On appeal from Superior Court of New Jersey, Law Division, Essex County.
J. H. Coleman, Deighan and Baime.*fn1The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
[230 NJSuper Page 453] The crucial questions raised in this appeal are whether (1) an automobile used to cause the death of another, contrary to N.J.S.A. 2C:11-5, is subject to forfeiture under N.J.S.A. 2C:64-1a(2) and (2) an unjustifiable delay in serving the summons and complaint for forfeiture warrants dismissal of the complaint. The trial judge dismissed the verified complaint for forfeiture on the ground that the complaint failed to state a cause of
action. R. 4:6-2(e). He denied a motion to dismiss for failure to serve the summons and complaint as required by R. 4:4-1. We hold that the complaint stated a cause of action but should have been dismissed for failure of timely service.
On October 1, 1987, an investigator of the Essex County Prosecutor's Office filed a criminal complaint against Anthony Matarazzo charging him with causing death by auto. The complaint charged Matarazzo with "causing the death by auto of Steven Janczewsky by striking him with a 1986 Subaru . . . while driving at a high rate of speed, far in excess of the legal speed limit, and in a reckless manner . . . in violation of N.J.S.A. 2C:11-5, a crime of the Third Degree." The complaint alleged that the offense occurred on April 26, 1986. The criminal charge was still pending at the time of oral argument.
Anthony Matarazzo, the owner and operator of the car, (claimant) was arrested on October 1, 1987. The 1986 Subaru was seized at or about the time of the arrest. A verified complaint for forfeiture of the car was received by the Clerk of the Superior Court in Trenton on December 23, 1987. The Clerk's Office returned the complaint to the Prosecutor's Office because the caption contained the designation "Special Civil Part." The Prosecutor's Office was advised to file the complaint in Essex County. This communication was received by the Prosecutor's Office on January 11, 1988. The "Special Civil Part" designation was removed and the complaint was resubmitted immediately to the Superior Court Clerk in Trenton. The corrected complaint was filed by the Clerk on January 13, 1988. The complaint and summons were served on Matarazzo on March 8, 1988.
On March 3, 1988, the Prosecutor's Office filed a motion pursuant to N.J.S.A. 2C:64-3h for authorization to use the Subaru pending disposition of the forfeiture complaint. The claimant filed a cross-motion to (1) dismiss the forfeiture complaint, (2) return the car to him, and (3) dismiss plaintiff's motion to use the car. A hearing on the motion and cross-motion
was conducted on March 18, 1988. At the conclusion of the hearing, the judge dismissed the complaint for failure to state a claim upon which relief can be granted. R. 4:6-2(e). He denied the claimant's applications to dismiss the forfeiture complaint for failure to file the complaint timely and for failure to issue the summons within 10 days after the complaint was filed. The State has appealed from the dismissal of the complaint and the claimant has cross-appealed.
In its appeal, the State contends "the trial court erred in dismissing the complaint since the complaint clearly stated a claim for relief and since no facts were presented to the court contradicting the allegations in the complaint." The State argues that although the record is not clear as to why the complaint was dismissed, the judge labored under the erroneous legal perception that use of the car in an ongoing criminal enterprise, rather than a single criminal episode, was required before a forfeiture was authorized by the legislature.
Forfeitures in this State are controlled by N.J.S.A. 2C:64-1 et seq. A complaint for forfeiture is an in rem action, not against the owner or possessor of the property but against the property itself, which is treated as the real offender. State v. 1979 Pontiac Trans Am, Color Grey, 98 N.J. 474, 480 (1985); Spagnuolo v. Bonnet, 16 N.J. 546, 560 (1954); State v. Moriarty, 97 N.J. Super. 458, 473 (Law Div.1967), aff'd sub nom. in Farley v. $168,400.97, 55 N.J. 31 (1969). This theory of forfeiture is based on the misuse of the property rather than resulting from the commission of an offense by its owner or user. It has been said that our statutory forfeiture "is limited to the offending property itself, 'which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimated and insentient.' [citations omitted]." Farley v. $168,400.97, supra, 55 N.J. at 37-38. A legislative or statutory forfeiture ascribes to the property a power of complicity and guilt in the wrong. By contrast, in a criminal prosecution "it is the wrongdoer in person who is
proceeded against, convicted and punished." Various Items of Personal Property v. United States, 282 U.S. 577, 580-581, 51 S. Ct. 282, ...