On appeal from Superior Court, Law Division, Passaic County.
Antell, Dreier and Havey. The opinion of the court was delivered by Antell, P.J.A.D.
The State appeals from an order dated March 24, 1988 directing that it return to defendant currency and jewelry seized as the alleged proceeds of illegal activity. The order was entered on the ground that the State failed to enforce its rights thereto pursuant to the Forfeiture Act, N.J.S.A. 2C:64-1 et seq., and therefore had no interest therein.
Defendant was arrested September 27, 1986 and later indicted for illegal possession of cocaine and possession of cocaine with intent to distribute, N.J.S.A. 24:21-19(a)(1) and N.J.S.A. 24:21-20. He pled guilty to one charge of possession and one charge of possession with intent to distribute, and he was sentenced to an aggregate term of imprisonment of 12 years with a six year parole disqualifier.
At the time of his arrest, $765 in United States currency and 12 items of jewelry were taken from defendant's person. Around the end of 1987, after he had begun serving his sentence, defendant wrote to the trial court, requesting return of his property. County Counsel, who was representing the State, objected to the request, whereupon the court advised defendant, by letter dated February 26, 1988, that a sworn statement was needed to support his claim of ownership. Defendant furnished such an affidavit about March 7, 1988. He explained therein that the $765 represented what remained from an $1100 cash payment he had received for carpentry work on an identified customer's house in Paterson, and that he was holding it for the October 1 rent payment coming due on his wife's apartment. Additionally, he identified the source of each item of jewelry. The articles consisted of watches, rings, gold chains, bracelets and religious emblems, most of which had
been left to him by his parents and brother. No papers were filed by the State to dispute defendant's claim of ownership.
N.J.S.A. 2C:64-1a specifies which properties are "subject to" forfeiture. Separately classified as "prima facie contraband" under § 1a(1) are: "controlled dangerous substances, firearms which are unlawfully possessed, carried, acquired or used, illegally possessed gambling devices and untaxed cigarettes." Enumerated under § 1a(4), are "Proceeds of illegal activities, including, but not limited to, property or money obtained as a result of the sale of prima facie contraband as defined by subsection a. (1). . . ."
N.J.S.A. 2C:64-3a directs the following:
Whenever any property other than prima facie contraband is subject to forfeiture under this chapter, such forfeiture may be enforced by a civil action, instituted within 90 days of the seizure and commenced by the State and against the property sought to be forfeited.
It is clear that the property in question is "property other than prima facie contraband."
On this appeal the State seems to argue that its title to the seized property vested at the time of seizure and, notwithstanding the above quoted statute, that the institution of a civil action under N.J.S.A. 2C:64-3a is not necessary to establish its title. Its reliance on Farley v. $168,400.97, 55 N.J. 31 (1969), and Spagnuolo v. Bonnet, 16 N.J. 546 (1954), for this proposition is misplaced.
In Farley a sum of cash money, which was the product of gambling activities, was discovered and seized by Hudson County officials. The Internal Revenue Service thereupon made a jeopardy tax assessment against the owner of the money for income taxes and interest. It was not until after the IRS assessment that the County obtained its judgment of forfeiture against the money. See State v. Moriarty, 97 N.J. Super. 458 (Law Div.1967). The New Jersey Supreme Court resolved the question of priority to the funds, as between the two claims, ...