State v. One 1985 Ford Bronco, New Jersey Reg. No. EUN-91K (Newell)

• Citation: 261 N.J.Super. 643,619 A.2d 668
• Decision Date: 01 February 1993
• Docket Number: EUN-91K
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. ONE 1985 FORD BRONCO, NEW JERSEY REG. NO., (Robert NEWELL, Jr.), Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 643

261 N.J.Super. 643

619 A.2d 668

STATE of New Jersey, Plaintiff-Respondent, v. ONE 1985 FORD BRONCO, NEW JERSEY REG. NO. EUN-91K, (Robert

NEWELL, Jr.), Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 9, 1992.

Decided Feb. 1, 1993.

Paul E. Newell, Freehold, for defendant-appellant (Friedman, Newell & Kass-Viola attorneys; Mr. Newell on the brief)

Mark P. Stalford, Asst. Prosecutor, Monmouth County, for plaintiff-respondent (John Kaye, Monmouth County Prosecutor, attorney; Mr. Stalford on the brief).

Before Judges KING, LANDAU and THOMAS.

The opinion of this court was delivered by

THOMAS, J.A.D.

Robert Newell, Jr. appeals from a trial judge's ruling forfeiting his 1985 Ford Bronco to the State. The basis of the decision was the judge's finding that the Bronco was "utilized in furtherance of" or "intended to facilitate" an unlawful activity within the meaning of N.J.S.A. 2C:64-1(a)(2).

On September 3, 1989, appellant Robert Newell, Jr., his brother, and some friends drove in the subject Bronco to Wall Stadium to watch stock car races. They arrived early so they went "four-wheeling" in the Bronco at a nearby gravel pit. After an hour of this sport, they drove back to the stadium and parked. Appellant and two others later returned on foot to the gravel pit and inflicted $40,000 in damages to construction equipment.

Later arrested, appellant pled guilty to third degree criminal mischief, contrary to N.J.S.A. 2C:17-3a(1) and was sentenced to five years probation, 150 hours of community service, fined $1,000, given a Violent Crimes Compensation Board penalty of $30 and ordered to make $13,500 restitution. He has been making periodic payments on his fine and restitution. The Bronco which appellant drove to Wall Stadium was also declared forfeit by the Prosecutor's Office.

These issues are raised on this appeal:

POINT ONE

The Language of the Forfeiture Statute Requires a Close Causal Relationship Between the Forfeited Property and the Unlawful Activity.

POINT TWO

There was Not a Sufficiently Close Relationship Between the Ford Bronco and the Criminal Mischief to Make Forfeiture Appropriate.

A. The Relationship between the Bronco and the Criminal Mischief is Incidental.

B. A "Substantial Connection" Between the Property and the Unlawful Activity is Required Before Forfeiture is Appropriate.

The forfeiture statute, N.J.S.A. 2C:64-1(a)(2), states in pertinent part:

Property subject to forfeiture 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 perpetuation of illegal acts, or buildings or premises maintained for the purpose of committing offenses against the State. (Emphasis added.)

Appellant contends that "because there is no such connection between [his] Ford Bronco and the criminal mischief committed, the forfeiture of the vehicle is improper and inappropriately extends the statute beyond its purpose." We agree and reverse.

First, it is necessary to restate that forfeitures are not favored in the law. State v. One (1) 1979 Chevrolet Camaro Z-28, 202 N.J.Super. 222, 229, 494 A.2d 816 (App.Div.1985); State v. One 1979 Pontiac Sunbird, 191 N.J.Super. 578, 584, 468 A.2d 715 (App.Div.1983); State v. One (1) Ford Van Econoline, 154 N.J.Super. 326, 331-332, 381 A.2d 387 (App.Div.1977), certif. denied, 77 N.J. 474, 391 A.2d 489 (1978). Further, the statute must be strictly construed, " '[i]n 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 387 (citation omitted). ¹

Before property can be forfeited, a judge must find that it was "utilized in furtherance of an unlawful activity" which may include "conveyances intended to facilitate the perpetuation of illegal acts." N.J.S.A. 2C:64-1(a)(2). While this phrase is not defined, we held in State v. One (1) 1979 Chevrolet Camaro Z-28, supra, 202 N.J.Super. at 231, 494 A.2d 816, that this means there must be a relationship between the subject instrumentality and the unlawful activity.

In Camaro Z-28, after a long investigation, the State obtained a warrant to search defendant, his home and his car. Large quantities of drugs were found at defendant's home but only a small quantity on his person or in the car. Possession of the small drug amounts were disorderly persons offenses which we held were wrongdoings for which forfeiture does not apply. Id. at 230, 494 A.2d 816. No evidence was developed that defendant actually had used his car to facilitate the drug distribution, the only indictable offense with which he was charged. We, therefore, concluded that the "use of the Camaro was not shown to bear any relationship with the unlawful [i.e. indictable] ... activities." Id. at 231, 494 A.2d 816. Adopting language from the opinion of this court, the Supreme Court confirmed the application of this principle when...