On appeal from Superior Court, Law Division, Somerset County.
Antell, Joelson and McElroy. The opinion of the court was delivered by Antell, P.J.A.D.
[191 NJSuper Page 580] 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, A-3358-81T4 (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 R. 1:36-3 specifically states that "[n]o unpublished opinion shall constitute precedent or be binding upon any court."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 (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 ...