On Certification to the Superior Court, Appellate Division, whose opinion is reported at 230 N.J. Super. 451 (1989).
For affirmance in part; reversal in part; and remandment -- Chief Justice Wilentz and Justices Pollock, Clifford, Handler, O'Hern, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, Justice.
Appellant, State of New Jersey, acting through the Essex County Prosecutor's Office, seeks to forfeit the subject Subaru of claimant, Anthony Matarazzo. The Law Division dismissed the complaint for failure to state a claim. R. 4:6-2(e). The Appellate Division affirmed, relying on the strict construction of the forfeiture statute, N.J.S.A. 2C:64-3a, and considerations of due process. 230 N.J. Super. 451, 553 A.2d 869 (1989).
We granted the State's petition for certification, 117 N.J. 61, 563 A.2d 826 (1989), and now affirm in part, reverse in part, and remand the matter to the Law Division.
Claimant was charged on October 1, 1987, with causing death by auto in violation of N.J.S.A. 2C:11-5, a third-degree offense. The charges arose out of a drag race on April 20, 1986, on Bloomfield Avenue in Newark. On the same day that defendant was charged, officials of the Essex County Prosecutor's Office seized claimant's car, a 1986 Subaru. Thereafter, claimant was convicted of death by auto and sentenced to three years' probation, two hundred hours of community service, six months' suspension of his driver's license, and forfeiture of his employment with the Union Township Public Health Department.
During the pendency of the criminal proceeding, the State filed a complaint with the Clerk of the Superior Court, Law Division, seeking forfeiture of the Subaru pursuant to N.J.S.A. 2C:64-3a. The statute provides:
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.
Due to an error in the caption designating that the complaint was to be filed in the Special Civil Part, the clerk returned the pleading to the prosecutor on January 11, 1988, with instructions to refile it in the county of venue. The prosecutor
corrected the error, and on January 13, 1988, refiled the complaint with the Superior Court. For reasons unexplained in the record, the prosecutor did not issue a summons until February 23, 1988, forty-one days after filing the complaint. Subsequently, the summons and complaint were served on claimant on March 8, 1988.
Before service of the summons and complaint on claimant, 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 matter. Claimant filed a cross-motion for dismissal of the forfeiture complaint and return of the car. He based his motion on the failure of the complaint to state a claim, R. 4:6-2(e), and on the delay in filing the complaint, N.J.S.A. 2C:64-3a, and in issuing the summons, R. 4:4-1. The trial court dismissed the complaint for failure to state a claim on which relief could be granted, holding that claimant's Subaru did not fall within the definition of non- prima facie contraband contained in N.J.S.A. 2C:64-1a(2).
The State appealed the dismissal for failure to state a claim, and the claimant cross-appealed the denial of dismissal for failure to timely file the complaint and issue a summons. The Appellate Division affirmed the dismissal because the summons had not issued within ten days, contrary to Rule 4:4-1. In reaching that result, the Appellate Division also stated that the complaint had been timely filed, and that N.J.S.A. 2C:64-1a(2) encompasses automobiles used to kill someone as a result of the driver's reckless conduct. 230 N.J. Super. at 458, 553 A.2d 869.
Initially, we must determine whether the Appellate Division's construction of the rules requiring dismissal was correct. N.J.S.A. 2C:64-3c provides that "the notice requirements of the Rules of Court for an in rem action shall be followed" in ...