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State v. A 1971 Datsun

Decided: February 6, 1976.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
A 1971 DATSUN, NEW JERSEY REGISTRATION UGO-841 V.I.N. PL 510896770 (OWNED BY WILLIAM A. FEENEY), DEFENDANT-RESPONDENT



Lynch, Larner and Horn. The opinion of the court was delivered by Lynch, P.J.A.D.

Lynch

A charge of possession of a controlled dangerous substance with intent to distribute was lodged against William A. Feeney on August 17, 1974. The Bergen County Prosecutor thereafter filed a complaint for the forfeiture of a 1971 Datsun automobile which belonged to Feeney and which was allegedly utilized in the commission of the above offense.

An ex parte order for the seizure of the vehicle was entered pursuant to N.J.S.A. 24:21-35(g)(2). Feeney thereupon made a motion to retrieve the vehicle. Ultimately an order denying forfeiture and ordering the return of the vehicle to Feeney was entered. The State appealed. Pending disposition of the appeal a stay of the order of retrievement was entered by a single judge of this court.

The underlying facts follow. Information was conveyed by the Paramus Police Department to the Bergen County Narcotics Task Force that William Feeney would have in his possession on August 17, 1974 approximately one ounce of cocaine. A member of the task force, Kenneth Shelton, made arrangements to purchase this cocaine from Feeney on that date.

At 6:30 P.M. Feeney drove the vehicle subject to this proceeding to a parking lot of a bar in Paramus. Investigator Shelton arrived at the same place a few moments later. He signaled to Feeney to enter his vehicle. Feeney exited from his car with a yellow and black flashlight. He then entered Shelton's vehicle.

After Feeney's entry into Shelton's vehicle, Shelton proceeded to drive south on Forrest Avenue, in Paramus. Feeney removed from the flashlight a packet of white powder containing cocaine. After Shelton gave a prearranged signal to other members of the task force, they approached the vehicle and arrested Feeney.

N.J.S.A. 24:21-35(b)(4), under which this proceeding was brought, reads as follows:

b. The following shall be subject to forfeiture and no property right shall exist in them:

(4) All conveyances including aircraft, vehicles, or vessels, which are used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt . . . [any controlled dangerous substance or equipment designed to manufacture any controlled dangerous substance]. (Emphasis added).

Defendant, as well as the trial judge relies upon Ben Ali v. Towe , 30 N.J. Super. 19 (App. Div. 1954). Ben Ali interpreted N.J.S.A. 24:18-38.1, the predecessor of the statute involved in the instant matter. That statute authorized forfeiture of a vehicle if it was "used in, for or in connection with the violation." This language was interpreted to require a causal connection between the use of the car and the crime with which defendant was charged. The court failed to find this requisite connection between a charge of possession of a controlled dangerous substance and the use of the car.

Ben Ali is distinguishable from the problem presented in this appeal on two grounds. As already noted, Ben Ali interpreted the predecessor of N.J.S.A. 24:21-35(b)(4). The instant statute passed in 1971 is much broader since it allows forfeiture of a vehicle when it is used to transport or in any manner to facilitate the transportation, for the purpose of sale or receipt, of any controlled dangerous substance.

It should also be noted that the charge in this case is possession with intent to distribute a ...


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