State v. One 1979 Pontiac Sunbird

• Decision Date: 14 November 1983
• Citation: 468 A.2d 715,191 N.J.Super. 578
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. ONE 1979 PONTIAC SUNBIRD, Bernard J. Massari, and David Massari, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 578

191 N.J.Super. 578

468 A.2d 715

The STATE of New Jersey, Plaintiff-Respondent, v. ONE 1979 PONTIAC SUNBIRD, Bernard J. Massari, and David Massari, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 12, 1983.

Decided Nov. 14, 1983.

Dorothy L. Wright, Green Brook, for defendants-appellants (Jeffrey Fogel, Newark, of counsel; Dorothy L. Wright on the brief).

Kathleen Holly for plaintiff-respondent (Nicholas L. Bissell, Jr., Prosecutor of Somerset County, atty.; H. Edward Gabler, Watchung, on the brief).

Before Judges ANTELL, JOELSON and McELROY.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

In this forfeiture proceeding under N.J.S.A. 2C:64-3 defendant Bernard J. Massari (hereinafter "defendant") appeals from an order for summary judgment which extinguished his interest in, and ordered the forfeiture of, his automobile. The basis for the order under review is the allegation that the car was used by the owner's son, David Massari, to commit three robberies on July 5, 1982 with two women companions. David Massari was acquitted of the crimes by reason of insanity and we are uninformed as to the outcome of any criminal proceedings which may have been brought against his coparticipants.

Defendant contends on this appeal that he was denied due process because the forfeiture statute does not exempt from its compass, property whose owners are nonculpable in the sense that they had no prior knowledge of the wrongful use to which their property was put. The State's position is presented in a brief containing an argument of less than one-half page consisting in its entirety of the following:

The Appellate Division has determined that N.J.S.A. 2C:64-1 et seq. is constitutional when applied to the innocent owners of automobiles used to facilitate crime. State v. One (1971) Datsun, 189 N.J.Super. 209, 459 A.2d 1183 (App.Div.1983).

The Datsun case was not approved for publication until May 25, 1983 and the prosecutor's brief was filed more than a week earlier. R. 1:36-3 specifically states that "[n]o unpublished opinion shall constitute precedent or be binding upon any court." However, it has since been approved for publication and appears at 189 N.J.Super. 209, 459 A.2d 1183 (App.Div.1983).

For reasons to be explained we distinguish the constitutional question considered in Datsun from that herein presented. But that decision is relevant in another respect so as to mandate a reversal and remand for further proceedings although not noted by either the State or defendant. As in Datsun, the record before us is plainly insufficient to meet the statutory requirement that the property be used to further an unlawful purpose. The complaint asserts that after his arrest David Massari admitted the crimes and the use of his father's car. The papers in support of the State's motion for summary judgment consist of a brief to which were annexed copies of David Massari's unsworn written statement to the police together with the unsworn statements of his accomplices. Disregarding for present purposes problems arising from the hearsay character of the evidence relied on, the information submitted to the court was verified by a detective, who identifies himself as "one of the investigating officers," only "to the best of my knowledge, information and belief." Bernard Massari's unverified answer denies the material allegations of the complaint, asserts his lack of prior knowledge that his car would be used for an unlawful purpose and asserts the unconstitutionality of the statute. These circumstances match those considered in Datsun and it was there decided that the State's factual allegations, verified only on information and belief, were inadequate. It was held that the State would have to prove its claim in a plenary hearing and the matter was remanded accordingly.

Because this matter must therefore now be fully reconsidered and because our view of the legal and constitutional context within which the forfeiture statute should be considered differs from that expressed by the trial judge in his letter opinion of December 23, 1982, we will discuss, for the guidance of the trial judge and the parties, the principles which must govern further proceedings on the remand.

