Rosemary Higgins Cass, J.s.c.
In this replevin action brought under N.J.S.A. 2A:59-1 et seq., plaintiff William L. Johnson, Sr. (hereinafter plaintiff) seeks the return of a .38 caliber Smith and Wesson revolver seized by the Irvington police on March 5, 1980 and subsequently delivered into the custody of George L. Schneider, Essex County Prosecutor (hereinafter prosecutor). While plaintiff was charged with aggravated assault in the shooting of another, the grand jury refused to indict him and the matter was dismissed.
This action was commenced by the filing of a complaint January 29, 1985 with service upon the prosecutor, County of Essex and the Township of Irvington (hereinafter Irvington). Irvington filed a timely answer and as between plaintiff and Irvington the matter was settled and a stipulation of dismissal filed under date of June 4, 1985.
Defendants prosecutor and County of Essex filed an answer, later amended, then brought a motion for dismissal of plaintiff's complaint for failure to state a claim upon which relief could be granted, pursuant to R. 4:6-2(e).
The sole issue before the court is as to the applicable statute of limitations. It is prosecutor's and county's contention that plaintiff is barred from proceeding, either by the two-year statute of limitations under the New Jersey Tort Claims Act (N.J.S.A. 59:1-1 et seq.) or the three-year statute of limitations contained in the forfeiture statute (N.J.S.A. 2C:64-1 et seq.). Plaintiff contends that N.J.S.A. 2A:14-1 governs and that the statute of limitations in this action is six years. I hold that the matter is controlled by the three year statute of limitations in N.J.S.A. 2C:64-8 and plaintiff's action is time barred.
Since this action sounds in replevin the Tort Claims Act is not applicable. See N.J.S.A. 59:1-4; Lloyd v. Borough of Stone Harbor, 179 N.J. Super. 496 (Ch.Div.1981). More importantly, as to articles seized by the State or its subdivisions, the Legislature has established separate procedures for their forfeiture or return in N.J.S.A. 2C:64-1 et seq. It is to these one must look to determine the controlling limitation on return of articles seized. See State v. Howery, 171 N.J. Super. 182 (App.Div.1979).
Property subject to forfeiture is defined in N.J.S.A. 2C:64-1 and its seizure permitted pending criminal prosecution. Within its intendment certain articles, including "firearms which are unlawfully possessed, carried, acquired or used," are designated prima facie contraband. N.J.S.A. 2C:64-1a(1). But, absent proof that a firearm was unlawfully possessed, carried, acquired or used, it is not prima facie contraband. Cf. State v. One 1979 Pontiac Sunbird, 191 N.J. Super. 578, 581-582 (App.Div.1983).
Under N.J.S.A. 2C:64-2 "prima facie contraband" is forfeited upon entry of judgment or dismissal of criminal proceedings "subject to rights of owners and others holding interests pursuant to [ N.J.S.A. ] 2C:64-5."
Property seized, other than prima facie contraband, and subject to forfeiture, may be acted against in a civil action instituted within 90 days of seizure by the State N.J.S.A. 2C:64-3(a). The fact that a prosecution does not terminate in conviction does not preclude forfeiture proceedings against the property. N.J.S.A. 2C:64-4(b).
N.J.S.A. 2C:64-5 provides that forfeiture does not affect rights of lessors or persons with a perfected security interest unless it shall appear that the person had knowledge of or consented to any act or omission upon which the right of forfeiture is based. This section of the statute has been interpreted, despite the elimination of the words "the owner" by the 1981 amendment to include within its protection "innocent
owners who did not consent to or know of the illegal use of their property and who did all that reasonably could be expected to prevent that use." State v. 1979 Pontiac ...