State v. U.S. Currency

• Decision Date: 17 January 1990
• Parties: STATE of New Jersey, Plaintiff, v. UNITED STATES CURRENCY, Namely One Thousand Three Hundred and Ten Dollars ($1310.00) and 120 Livingston Street, Westfield, New Jersey, Defendant.
• Court: New Jersey Superior Court

Page 241

239 N.J.Super. 241

570 A.2d 1304

STATE of New Jersey, Plaintiff, v. UNITED STATES CURRENCY, Namely One Thousand Three Hundred and Ten Dollars ($1310.00) and 120 Livingston Street, Westfield, New Jersey, Defendant.

Superior Court of New Jersey, Law Division Union County.

Decided Jan. 17, 1990.

Harold C. Knox, Elizabeth, for plaintiff.

Amy Bard, West Orange, for defendant Joseph Lundy.

Robert T. Pickett, West Orange, for defendant Mary Lundy.

WERTHEIMER, J.S.C.

This matter comes before the court via a forfeiture hearing pursuant to N.J.S.A. 2C:64-1 et seq. wherein the State seeks an order for forfeiture against defendants' interests in real property located at 120 Livingston Street, Westfield, New Jersey. There appears to be no reported case wherein the State has sought to apply the statute against real property.

The applicable statute, N.J.S.A. 2C:64-1, reads in pertinent part:

(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 ... 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:64-3 details the procedures to be followed to implement forfeiture. Subsection (f) of that statute raises the rebuttable presumption that the property was utilized in furtherance of an unlawful activity through evidence of a conviction of a criminal offense in which the seized property was used for said activity. The question that faces this court, therefore, is what interest in said property, if any, is subject to forfeiture and to what extent. A review of the pertinent history concerning the property's ownership is necessary in order to consider these questions.

Joseph Lundy and Mary Price were married in March 1961 and purchased 120 Livingston Street (hereinafter "the property") as tenants by the entirety in March 1968. One child, Joseph, Jr., was born of the marriage. In 1971, Mary Lundy separated from Joseph, Sr., left the property and took up residence elsewhere in Union County. Joseph and Mary remained married but continued to live separate and apart at all relevant times thereafter. Joseph, Jr. remained with his father at the property until he became emancipated in 1984.

Although separated from her husband, Mary would visit the property over the years to look in on her son, husband and the property on an average of once a month. Because she did not live there and had not maintained intimate relations with her husband, Mary testified that her visits were limited to first floor common areas, e.g., the living room, kitchen and bathroom.

Joseph was arrested in 1983 on an unrelated possession of CDS charge but he never told Mary. Throughout the years, Joseph maintained the property and paid the mortgage, taxes, utilities and other expenses without contribution from Mary, despite the fact from 1986 forward he was unemployed. Mary was aware of his unemployment but never concerned herself with how Joseph met those expenses.

On January 30, 1988, Joseph Lundy was arrested by the Westfield Police Department on charges which alleged that he distributed drugs from the property. This court finds, as a result of this hearing, previous plea negotiations and the materials submitted in support of a search warrant for said property, that Joseph Lundy used the property in furtherance of his drug distribution scheme, specifically by holding, packaging and selling CDS from the premises. On April 28, 1988 the State initiated this action in forfeiture against certain items found in the house and the real property in question. Only the latter is in issue now.

Testimony at the hearing divulged that Joseph and Mary agreed at the time of their separation that he was to remain on the premises and utilize it for their son's benefit while he was a minor. Thereafter, the property was to be sold at an unspecified point in time, but such a sale was never effected. From November 1986 on, Joseph claims to have had difficulty in making his mortgage payments and the mortgage company moved to foreclose circa March 1988. He professes that is the reason he transferred his interest in the premises to Mary in July 1988. On January 9, 1989, Joseph Lundy entered a guilty plea before this court to counts 1 and 2 of indictment no. 88-05-713 which alleged possession of CDS (cocaine) and possession with intent to distribute.

Defendants oppose the State's application on the following grounds:

(1) Mary Lundy is an innocent purchaser and owner and is thereby protected from forfeiture by N.J.S.A. 2C:64-5(b);

(2) The transfer to Mary Lundy in July 1988 extinguished Joseph's interest in the property;

(3) Had Joseph known of the State's intent to seek forfeiture of the property he would not have entered a plea of guilty; and

(4) The State has waived its right to seek forfeiture by not making same a condition of defendant's guilty plea.

The findings of this court leave no doubt that the property was used to facilitate the CDS distribution scheme Joseph pursued and, therefore, the property is subject to forfeiture as to his interest. However, at the time of the illegal activity Mary was a tenant by the entirety and at the time of the hearing she was the sole owner. What do these facts portend?

This court has little difficulty in disposing of Mary's claim that she was an innocent purchaser of Joseph's interest and, therefore, protected from the forfeiture law. Her "purchase" in July 1988 of Joseph's tenancy by the entirety was at best untimely, for if a judgment of forfeiture is entered it would "relate back to the commission of the wrongful act and takes date from the wrongful acts, not from the date of sentence or decree." Spagnuolo v. Bonnet, 16 N.J. 546, 559, 109 A.2d 623 (1954). Title to all of Joseph's interest, therefore, vested in the State, absent some other viable defense, on January 30, 1988 (the time the search warrant was executed), e.g., the latest time possible for the commission of the illegal act. Spagnuolo, supra at 560, 109 A.2d 623; see also Farley v. $168,400.97, 55 N.J. 31, 40, 259 A.2d 201 (1969), State v. Rodriquez, 138 N.J.Super. 575, 578, 351 A.2d 784 (App.Div.1976), aff'd 73 N.J. 463, 375 A.2d 659 (1977).

Therefore, Joseph's transfer of his interest to Mary is void ab initio as his title had previously vested in the State. Additionally, his protestation that he would not have pled guilty if he knew the State was seeking forfeiture is specious and is belied by the fact that the forfeiture action was initiated on April 28, 1988, and service of same was...