The forfeiture statute, N.J.S.A. 2C:64-1 et seq. was enacted as part of the New Jersey Code of Criminal Justice by L. 1978, c. 95, effective September 1, 1979. It was thereafter amended on January 23, 1980 and September 24, 1981. Until the 1981 amendment, N.J.S.A. 2C:64-1 in pertinent part provided:

a. The defendant's interest [emphasis supplied] in the following shall be subject to forfeiture and no property rights shall exist in them:

(1) Controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices and untaxed cigarettes. 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, 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.

* * *

N.J.S.A. 2C:64-5 provided:

No property subject to seizure under this chapter shall be forfeited unless it shall appear that the owner of the property or his agent was a consenting party or privy to its unlawful possession, use or sale, nor shall any forfeiture under this chapter affect the rights of any person holding an interest in property subject to seizure under this chapter 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. [Emphasis supplied].

In 1981 both sections were amended to their present form. N.J.S.A. 2C:64-1 no longer limits forfeiture to a defendant's ¹ interest in the property. It now reads: "Any interest in the following shall be subject to forfeiture...;" and the interdicted property is specified as it was before the amendment. N.J.S.A. 2C:64-5 now takes the following form:

No forfeiture under this chapter shall affect the rights of any lessor or any person holding a protected 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....

Thus the amendment excised the exemption from forfeiture for an owner of property who had not consented and was not privy to the unlawful use of this property.

In reaching his result the trial judge applied the conventional logic which follows from the in rem nature of the forfeiture proceeding which "is considered as directed against the thing itself, not merely the possessor's interest in it." Spagnuolo v. Bonnet, 16 N.J. 546, 560, 109 A.2d 623 (1954). It is reasoned therefrom that the owner's innocence of wrongdoing is irrelevant. The notion first appeared in the biblical practice of the deodand by which the object, animate or inanimate, which had caused harm was "given to God" on the fiction that it had committed a wrong. In more recent times the result finds its justification in the desirable purpose of discouraging the careless lending of personal property which may thereafter be used to further an illicit purpose. For an historical review of forfeiture law see Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 reh'g den. 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974), and United States v. U.S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).

Generally, forfeitures are disfavored in the law. State v. One (1) Ford Van Econoline, 154 N.J.Super. 326, 331-32, 381 A.2d 387 (App.Div.1977), certif. den. 77 N.J. 474, 391 A.2d 489 (1978). As the Supreme Court said in Coin and Currency, supra if it "were writing on a clean slate," where a Legislature fails to express an exemption for the property of innocent owners the Court would not "readily infer" that the Legislature intended a meaning other than that "the property shall be seized only if its owner significantly participated in the criminal enterprise...." 401 U.S. at 719, 91 S.Ct. at 1044. However, the court recognized that centuries of history support the claim that such statutes "have an extraordinarily broad scope." Ibid. Nevertheless, we have said that forfeiture statutes should be strictly construed "and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation." State v. One (1) Ford Van Econoline, supra 154 N.J.Super. at 332, 381 A.2d 489 (quoting 37 C.J.S., Forfeitures § 4b).

Our treatment of the issue here presented will be guided by the expressions of the Supreme Court of the United States in Calero-Toledo v. Pearson Yacht Leasing Co., supra. That decision leaves no doubt that the forfeiture of property belonging to innocent owners does not in itself constitute the taking of property without just compensation. 416 U.S. at 680, 94 S.Ct. at 2090. But the language in the opinion's closing paragraphs at 416 U.S. 689-90, 94 S.Ct. at 2094-95 has been followed by numerous courts in relieving the harshness of forfeiture statutes in such circumstances. After noting that serious constitutional questions could arise from the " 'broad sweep' " (416 U.S. at 688, 94 S.Ct. at 2094) of forfeiture statutes the court alluded to an earlier intimation in Peisch v. Ware, 8 U.S. (4 Cranch) 347, 363, 2 L.Ed. 643 (1808) that forfeitures can be justified only where it lies within the power of the owner to prevent the abuse for which the forfeiture proceeding was begun. In the words of Chief Justice Marshall in that case, "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." The Supreme Court then went on to state the following:

It...