State v. 1987 Chevrolet Camaro, IROC-SZ28, N.J. Reg. ACA6800, VIN 1G1FP21F5HN145997
| Citation | 704 A.2d 90,307 N.J.Super. 34 |
| Decision Date | 07 January 1998 |
| Docket Number | N,IROC-Z28 |
| Parties | STATE of New Jersey, Plaintiff-Appellant/Cross-Respondent, v. 1987 CHEVROLET CAMARO,J. Reg. ACA6800, VIN 1G1FP21F5HN145997, Defendant-Respondent/Cross-Appellant. |
| Court | New Jersey Superior Court – Appellate Division |
Donald C. Campolo, Deputy Attorney General, Acting Essex County Prosecutor, for plaintiff-appellant/cross-respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).
Allen J. Schaefer, Jr., claimant, submitted a pro se brief.
Before Judges LONG, KLEINER and KIMMELMAN.
The opinion of the court was delivered by
KLEINER, J.A.D.
This appeal presents the question of whether a trial judge presiding in the Law Division, Special Civil Part, abused her discretion in dismissing with prejudice the in rem forfeiture complaint filed by plaintiff, the State of New Jersey, pursuant to N.J.S.A. 2C:64-1 et seq. seeking forfeiture of claimant Allen L. Schaefer, Jr.'s 1987 Chevrolet Camaro Z-28 for failure to answer interrogatories.
Claimant has filed a cross-appeal contending that the motion judge erred in failing to dismiss plaintiff's forfeiture complaint on grounds of double jeopardy, citing United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), 1 and on a theory of collateral estoppel. He raised both issues in a motion, which was denied, prior to the entry of the order dismissing plaintiff's complaint for failure to answer interrogatories.
We conclude that under the unique facts of this case, the judge abused her discretion in dismissing with prejudice plaintiff's complaint and therefore we reverse. For the reasons expressed in part VI, we conclude that the record on claimant's cross-appeal is inadequate to consider the issues raised on the merits. Accordingly, we reverse and remand for reconsideration of claimant's original motion which sought dismissal of plaintiff's complaint on collateral estoppel and double jeopardy grounds.
N.J.S.A. 2C:64-1 et seq., which creates a statutory scheme for forfeiture, was enacted as part of the New Jersey Code of Criminal Justice, Title 2C, by Laws 1978, Chapter 95, generally effective September 1, 1979. "A civil forfeiture proceeding is brought not against the owner or possessor of the property but as an in rem action against the property." State v. Seven Thousand Dollars, 136 N.J. 223, 232-33, 642 A.2d 967 (1994). Because the theory of forfeiture is " 'based on the misuse of the property rather than resulting from the commission of an offense by its owner or user[,]' ... under forfeiture law the property itself is considered the offender." Id. at 233, 642 A.2d 967 (quoting State v. One 1986 Subaru, 230 N.J.Super. 451, 455, 553 A.2d 869 (App.Div.1989) aff'd in part, rev'd in part, 120 N.J. 310, 576 A.2d 859 (1990)).
Generally, forfeiture statutes are disfavored in the law. State v. 1979 Pontiac Trans Am, 98 N.J. 474, 481, 487 A.2d 722 (1985); State v. One (1) Ford Van Econoline, 154 N.J.Super. 326, 331, 381 A.2d 387 (App.Div.1977), certif. denied, 77 N.J. 474, 391 A.2d 489 (1978); State v. One (1) 1979 Chevrolet Camaro Z-28, 202 N.J.Super. 222, 229, 494 A.2d 816 (App.Div.1985). "We have required that courts strictly construe forfeiture statutes against the State and 'in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation.' " Seven Thousand Dollars, supra, 136 N.J. at 238, 642 A.2d 967 (citations omitted).
In pertinent part, N.J.S.A. 2C:64-1, "Property subject to forfeiture," provides:
a. Any interest in the following shall be subject to forfeiture and no property right shall exist in them:
...
(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....
N.J.S.A. 2C:64-3 governs "Forfeiture Procedures" and contains the following provision:
a. Whenever any property other than prima facie contraband 2 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. (emphasis added).
Other provisions of this statutory section include: "the notice requirements of the Rules of Court for an in rem action shall be followed," N.J.S.A. 2C:64-3c; a claimant of the property sought to be forfeited shall file an answer in accordance with the Rules of Court, N.J.S.A. 2C:64-3d; and when an answer is filed, the court is directed "to set the matter down for a summary hearing as a soon as practicable," N.J.S.A. 2C:64-3f. Under specified circumstances, the summary hearing may be postponed pending disposition of a pending criminal proceeding, id., and the "prosecuting agency" may apply to the Superior Court for permission to use the seized property pending disposition of the forfeiture action, provided "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...." N.J.S.A. 2C:64-3h.
