ASSEMBLY, No. 885
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman GARRETT
An Act concerning the procedures governing forfeiture and amending N.J.S.2C:64-1, N.J.S.2C:64-3, N.J.S.2C:64-4 and N.J.S.2C:64-5.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:64-1 is amended to read as follows:
2C:64-1. Property subject to [forfeiture] Forfeiture.
a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
(1) Controlled dangerous substances, [firearms] controlled substance analogs, immediate precursors, drug paraphernalia, weapons which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices [and], untaxed cigarettes and untaxed special fuels. These shall be designated prima facie contraband.
(2) All property which has been, or is intended to be, utilized in furtherance of [an unlawful activity] a crime, including, but not limited to, conveyances intended to facilitate the perpetration of [illegal acts] a crime, or buildings or premises maintained for the purpose of committing [offenses] a crime against the State.
(3) Property which has become or is intended to become an integral part of [illegal] criminal activity, including, but not limited to, money which is earmarked for use as financing for an illegal gambling enterprise.
(4) Proceeds of [illegal] criminal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1), proceeds of illegal gambling, prostitution, bribery and extortion.
b. Any article subject to forfeiture under this chapter may be seized by the State or any law enforcement officer as evidence pending a criminal prosecution pursuant to section 2C:64-4 or, when no criminal proceeding is instituted, upon process issued by any court of competent jurisdiction over the property, except that seizure without such process may be made when not inconsistent with the Constitution of this State or the United States, and when
(1) The article is prima facie contraband; or,
(2) The property subject to seizure poses an immediate threat to the public health, safety or welfare.
c. For the purposes of this section:
"Untaxed special fuel" means diesel fuel, No. 2 fuel oil and kerosene on which the motor fuel tax imposed pursuant to R.S.54:39-1 et seq. is not paid that is delivered, possessed, sold or transferred in this State in a manner not authorized pursuant to R.S.54:39-1 et seq. or P.L.1938, c.163 (C.56:6-1 et seq.).
(cf: P.L.1992, c.23, s.70)
2. N.J.S.2C:64-3 is amended to read as follows:
2C:64-3. Forfeiture procedures. a. Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture [may] shall be enforced by a civil action, instituted within [90] 10 days of the seizure and commenced by the State and against the property sought to be forfeited.
b. 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. When a prosecuting agency seeks to forfeit real property in residential use, the least intrusive means that will preserve the property for forfeiture shall be employed. A notice of lis pendens or an order restraining alienation shall preserve the government's interest in forfeiture pending final judicial determination of the forfeiture action.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
h. 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.
i. 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.
j. Evidence of a conviction of a criminal offense in which seized property was either used or provided an integral part of the State's proofs in the prosecution shall be considered in the forfeiture proceeding as creating a rebuttable presumption that the property was utilized in furtherance of an unlawful activity.
(cf: P.L.1989, c.279, s.1)
3. N.J.S.2C:64-4 is amended to read as follows:
2C:64-4. Seized [property; evidentiary use] Property; Evidentiary Use.
a. Nothing in this chapter shall impair the right of the State to retain evidence pending a criminal prosecution.
b. [The fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter.]With regard to seized property which is not prima facie contraband, forfeiture proceedings shall be precluded if:
(1) The prosecution terminates without a conviction except if prosecution was prevented or unnecessary because the owner of the seized property fled the jurisdiction or died; or
(2) Conduct constituting a crime resulted in a conditional discharge.
c. Nothing in subsection b. of this section shall be deemed to preclude forfeiture proceedings pursuant to this chapter:
(1) Against seized property which is prima facie contraband; or
(2) Against seized property if conduct constituting a crime resulted in a conviction of a disorderly or petty disorderly persons offense.
d. A forfeiture settlement may be negotiated when negotiating a criminal disposition which results in a conviction. However, a reasonable disposition of possible or pending criminal charges should not be compromised to obtain a greater forfeiture of property.
(cf: P.L.1981, c.290, s.49)
4. N.J.S.2C:64-5 is amended to read as follows:
2C:64-5. Seized Property; Rights of Owners and Others Holding Interests. a. No forfeiture under this chapter shall affect the rights of any lessor in the ordinary course of business or any person holding a perfected security interest in property subject to seizure unless it shall appear that such person had knowledge of or consented to any act or omission upon which the right of forfeiture is based. Such rights are only to the extent of interest in the seized property and at the option of the entity funding the prosecuting agency involved may be extinguished by appropriate payment.
b. Property seized under this chapter shall not be subject to forfeiture [if the owner of the property] unless the State establishes by a preponderance of the evidence that the owner was [not] involved in or aware of the [unlawful activity] crime and that the owner had done [all that could reasonably be expected] nothing to prevent the proscribed use of the property by an agent. A person who uses or possesses property with the consent or knowledge of the owner is deemed to be the agent of the owner for purposes of this chapter.
c. Property seized under this chapter shall not be subject to forfeiture if the property is seized while entrusted to a person by the owner or the agent of the owner when the property has been entrusted to the person for repairs, restoration or other services to be performed on the property, and that person, without the owner's knowledge or consent, uses the property for unlawful purposes.
d. Property seized under this chapter, which is not prima facie contraband, shall not be subject to forfeiture to the extent that the forfeiture would be disproportionate to both the gain from the conduct giving rise to the forfeiture and the nature and severity of the conduct.
(cf: P.L.1986, c.79, s.1)
5. This act shall take effect immediately and shall apply to all cases and appeals of cases pending on that date.
STATEMENT
Chapter 64 of Title 2C of the New Jersey Statutes governs the forfeiture of property used in the commission of illegal activities. This bill would clarify that the provisions of chapter 64 are applicable only to property used in the commission of crimes and are not applicable to property used in the commission of a disorderly or petty disorderly persons offense or motor vehicle offense. The bill amends N.J.S.2C:64-1 to change references to "crime" or "criminal" activity instead of "illegal" activity. Other technical amendments would conform the law to P.L.1992, c.23 concerning untaxed special fuel.
The bill amends N.J.S.2C:64-3 to provide that forfeiture proceedings shall be commenced by the State within 10 days of the seizure of the property and includes a provision concerning forfeiting procedures for residential property.
The bill amends N.J.S.2C:64-4 to preclude the forfeiture of property if the prosecution does not result in a conviction or if conduct constituting a crime resulted in a conditional discharge. Forfeiture would not be precluded, however, if the seized property was prima facie contraband or if conduct constituting a crime was prosecuted or resulted in a conviction of a disorderly or petty disorderly persons offense. A provision is added concerning negotiation of forfeiture settlements.
In addition, the bill amends N.J.S.2C:64-5 and provides that in order for property owned by a person who is not a defendant to be forfeited, the State must establish by a preponderance of the evidence that the owner was involved in or aware of the criminal activity and did nothing to prevent the illegal use of his property. Under present law, the burden is on the owner of the seized property to prove that he was not involved in or aware of the criminal activity which resulted in the seizure of his property.
The bill also amends N.J.S.2C:64-5 concerning proportionality and provides that property seized, which is not prima facie contraband, shall not be subject to forfeiture to the extent that the forfeiture would be disproportionate to both the gain from the conduct giving rise to the forfeiture and the nature and severity of the conduct.
The provisions of the bill would be applicable to all cases pending on the effective date.
Proposes a series of amendments to the statutes governing forfeiture.