This is a forfeiture action instituted pursuant to N.J.S.A. 2C:64-3. Defendants have filed a motion to dismiss the complaint or, in the alternative, granting summary judgment and ordering the return of the subject vehicle.
Plaintiff has moved for an order permitting use of the vehicle pending disposition of the forfeiture action pursuant to N.J.S.A. 2C:64-3(h).
In the course of monitoring a court-authorized wiretap on one Aldo's telephone, a call was intercepted to defendant Jones' telephone on March 3, 1981. On March 7, 9, 11 and 14, 1981 additional calls were intercepted which contained allegedly drug-related conversations.
As a result of the last conversation on March 14, at 8:55 a.m., Aldo's residence in West New York was placed under surveillance. At 11:00 a.m. on that day a person was observed leaving the residence and entering the Cadillac automobile which is the subject of this action and is fully described in the caption. Based upon the intercepted phone conversations between Aldo and Jones and the surveillance, an investigator has expressed the view in affidavit form that this vehicle was being used in a narcotics distribution network.
On March 18, 1981, pursuant to a warrant issued by a judge of the Superior Court, a search was conducted of the residence of defendant Ellison Jones in Hackensack, New Jersey, which disclosed a tinfoil packet of cocaine, among other things. A simultaneous raid was conducted on the Aldo residence in West
New York, uncovering 1.68 pounds of cocaine and 1.8 pounds of marijuana. Following the search of the Jones residence, investigators from the Hudson County Prosecutor's Office seized the subject Cadillac automobile. An affidavit submitted upon application for the search warrant stated that defendant Jones "has been arrested numerous times for drug related offenses." The warrants issued were for the person, premises and motor vehicle of Aldo, but only for the person and premises of Jones.
Although the vehicle was actually seized on March 18, 1981, an order was entered on April 14, 1981 by the Superior Court authorizing the Hudson County Prosecutor to seize the subject vehicle "pursuant to N.J.S. 2C:64-1 et seq. and subject to the requirements of N.J.S. 2C:64-3." This order was based upon an affidavit by a prosecutor's investigator reciting the history of the intercepted telephone calls, issuance of search warrants, and actual search of the premises, culminating with the seizure of the vehicle on March 18, 1981.
On April 20, 1981 the complaint in this action was filed.
Defendant first argues that the forfeiture action was not "instituted within 30 days of the seizure," as required by N.J.S.A. 2C:64-3(a) (now 90 days as amended by L. 1981, c. 290). He argues that more than 30 days elapsed between the seizure on March 18 and the filing of the complaint on April 20. Thus it is asserted that the complaint should be dismissed. The simple answer to this argument is that the complaint was filed within the time period permitted by the statute, as computed pursuant to R.R. 1:3-1. The last day of the period computed in accordance with the rule was April 17, 1981, which was Good Friday, a legal holiday. This was, of course, followed by Saturday and Sunday and thus the complaint was properly filed on Monday, April 20, 1981. Defendants' motion to dismiss the complaint on the ground that it was not timely filed is denied.
Defendants' next ground for dismissal or summary judgment has more substance. It is contended that the vehicle was seized illegally on March 18, 1981. Prosecutor's detectives had no warrant to search ...