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State v. One 1988 Honda Prelude

Decided: December 6, 1991.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ONE 1988 HONDA PRELUDE, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Michels and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

The State, through the Passaic County Prosecutor's Office, appeals from the dismissal of its complaint seeking forfeiture of a 1988 Honda Prelude automobile with Pennsylvania registration, allegedly owned by Diana M. Perry and used by her to facilitate the perpetration of illegal acts pursuant to N.J.S.A. 2C:64-1(a)(2). We reverse and remand.

On October 19, 1990 at approximately 12:45 a.m., Perry was driving her 1988 Honda automobile in Passaic accompanied by Darryl Lipscomb. She stopped at one point and Lipscomb got

out of the car, went into an alleyway for a few seconds and returned to the vehicle. As they proceeded, Perry drove through a red light at the intersection of Main and Summer Streets, whereupon she was stopped by a marked police vehicle which had had Perry's vehicle under surveillance from the time she first dropped Lipscomb off at the alleyway. As one of the officers approached the vehicle, he observed an object thrown out of the driver's side window. When retrieved, the object was found to be a clear plastic bag containing cocaine. Perry and Lipscomb were arrested and the automobile was impounded.

Perry was ultimately charged with possession of cocaine (N.J.S.A. 2C:35-10a(1)), possession of CDS in a vehicle (N.J.S.A. 39:4-49.1), improper passing (N.J.S.A. 39:4-85), and failure to stop (N.J.S.A. 39:4-115b). Lipscomb was charged with possession of cocaine, attempted assault (N.J.S.A. 2C:12-1(a)), and resisting arrest (N.J.S.A. 2C:29-2). Prior to the probable cause hearing in the municipal court, the State downgraded the indictable complaint to charge Perry and Lipscomb with possession of narcotics paraphernalia (N.J.S.A. 2C:36-2), Perry with possession of CDS in a vehicle (N.J.S.A. 39:4-49.1), and Lipscomb with simple assault and resisting arrest.

On December 3, 1990, the State filed a civil complaint seeking forfeiture of the automobile owned by Perry pursuant to N.J.S.A. 2C:64-1 et seq. In accordance with Rule 4:67-2(a), an order was issued directing Perry to show cause why her vehicle should not be forfeited. Perry cross-moved for dismissal of the complaint and for leave to file an answer out of time. After several adjournments, the matter was finally heard on March 8, 1991, resulting in the order under review of March 25, 1991 dismissing the forfeiture complaint with prejudice. The State appeals. By order of July 29, 1991, we granted a motion by the attorney general to appear and argue as amicus curiae. On September 25, 1991, we denied the State's motion to supplement

the record.*fn1

In dismissing the complaint the trial judge relied upon our decision in State v. One (1) 1979 Chevrolet Camaro Z-28, 202 N.J. Super. 222, 494 A.2d 816 (App.Div.1985), in which we concluded that the language "unlawful activity" and "illegal acts" used in N.J.S.A. 2C:64-1a(2) refers only to crimes, i.e., indictable offenses, and not disorderly persons offenses. Id. at 230, 494 A.2d 816. Thus, Perry argues that since the ultimate charges against her were disorderly persons offenses and not indictable, her vehicle cannot be forfeited. The trial judge agreed.

On this appeal, the prosecutor argues that he has no quarrel with our holding in State v. One (1) 1979 Chevrolet Camaro Z-28, but observes that the court there did not require an arrest, indictment or conviction, but simply found that the terms "unlawful activity" and "illegal acts" should be interpreted to mean "indictable, unlawful activity" and "indictable, illegal acts." Since the unlawful activity and illegal acts alleged to have been facilitated by Perry were indictable, the facts that the offenses were downgraded and that she was ultimately acquitted are thus irrelevant, argues the prosecutor.

Courts have permitted forfeiture even when all criminal charges are completely dismissed on the State's motion. State v. Rodriguez, 130 N.J. Super. 57, 324 A.2d 911 (App.Div.), certif. denied, 66 N.J. 325, 331 A.2d 24 (1974). The United States Supreme Court has held that even a complete and full acquittal could not bar a forfeiture action. See One Lot Emerald Cut Stones and One ...


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