On July 20, 1993, the Essex County Prosecutor's Office, acting on behalf of the State of New Jersey, denominated as plaintiff, brought an in rem forfeiture action pursuant to N.J.S.A. 2C:64-1 et seq. in the Superior Court of New Jersey, Essex County Special Civil Part, for one 1987 Chevrolet Camaro Z-28 owned by claimant. Plaintiff's complaint alleged that claimant used the car to facilitate the commission of the crime of homicide or in the immediate flight thereafter. An answer to the civil complaint was filed on behalf of claimant pursuant to N.J.S.A. 2C:64-3d on August 2, 1993, generally denying the complaint's allegations and seeking dismissal of the complaint. On August 30, 1993, plaintiff filed a motion pursuant to N.J.S.A. 2C:64-3h seeking an order allowing the Essex County Prosecutor's Office to use claimant's vehicle pending disposition of the forfeiture action. Plaintiff provided a written guarantee for payment in the amount of $6,250 should forfeiture be refused. Plaintiff's motion was granted.
On December 6, 1993, an order was entered pursuant to N.J.S.A. 2C:64-3f staying all forfeiture proceedings until the completion of claimant's criminal trial.
After a jury trial, claimant was convicted of first-degree murder and theft on June 16, 1994, 3 and was sentenced on June 30, 1994, to a custodial term of life with a thirty-year period of parole ineligibility for the murder, and a concurrent six-month custodial term for the theft.
On May 1, 1996, claimant filed and was granted a motion to vacate a default judgment of forfeiture entered August 18, 1995, because he had not been properly notified of the forfeiture hearing conducted July 27, 1995.
On July 8, 1996, after the default judgment was vacated, claimant served interrogatories upon plaintiff and demanded answers thereto within thirty days pursuant to Rule 6:4-3. When no answers were provided, claimant filed a motion on September 3, 1996, to dismiss plaintiff's complaint without prejudice pursuant to Rule 6:4-3(b). That motion was unopposed. On October 25, 1996, the Honorable Edith K. Payne entered an order dismissing plaintiff's complaint without prejudice for plaintiff's failure to serve answers to interrogatories. 4 That order was served on Kevin McArdle, Director of Essex County's Forfeiture Unit. 5
Because the order of dismissal was without prejudice, claimant looked to Rule 4:23-5(a)(2) as the appropriate procedure for securing an order dismissing plaintiff's complaint with prejudice. Thus, when no interrogatory answers were provided by plaintiff during the 90-day period allotted by court rule, claimant filed a motion on January 27, 1997, to dismiss the complaint with prejudice under Rule 4:23-5(a)(2). 6 Plaintiff cross-moved for reinstatement of the complaint on February 13, 1997. In support of its application, plaintiff offered the certification of McArdle, who pleaded ignorance of the rules of civil procedure and the irrelevance of claimant's discovery requests in light of discovery previously provided him at and after his criminal trial. Importantly, McArdle attached to his certification answers to claimant's interrogatories.
Rule 4:23-5(a)(2) does not address the subject of "whether the service of responsive answers to interrogatories before the return date of a motion to dismiss with prejudice ... would be sufficient of itself to defeat the motion." Klajman v. Fair Lawn Estates, 292 N.J.Super. 54, 61 n. 3, 678 A.2d 289 (App.Div.), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996). As respects civil actions other than in rem forfeiture actions, we continue to adhere to the principles enunciated in Rodriguez v. Luciano, 277 N.J.Super. 109, 112, 649 A.2d 87 (App.Div.1994) (quoting Suarez v. Sumitomo Chemical Co., 256 N.J.Super. 683, 688-89, 607 A.2d 1057 (Law Div.1991)), that the eventual, untimely service of answers by the delinquent party does not in itself constitute "exceptional circumstances" within the meaning of Rule 4:23-5(a)(2).
Additionally, we find plaintiff's argument that the Essex County Prosecutor's Office is unfamiliar with the Rules Governing the Courts of New Jersey, and more particularly the Rules Governing Civil Practice, Parts IV and VI, see Pressler, Current N.J. Court Rules, as incomprehensible, unfathomable and unacceptable.
After several procedural delays, on April 4, 1997, claimant's motion was considered and granted, dismissing plaintiff's complaint with prejudice, ordering plaintiff to disburse to claimant $6,250, the amount as stated in plaintiff's written guarantee of payment, and denying plaintiff's cross-motion to reinstate its complaint.
In reaching her decision, the trial judge particularly noted...
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... ... See State v. 1987 Chevrolet Camaro , 307 N.J. Super. 34, 43-46, 704 ... ...
- State v. 1987 Chevrolet Camaro