whether a causal relationship can be established is a fact-sensitive determination, but the Supreme Court’s approach seems to indicate that there must be evidence tying the property to a crime that has occurred or has been planned specifically. Mere possession of money that will probably be used in some drug transaction at some time in the future is insufficient. The fact that a motor vehicle may have been used in illegal activity does not necessarily create a right to forfeiture of the contents of the motor vehicle.
In meeting its burden of proof, the State is entitled to the presumption established by 2C:64-3j: that seized property serving as an integral part of the State’s proofs of a crime for which defendant was convicted was in fact used in furtherance of that crime. While crimes for which the defendant was not convicted may be used to support forfeiture, however, the presumption operates only with respect to a crime for which the defendant was convicted. Thus, if defendant was convicted of simple drug possession, and the State sought forfeiture of the defendant’s vehicle and currency found in the vehicle, the State would have to show that the money and the vehicle were used in the possession offense or served as an integral part of the proofs relating to that offense before the presumption could come into play.
When a sum of money is involved, after the State has proved the causal connection between the money and the crime, it is up to the defendant to come forward with evidence apportioning the money between illegal and legitimate purposes. The court must then make a finding as to what portion of the money is connected to illegal activity and declare forfeit only that portion. To be subject to forfeiture as “utilized in furtherance of unlawful activity” the property’s use must have a direct causal relationship to the unlawful activity. Applying that standard, an automobile used in the course of activity giving rise to the charge of death by auto (2C:11-5) is subject to forfeiture.
Proportionality principles apply. The forfeiture of an entire home would be excessive if only a small portion of the premises was devoted to the illegal activity.
Only the interests of culpable parties are subject to forfeiture. And forfeiture does not affect a perfected security interest in a car where the holder of the interest has no knowledge of criminal activity. The rights of innocent parties are protected whether they arise before or after the illegal activity. But if a party took a transfer of an interest in property after the illegal act, the interest will be forfeit if the state can show that the party did not make reasonable inquiry as to whether the property had been used illegally. It may also be that the interest of a party who took a gratuitous transfer after the illegal act is subject to forfeiture.
Forfeiture of other than prima facie contraband in certain circumstances can constitute an excessive fine in violation of the Eighth Amendment to the U.S. Constitution. Forfeiting the proceeds of crime is never an excessive fine, since the owner has no right to retain the fruits of criminal activity. However, where forfeiture of other property is claimed to be excessive, the claim must be examined, not in terms of the value of the property but in terms of the connection of the property to the commission of the crime.
Where property seized is not prima facie contraband, forfeiture must be enforced by a civil action instituted within 90 days of the seizure. The time period for filing the action and for filing of the summons in that action are not to be enforced mechanically; a complaint should not be dismissed on the basis of a short delay unless the claimant is prejudiced by the delay. A certified complaint is sufficient; verification on oath is not a strict requirement.
Normal procedures for civil actions apply, including discovery and summary judgment. A claimant to property has the right to a jury trial of a forfeiture action.
A claim for such property must be filed by filing an answer to the forfeiture action in accordance with the Rules of Court.
Where the State has not instituted forfeiture proceedings under 2C:64-3, the owner or other holder of an interest in seized property may assert his or her claim to such property by means of a replevin action. However, a motion within the criminal action may be used for the purpose, especially where the claim raises no disputed issues.
2C:64-3. Forfeiture Procedures.
- Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.
- The complaint shall be verified on oath or affirmation. It shall describe with reasonable particularity the property that is the subject matter of the action and shall contain allegations setting forth the reason or reasons the article sought to be or which has been seized is contraband.
- Notice of the action shall be given to any person known to have a property interest in the article. In addition, the notice requirements of the Rules of Court for an in rem action shall be followed.
- The claimant of the property that is the subject of an action under this chapter shall file and serve his claim in the form of an answer in accordance with the Rules of Court. The answer shall be verified on oath or affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made in behalf of the person entitled to possession by an agent, bailee or attorney, it shall state that he is duly authorized to make the claim.
- If no answer is filed and served within the applicable time, the property seized shall be disposed of pursuant to N.J.S.2C:64-6.
- If an answer is filed, the Superior or county district court shall set the matter down for a summary hearing as soon as practicable. Upon application of the State or claimant, if he be a defendant in a criminal proceeding arising out of the seizure, the Superior or county district court may stay proceedings in the forfeiture action until the criminal proceedings have been concluded by an entry of final judgment.
An attention to detail in analyzing both the facts and plain language of the law is indispensable when dealing with high stakes forfeiture matters. The court is not required to delay a forfeiture civil proceeding until a criminal case is resolved. Criminal cases can drag on for years. When dealing with valuable property that will lose significant value with the passage of time, it is important to consider the pros and cons of contesting a forfeiture matter as soon as possible.
- Any person with a property interest in the seized property, other than a defendant who is being prosecuted in connection with the seizure of property may secure its release pending the forfeiture action unless the article is dangerous to the public health, safety and welfare or the State can demonstrate that the property will probably be lost or destroyed if released or employed in subsequent criminal activity. Any person with such a property interest other than a defendant who is being prosecuted, prior to the release of said property shall post a bond with the court in the amount of the market value of the seized item.
A little know fact is that a bond can be posted to secure the release of seized property to its rightful owner pending resolution of the forfeiture proceeding.
- The prosecuting agency with approval of the entity funding such agency, or any other entity, with the approval of the prosecuting agency, where the other entity’s law enforcement agency participated in the surveillance, investigation or arrest which is the subject of the forfeiture action, may apply to the Superior Court for an order permitting use of seized property, pending the disposition of the forfeiture action provided, however, that such property shall be used solely for law enforcement purposes. Approval shall be liberally granted but shall be conditioned upon the filing of a bond in an amount equal to the market value of the item seized or a written guarantee of payment for property which may be subject to return, replacement or compensation as to reasonable value in the event that the forfeiture is refused or only partial extinguishment of property rights is ordered by the court.
- If the property is of such nature that substantial difficulty may result in preserving its value during the pendency of the forfeiture action, the Superior or county district court may appoint a trustee to protect the interests of all parties involved in the action.